I. Introduction

Undoubtedly, one of the main pillars of Mexican authoritarianism was its medium-intensity control over democratic participation processes. The best example of this is that although elections were held regularly, votes were highly concentrated. Therefore, the Mexican electoral system was seen as belonging to the hegemonic party.

The shift towards democracy has undergone changes in various institutions one of them being political rights. This note argues that the structural transformations that both political power and the State have undergone have conceptually modified the normative meaning of political rights. This path was marked by the change in the conceptual paradigm: from prerogatives to rights and then to the recognition of a new form of assimilation through international human rights law.

The last of these great transformations is represented by the Ius Consttutionale project for Latin America, which intrinsically implies two things: 1) belonging to multiple normative spaces and 2) the centrality of the human person.

II. The Transformation of the State: When the Power is Rational

By abandoning the organic idea of the ancient world, academic thought began to present the modern State as an artifact; that is, as an artificial work, not as a spontaneous product of human nature, but rather as a rational creation resulting from the voluntary decision to live in society. In other words, it means to leave the State of a pre-contractual nature.¹

Based on this premise and on contemporary doctrine, the basic models that summarize the explanations about the modern State can be alternatively condensed as: 1) the approach to the rationalization of the juridical-political institutions -which is saying, the system of Law and the State itself; 2) the value given to the unity imposed by the modern political organization -associated with sovereignty and the consequent rise above medieval pluralism; and 3) finally the balance of powers -whose version is not the mechanistic roots of modern thought are hidden.² Naturally, the identification and separation of these models³ is only possible in theory as the primacy or exclusivity of any of them can be verified in scholarly works, but very rarely in the facts themselves.

The decades of transition between the nineteenth and twentieth centuries, concerned about the crisis of the liberal State, brought about a myriad of problems related to a wide variety of aspects, one of which was the issues derived from the constitutionalization of parties and unions.⁴ It was feared that this constitutionalization might conceal a form of regression towards estates; that is, an element contrary to political unity, which had become a fundamental feature of modern State organization. Moreover, controversies came about by increased bureaucracy towards another of the bastions of modernity, namely, the balance between authority and individuals.⁵ Hence, the balance was presumably compromised and damaged because of unsuspected growth. Furthermore, there was the theoretical concern of narrowing the gap between the public and the private spheres, also reputed as modern, because of the activity of public administration in terms of dealing with individuals through the figure of the contract.⁶

Because of this historical scenario, the models of the past century traditionally handed down over the years, have been shaped in a problematic climate. They are not exempt from answers, and follow the desire to point at safe paths of political modernization based on prescriptive content. This is to offer criteria that allow to identify everything that could move contemporary society away from the paradigms of modernity, and simultaneously serve as guidelines for action.

Nowadays, the prescriptivism orientation of the models still exists, although it no longer possesses the strength it had at the beginning of the 20th century. This tendency is reflected in the attitude of case law to consider the current conceptual reality during a period of crisis, precisely because of the lack of coincidence between facts and theoretical models. The previous or older paradigm, as Claus Offe describes it, has remained valid and effective until the crisis of the seventies. While the agents or “Subjects of the ‘old paradigm’ were practically the only institutions (juridical-political), government, parliament, parties -although after them they operated economic corporations and unions more or less integrated organizationally in the system-; the ‘actors’ of the ‘new paradigm’ were fundamentally, in their strictest formulations, the new social movements.”⁷

However, rather than talking about the crisis of the State institutions themselves, the prevailing perspective gravitates towards the intelligence of the crisis of the model. In other words, it does not seem plausible, for example, to deny the activity of governing bodies all rationality because it does not adapt to the formal elements defining the modern bureaucratic State as pointed out by Weber. Nor it is reasonable to affirm the dissolution of the modern political organization based on broad European pluralist structures, without relating it to the model that focuses its explanation of modernity on the annihilation of the particularisms in medieval society.

