Abstract

ROJAS, HÉCTOR DAVID. The Aggregation Strategy in Constitutions and the Absence of a General Will. Rev. Derecho Estado [online]. 2021, n.49, pp.199-213.  Epub Oct 07, 2021. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n49.11.

The aggregation strategy, as formulated by Gargarella, asserts that Latin-American constitutions have a common trait: they aggregate the interest of those who enact the text in contradictory clauses that fail to provide unique answers on constitutional matters. Elites benefit from ambiguity because they are able to have control over the political organization and solve tensions in their favour. This article argues that the accumulation strategy has two com ponents, to wit, an ambiguity thesis and an ambiguity adjudication thesis. This distinction is drawn to show that the lack of constitutional systemic coherence is not a fatal flaw because judicial interpretation and laws can harmonize the conflicting norms. This is exemplified with the case of international law, in which the interdependence thesis enables different generations of rights to fit together. Finally, I argue that adjudication among conflicting interests is an activity that can be mediated by a democratic procedure with epistemic qualities that is able to identify a common good as a ground for constitutional systemic coherence. This view is based on Rousseau's distinction between the general will and the will of all.

Keywords : Democracy; constitutionalism; government; Latin America; legitimacy; Rousseau.

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