Introduction

A Foundation is a promise, said Jacques Derrida in his fascinating article ‘Force of Law: The Mystical Foundation of Authority’. ¹ No founding moment is pure, for there is always ‘a call for self-conserving repetition’² It is in this paradoxical conflation of the promise and the past that the legal literature usually interprets the founding of a new constitutional moment.

¹ Jacques Derrida, ‘Force of Law: The Mystical Foundation of Authority’ (1990) 11 Cardozo Law Review 919.

²ibid.

³ See Lasse Thomassen, A Bizarre, Even Opaque Practice: Habermas on Constitutionalism and Democracy’ in Lasse Thomassen (ed), The Derrida-Habermas Reader (University of Chicago Press, 2006) 176; Bonnie Honig, Emergency Politics: Paradox, Law, Democracy (Princeton University Press, 2009) 12.

⁴Honig (n 3) 15.

⁵ See Maryam S Kham, ch 10 in this volume, who argues that the founding moment ‘need not have revolutionary origins, nor break completely with the old legal order’

This chapter will challenge the concept of ‘founding moment', usually related to those radical events by examining two interesting democratic transitions in Latin America: Brazil and Chile.

Derived from the so-called ‘post-liberal constitutionalism,^[624] whose focus consists in granting new rights to historically oppressed social groups through a new process of constitutionalisation ^[625] challenging some ofthe liberal constitutional standards, the first group has been in the spotlight of Latin American studies. Yet, Latin American, with its rich history of distinct forms of constitutionalisation and transitions from dictatorships to democracies, has plenty of other experiences that provide valuable insights about how their different moments founded new consti­tutional realities. Particularly interesting is how these transitions led to different moments of constitutionalisation. On the one hand, as happened in Brazil, the immediate outcome of this new moment was the drafting of a new constitutional text with a very extensive bill of individual and social rights, in clear opposition to the dark years of military rule. On the other hand, as was the case in Chile, despite the violent and authoritarian years of dictatorship, the aftermath of the transition to democracy did not spur a movement towards drafting a new text, but a distinct development of simply amending the 1980 Constitution, drafted during Augusto Pinochet's military dictatorship.

Brazil and Chile are two relevant democracies in Latin America, and both endured years of military dictatorship that deeply affected their institutions and social life. They have since achieved a fairly stable process of democratisation, although some inflection points of instability have surfaced.^[626] Still, even though these moments of instability follow a common trajectory in Latin America and despite the current rise in social and political polarisation (especially in Brazil), both countries seem to have spurred a more pragmatic process of accommodation of the structural tensions among the different sectors of society. Moreover, the elites, albeit their long-standing untouchable privileges, have had to negotiate some of their positions in order to face the new challenges of the very process of democratisation. If these circumstances may have led to a sort of ‘democracy by undemocratic means', ^[627] with many ambiguous and questionable policies and bargains in order to achieve this new democratic order, it may also have created some of the structural conditions that could maintain relative stability over time.

Frances Hagopian, when examining the Brazilian transition to democracy, clearly pointed out that if those negotiated agreements could by some means bring about stability,^[628] many political obstacles remained strong after the transi­tion, then leading to the conclusion that those ‘pacts did not broaden and deepen democracy, nor did the politicians who forged them create strong democratic insti­tutions and resolve to adhere to democratic political practice’. ^[629] However, despite the most recent events leading to a presidential impeachment and the rise of a President who reflects much of a still-strong authoritarian mindset in Brazilian society, Brazil has, since the transition to democracy, ‘made significant strides toward nascent pluralism',^[630] which has played an important role in enhancing the mechanisms of democracy.^[631] Chile, by the same token, can be portrayed as one of the Latin American countries whose political institutions are ‘the least conducive to effective democracy’^[632] Yet, paradoxically, it can also be recognised ‘as among the most successful in Latin America, and in regional perspective the country has one of the best records of democratic governability’.^[633]

In this regard, whereas both countries can be categorised in a distinct clas­sification from those ‘post-liberal constitutionalisms'^[634] and have many aspects in common, their transitions to democracy were nonetheless marked by distinct forms of ‘founding moments’ In Brazil, the transition to democracy immediately meant a new constitutional moment and a new constitution, with an opening to civil society^[635] during the deliberative proceedings.

The underlying question of the constitutional movements of both countries is how the drafting of a new constitution after the transition to democracy impacts the founding of a democratic moment. A new constitution or the simple accom­modation of the old constitution to the new era may play distinct roles during that very moment. Evidently, constitutional transitions are complex phenomena, and constitutional text does not mean constitutionalism. Still, it is intriguing to observe that countries with some similar patterns followed such contrasting avenues. This chapter will therefore explore these two constitutional realities and transitions in order to discuss whether and how the timing of drafting a new constitution may affect the very concept of ‘founding moments’.

For this purpose, the chapter begins by discussing some aspects of Brazilian (section II) and Chilean (section III) constitutional realities and stressing how different the aftermaths of their transitions to democracy were, at least in relation to their constitutions. The chapter concludes (section IV) by connecting both constitutional realities to the concept of founding moments, arguing that for such a complex phenomenon of democratic transitions, a new constitution may indeed be relevant for a new beginning, at least at a symbolic level. However, this conclusion does not mean that a new constitutional text alone is able to enhance democracy, but simply that the founding moment, ‘the act as archive as well as the act as performance',^[641] must maintain the link with the legitimacy of the new moment or, as Derrida calls it, ‘must maintain within itself the signature’. ^[642] In other words, although the constitutional text is only the tip of the iceberg of constitutionalism, the constitutional text may matter as a legitimating sign of a new founding moment.

II.