This crisis of theoretical models justifies the demand for their review. Consequently, it is only possible to postulate the extinction of the thought state and not of the lived reality. In the words of a contemporary scholar, the State that is dissipating is the imaginary one, and not the one that emerged at the end of the Middle Ages. This model explains the transformation of the paradigmatic.⁸ This thesis is based on the inadequacy of interpretive schemes to explain the contemporary legal-political reality, both on the functional level of a dynamic civil society and State, and the structural definition of institutions.

The affirmation that actual historical content coincides with its theoretical systems constitutes the very essence of historiography. As a methodology applicable to legal concepts, it leads science to rethink, in both the public and private spheres, the conceptual paradigms that have been used to interpret and explain matters inherent to them, verifiable data on dogmatic abstraction being preferred today, characterizing this time precisely because of their rejection of excessively ambitious rationalisms, whose limits have already been sufficiently criticized although without incurring in an apology for the irrational, as evidenced by the fact that the notion of a system is still prevalent in more restricted sectors of jurisprudence, of, even with the elementary variants that this epistemological itinerary has supposed.

From the examination of the paradigms that serve as a theoretical explanation of modern political institutions, it may be noted that the crisis of the welfare State does not necessarily lead to the dismissal of all the elements that characterize it, especially because there is a non-identification between the models and the values that the models strive to embody. This disorientation should not be interpreted unfailingly in terms of the exclusive crisis of doctrinal schemes because it is also an issue of “ precisely a crisis of legitimation; that is, of cultural and social values, of the concept of the world’ with a significant internal philosophical debate (analytical, dialectic, postmodern, etc.).”⁹

All this makes it possible to understand the historicity of political institutions. Indeed, the need to understand their transformations in order to correctly appraise their operation and functions is necessary to be in a position to determine the possibilities of studying political-electoral rights under the current system - in particular those referred to as the active and passive vote, traditionally designated ius suffragii and ius honorum. Therefore, the results of this analysis will identify the features of a complex and problematic reality, like that of contemporary State organization in Latin America, whose design has its roots in a deeper and more distant time, although structurally modern, and which presents as the heir of a long tradition that finds its original sources in Roman legal thought.

III. The Integration Project Focused on Human Rights: The Ius Constitutionale Commune for Latin America

Among the various normative designs of the right to vote, in both its active and passive aspects, it is possible to identify contextual characteristics in Latin America that have given rise to a minute analysis from the perspective of legal doctrine. Such characteristics can be framed into two processes that have been developed in different, albeit overlapping, time periods, namely, political transitions, on the one hand, and State reform processes, on the other. This finds its raison d’etre in which the debate on the reform of the State has usually been aimed at guiding the democratic transition or consolidating the democratic political regime that has just been established.¹⁰

The Latin American region - like that of Eastern Europe - has provided sufficient empirical evidence on political changes towards democracy for authors like O’Donell and Schmitter who affirmed that a process of political liberalization, centered on the maximization of political rights and prerogatives, has become a reality. Moreover, according to these authors, it has involved the establishment of a principle of citizenship, which, in turn, has resulted in a transformation of the relations between public power and individuals¹¹ while political freedoms have been presented as the touchstone of the electoral system.

Over time, and entering into the debate on democratic transitions or State reforms, globalization has modified several existing classical conceptions, particularly the notion of sovereignty, and therefore the sources of human rights, among which are the political rights.

A process of global transformation gained momentum in several fields: as occurred in the case of State reform. In addition to having the purpose of modifying political institutions, globalization was intended to introduce changes to the justice system, and to legal systems in general, but it did not stop there; the transformations now included - perhaps incidentally - a differ-ent way of thinking about public law.¹²

When describing this phenomenon from a legal perspective, it can be affirmed that with such processes, the classic elements of the State (government, population, laws, territory) do not disappear. The concept of these elements are profiled differently because of a new demand for sharing the responsibilities of security and democratic self-determination, and by creating a kind of interpretive pluralism with weak hierarchical positions, parallel to the exercise of authority.¹³ For this reason it has been pointed out that there are currently ‘constitutional sites’ in the various legal systems that are immersed in processes of public authority because of their essence.¹⁴

In other words, gradual adherence to human rights regimes has implied a process of constitutionalization in the region, which is certainly not centered on the concept of national sovereignty -in its various meanings,¹⁵ but more properly on the basic notion of constitutionalism as a political idea. More-over, it functions as the guiding axis of the various forms of government; that is, the constitution as a guarantee of rights, reaching beyond the various forms and specificities that shape such historical documents.

