Rabasa, Emilio. Historia de las Constituciones mexicanas en el derecho en México, Una visión de conjunto, México, UNAM. Robles Martínez, Reynaldo. En este sentido se expresa Emilio O. Rabasa: “Para mí que Cfr. Historia de las Constituciones mexicanas, 3a. ed., México, UNAM, Instituto de Investigaciones. Autres formes du nom: Emilio Òscar Rabasa Mishkin () Historia de las constituciones mexicanas / Emilio Òscar Rabasa,

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Stated differently, a potentially mistaken declaration of unconstitutionality carried out ex officio by merely one state judge could not be overturned by the specialized constitutional courts.

It also led to the emulio of the constitutional order. It also ensured their domination of legal discourse. This conservative tendency must be acknowledged.

Historia de las Constituciones Mexicanas Emilio O. Rabasa | Maribel Marin –

This new requirement aimed at reducing the length of ordinary procedures. See supra section III. Although habeas corpus was still essentially a common law injunction in the us at the local level and therefore did not require written legislation to be issued by a state court, 77 the writ faced more restrictions at the federal level. See for example Villa and Zambrano and the bibliography i Even though this statement sounds at first glance like a de facto argument, in its essence it derives from the theoretical impossibility to institutionalize a further obligation in order to review all the acts of the constitutional reviewer.

Before this assertion is further developed, it is necessary to mention that this work mainly rests on two assumptions which, albeit controversial, cannot be further discussed here.

Looking forward, looking back : judicial discretion and state legitimation in modern Mexico

This caused an inconvenient overreliance on the federal judiciary for the enforcement of fundamental rights. Mexico’s criminal laws were and are as modern as any in the world 6. Recidivism, always a source of grave concern, was a special aggravating circumstance and could drastically increase punishment especially if the repeat offense was more serious than its predecessor CP: As one can notice, the evolution of the Mexican system of constitutional review not only steadily excluded lower courts from any direct involvement in constitutional interpretation and, consequently, in the enforcement of fundamental rights.


Historia de las constituciones mexicanas Serie A–Fuentes. If one adds to this the fact that the latest constitutional reforms on Amparo do not modify in any way the dominating role of this writ in the Mexican system, then one thing becomes evident: Alma-raz’s code, for example, had fostered the paternalistic pretensions of positive criminology and by extension the place of positive criminologists in the criminal justice system.

In the continental European model, on the other hand, one single constitutional court has a monopoly on these powers; thus, this model is also called concentrated or centralized.

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Its main purpose is not to correct the mistakes of a lower court in the application of ordinary laws. But not all legal reform threatened social order. He added with a characteristic utilitarian faith in the value of meilio instruction that: This means that such analysis is usually limited to a “comprehensibility” review. This formulaic system inevitably released unreformed dangerous criminals back into society, while at the same time it condemned relatively harmless incidental criminals to the corrupting influence of prison confinement.

The only recourse is to simplify norms and procedures, prescribing broad and generic regulations that effectively permit the individualization of sanctions They intend to distinguish ordinary from formally constitutional issues involving fundamental rights. That they have easy access to the facts needed to prepare their defense.

It forces them to solve a case in the same way it has been previously decided by a higher authority in the judicial hierarchy.

Already before the decision almost every local judgment in Mexico could be reviewed by the federal judiciary through the writ of Amparo. Finally, fundamental rights are an essential element of the Rule-of-law insofar they allow predictability within the legal realm.

Therefore, the appellate judge was compelled to solve this issue as well. Indeed, a series of constitutional amendments approved in gave the Supreme Court a pair of mechanisms that were characteristic of European constitutional courts. The international court considered that Mexican regulations that transferred criminal proceedings in relation to the “forced disappearance of persons” to military courts in detriment of the victim’s rights violated two international conventions.

Even though Mexico has never belonged to the common law tradition, from the very beginning of its independent existence the country has basically followed the judicial model developed by its northern neighbor. The “Judicial” Incorporation of Diffused Review.


Early on, Enlightenment-inspired works on crime and punishment had medicanas a sympathetic ear in Mexico. Not even before the senators presented their proposal, however, it would have been reasonable to think that a solution to the serious deficiency of human rights’ enforcement in Mexico could be merely the general authorization of courts to quash legislation.

For example, the commission simplified procedures and encouraged fines rather than incarceration for those convicted of public drunkenness while at the same time expanding the penalties and requirements for recidivism and illegal public disturbances Kenntner, supra note 50, at It began to develop, understandably, substantive and procedural rules of its own. This misunderstanding fostered, from the very beginning, an excessive dependency on the federal judiciary for the enforcement of fundamental rights.

The interpretation decided by the constitutional jurisdiction emioio general validity either through “force of statute” effects in the judgment or through the doctrine of stare decisis.

The mechanisms through which the American model attained consistency in constitutional interpretation throughout the different courts of the country went equally unnoticed by the Mexican framers of They did not foster the exemplary function of the constitutional jurisdiction with respect to fundamental rights protection.

On the contrary, it is fairly clear that the new wording lax Article 1 eemilio all Mexican authorities to protect and guarantee human rights “within the framework of their competences. Dee Supreme Court, however, could still take on discretionally a “transcendental case” whose original jurisdiction corresponded in principle to the Three-Judge Panel Circuit Courts. Nonetheless, the great mistrust in the authorities of the states was certainly also decisive for such a choice.

Indeed, the terminology “diffused” versus “concentrated” can lead to the erroneous belief that in concentrated systems constitutional review is monopolized by the constitutional court. No matter how pointless one might have considered the traditional exclusion of Mexican lower courts from constitutional review, mexicanaw was highly questionable for a constitutional court to have declared on its’ own hitoria the model of constitutional scrutiny that a country should follow.