Value Determinants and Axiological Identity in the Constitutional Genesis of Latin American Nation States of 21th Century

Abstract

The article is devoted to the analysis of the axiological foundations of modern constitutionalism in Latin American countries. The mechanism of reflecting the transformation of social value systems in constitutional acts adopted at the turn of the 20th–21st centuries is studied in the context of overcoming the colonial legacy and responding to global challenges. Moving within an inherently comparative methodological research framework based on a synthesis of different comparative legal and anthropological approaches, the study’s main focus lies on the “legal genotype”, a concept allowing the constitution of a country to be not merely regarded a normative text, but rather a cultural phenomenon, a record of the historical path of its people that protects its identity. In order to evaluate the impact of colonial law (Recopilación de Leyes, 1680) on contemporary lawmaking, a historico‑legal analysis is employed. Using the example of Cuba, Nicaragua, Peru, and Bolivia, the study arrives at the result that the legal systems of Latin American countries exhibit a unique model of constitutional development distinct from their European counterparts. It can further be observed that the incorporation of values into the underlying constitutional structure is realized by means of: Establishing anticolonial state goals; Protecting cultural diversity and autonomy of indigenous peoples; An extended catalog of rights including rights of the “third” and “fourth” generation, such as collective rights or rights of vulnerable groups; Prioritizing regional over global integration as a safeguard against neocolonialism. A detailed analysis of the transformation of the constitution of Cuba (2019) and Nicaragua illustrates the paradigmatic shift from the principle of socialist distribution to the concepts of the “common good” and the protection of human dignity. The conclusion is stated that a fundamental ontological shift has and still is taking place in the Latin American region: constitutions are undergoing a transformation from being an instrument of organizing public power into becoming a mechanism for protecting the “civilizational code” of a nation. It could further be proven that the specificity of Latin American constitutionalism consists in giving direct legal effect to ethical imperatives — justice, solidarity, dignity — and in forming a legal identity that combines European traditions with autochthonous institutions.