Thus, in an attempt to describe and explain these diverse processes, doctrine has spoken of regional constitutionalism, inter-American constitutionalism, acquis conventionnel and ius constitutionale commune¹⁶ to refer to a nucleus or core that can be considered constitutional, given its protective vocation derived from human rights. The inter-American ius constitutionale also bears the imprint of regional jurisdiction based on the Pact of San José, which offers another aspect for the composition of its object: dialogue among judges who have compiled the case law they have issued.¹⁷

From the point of view of Von Bogdandy,¹⁸ the ius constitutionale constitutes a political, legal and cultural project that, due to its inquisitive and challenging nature, poses great challenges to the science of public law. In this context, Serna proposes a definition of the research agenda that legal science now faces: it is a cross-cutting agenda that uses different approaches, methods, and even branches of legal knowledge, and proposes questions to the general theory of law, the field of comparative law, constitutional theory and, particularly, the history of law.

While comparative law requires the contribution and definition of concepts related to the so-called coexistence clauses of various legal regimes, like those used in federal systems, the theory of law calls for concepts that do not correlate the different rules of a system hierarchically.

On this point, it should be recalled that, in perfect coherence with Kantian theses, it was Kelsen who mainly developed the most elaborate and complete concept of positive legal system. According to Kelsen’s thesis, the law is an order that constitutes a system insofar as the validity of any norm can refer to a single source as its ultimate foundation.¹⁹ This original source establishes harmony among the plurality of provisions. In other words, law is systematic, not by logical relationship between norms, but by the delegation of its validity. In this way, the relationship between norms are not external, but link their validity with each other since the foundation of a legal proposal is the norm or norms that regulate its or their creation.

In this sense, any rule can prove, or not, its validity to the extent that it was created in accordance with certain directives established by a first authority. Now, it is necessary to establish the hypothesis of a statement declaring that the normative creation of that first legislator is valid: the rule that formulates the hypothesis of validity of these first acts is the founding norm of any positive law.

Therefore, we can speak of ‘authority’ because the relation/ of the validity of the provisions is equivalent to the power granted to produce them, based on the legislative branch and its legislative faculties. In other words, if there is a hierarchical order between norms, it is because a social organization with an unequal distribution of power is assumed. Therefore, the relation-ship between norms is not purely logical but expresses a structural relationship between the bodies empowered to create them. In this way, the system can be traced back to its last source.

On the other hand, the validity of legislative acts rests on a foundational norm of a gnoseological nature. In fact, it is a theoretical supposition, an a priori determination of scientific knowledge, of a principle. Then, the hypothetical norm is not a true norm, but a criterion for delimiting a positive legal order. It is the basic thesis of attribution of validity to the acts of the first legislator. Thus, the hypothetical norm of a positive law is an assertion of the science of law; that is, a theoretical assumption of knowledge and is obviously not a historical norm.

In synthesis, according to the Kelsenian school of thought, a system constitutes an interdependence of elements, an ideal set of factors in which the value of each element is not understood alone, but in function of the counter-value of the others: Law as order - the legal order - is a system of legal norms. A plurality of norms constitutes a unit, a system, an order. Its validity can refer to a single norm as the foundation of this validity. This fundamental norm constitutes, as a last source, cohesion of the plurality of all the laws that constitute an order. And if a provision belongs to a certain order, it is because its validity can be found in its fundamental norm.²⁰

However, this concept is insufficient to explain the work of the contemporary legal operator, whose activity is no longer limited to a formal and axiomatic analysis of the rules, but, on the contrary, preponderantly covers all issues of content, semantics and meanings of the normative propositions to interpret them as best as possible; that is, according to the basic tenets of order. “Beyond logical discourse, whose meaning and scope may still, perhaps, remain in the field of natural and formal sciences, announces and shapes the broadest knowledge, that is understanding, the proper understanding of interpretation... Hence the new hermeneutics, as one of the most original and beneficial elements of contemporary German thought.”²¹

Hence, this new vision of public law posits the use of categories of constitutional theory that harmonize the incorporation of international legal regimes. Finally, the history of law uses past experiences of the subsistence of various normative systems in the same geographical area.

On this last point, Serna²² specifically mentions the case of the coexistence of the so-called ius proprium and the ius commune on the Europe of the Late Middle Ages, although he omits a fundamental difference in new international law, this is the volitional element, as well as forgetting to refer to the original scheme, taken from the Romanist tradition by the commentators:²³

Omnes populi, qui legibus et moribus reguntur, partim suo proprio, partim communi omnium hominum iure utuntur. nam quod quisque populus ipse sibi ius constituit, id ipsius proprium civitatis est vocaturque ius civile, quasi ius proprium ipsius civitatis: quod vero naturalis ratio inter omnes homines constituit, id apud omnes peraeque custoditur vocaturque ius gentium, quasi quo iure omnes gentes utuntur.²⁴

Having established the theoretical debate in which these lines are inscribed, it is necessary to elaborate on it with further methodological precision. The specific references made in Mexico’s case are due to the country’s distinctive characteristics. Mexico, unlike other States in the region, has not experienced any military dictatorship. Even within its authoritarianism, elections were held periodically through electoral institutions and political rights were malfunctioning, which was combined with a full reform on human rights issues somewhat late for the subcontinent, the view of what will be expressed in the following pages.²⁵

In this context, the analysis will focus on the right to vote, both actively and passively, in regional -inter-American- and national orders. Thereafter, it will be discussed from a theoretical perspective and the conception and functions of political rights in general from a normative perspective -from the prism of positive Mexican law-, to subsequently discuss the right to vote.

IV. Political Rights

V. A Tentative Conclusion: Belonging to Multiple Normative Spaces and the Person’s Centrality

What has been said up to this point raises an interesting panorama. In the ius constitutionale commune space, the existence of different normative orders within national States makes their relationship with regional human rights law more complex, but the essence of the purpose remains intact: the protection of the individual.

In its first and ninth articles, the Inter-American Democratic Charter prescribes that the ‘peoples’ of America have a duty to promote democracy, while respecting cultural plurality at all times. This shows that the dominant concept in the application of the ius constitutionale commune is that of the maximum protection of the person.

Thus, in the inter-American human rights system, dignity mainly plays the role of limiting any interference, effect, restriction or damage to personal integrity, privacy and freedom. Therefore, there is a set of prohibitions - in matters of slavery or servitude; torture; cruel, inhuman and degrading treatment; as well as arbitrary or abusive interference with private life, family, home or correspondence - which the system expressly protects.⁴¹

The founding documents of the ius commune constitutionale inter-American states that: “All men are born free and equal, in dignity and in rights, and, being endowed by nature with reason and conscience, they should conduct themselves as brothers one to another. [...] Inasmuch as spiritual development is the supreme end of human existence and the highest expression thereof, it is the duty of man to serve that end with all his strength and resources.”⁴²

The legal expression of these ideas in the application of normative materials is found in the interpretative clauses, such as the pro persona principle, according to which the protection of inter-American human rights norms is not restricted to this express focus on human dignity. The pro persona clause in the inter-American system is expressed in the form of prohibitions, which can be classified into two groups.

First, an interpretation cannot limit or suppress any right contained in the convention itself or in State legal systems that is not valid.

Second, it is not possible to interpret a limitation or exclusion in the rights that: a) are inherent to a human being; b) derive from a democratic and representative form of government; c) come from “other international acts”, or d) correspond to the effects of the American Declaration of the Rights and Duties of Man.

To preserve dignity, it is necessary to make an extensive interpretation of the applicable corpus, as well as the norms themselves, whether rules or principles, to be applied and incorporated into all the liberties embodied in the human rights system. Because of this, it is necessary to indicate how the pro persona clause in the American Convention is comprised.

Regarding the first point, in Advisory Opinion 1/82, the Peruvian State asked the Inter-American Court about the scope of the phrase “or of other treaties concerning the protection of human rights in the American states,” contained in Article 64 of the Pact of San Jose. The Court considered that the phrase composed of the expression “other treaties” referred to any treaty in which one of the signatories was also a party to the American Convention.⁴³ In this way, the corpus applicable to a person is extended in that, in the case of human rights norms, such treaties are a source of rights protected by the Inter-American Court.

With regard to the second point, perhaps the most relevant criterion is found in Advisory Opinion 5/85, since it broadens the meaning of the provisions of article 29 of the Pact of San Jose, since, as has been pointed out, it conceives the pro persona principle as a rule that comprises a series of prohibitions on any interpretation that leads to the limitation or restriction of rights. However, in this case, the Court overruled the text of the rule, extending its meaning and establishing that the pro persona interpretation implies that:

[...] if in the same situation both the American Convention and another international treaty are applicable, the rule most favorable to the individual must prevail. Considering that the Convention itself establishes that its provisions should not have a restrictive effect on the enjoyment of rights guaranteed in other international instruments, it makes even less sense to invoke restrictions contained in those other international instruments, but which are not found in the Convention, to limit the exercise of the rights and freedoms that the latter recognizes.⁴⁴

In this way, yet another aspect of the interpretation clause in question becomes valid: that of selecting the most favorable provision and not simply that regarding the prohibition of restrictive interpretations.

In view of the above, ius commune can also be understood as a political and legal project that is legitimized through the concept of inclusion, which conveys another echo of Roman thought and culture, bearing in mind the legal sources in which Rome is referred to as the common homeland.⁴⁵

If one of the abovementioned implications is the achievement of equitable national societies, the ius commune is presented as the ideal instrument to accomplish this project, setting aside the formal consideration that corresponds to the preservation of the hierarchy of a normative system, according to the terms of Kelsenian thought as explained above, or of Weber’s theses in which objective rationality and the modern State are compatible, and in whose context “[j]uridical formalism enables the legal system to operate like a technically rational machine. Thus it guarantees to individuals and groups within the system a relative maximum of freedom, and greatly increases for them the possibility of predicting the legal consequences of their actions.”⁴⁶

A ‘technically rational machine’ with ample space for ‘predicting the legal consequences’; that is, the relinquishment of casuistic, episodic, arbitrary systems through the institutionalization of legal-rational procedures. In fact, for Weber and those who follow his doctrine, the historical process of modernization is equivalent to the rationalization and institutionalization of power, which happens when power systems/structures that are unable to act in a continuous, regulated and objective manner are overcome/ended. In modernity, we can affirm the existence of a public subject, the State, which has seized all the material means suitable for achieving its ends. This reflects the real transformation that has taken place on a historical level because it is not mainly due to the replacement of various political subjects for the reality, but more so due to the advent of an especially qualified subject; that is, through an institutionalized act.

In Grossi’s words, “the State is a notion that possesses a specific historical niche [...] the time territory that corresponds to this subject is undoubtedly the modern one, which represents perhaps the most striking and undoubtedly also the most expressive outcome.”⁴⁷ Naturally, the incorporation of the material into its sphere of power is the result and a factor of the appropriation of the administrative activity of individual behaviors and economic goods, canceling out the previous associative-subjective context, and placing the institutional dimension and bypassing the centrality of the person as its central axis.

By taking a certain distance from the enshrined explanations of the doctrine on the modern State, inter-American law draws on concepts that justify the adherence to regional human rights regimes, namely supra-Statehood, multilateralism, voluntariness, collective hegemony, not only in terms of legitimacy, but also of practical convenience.⁴⁸

In other words, in this new model, many of the concepts of modernity regarding State monopoly of the public power are overcome, and instead turns to a longstanding tradition of the Roman matrix system by reshaping the need for multilevel cooperation within the context of the centrality of the human person as its cardinal element and center of its entire classical legal thought.⁴⁹