A necessary exorcism: commentary on law as a conversation between equals.

Abstract

This paper reflects on the book Law as a conversation between equals by Roberto Gargarella. The importance of it to think about the crisis of representation of the modern state is analyzed, highlighting his critics as key contributions to American cons- titutionalism. Within this framework, it is proposed to reflect on some institutional arrangements of Argentine constitutionalism that could be re-thought from the critical perspective of the author and then, in context, point out the “blind spot” of that perspective. The argument refers to the need to account for the system of citizen castes (sex-generic and racialized) sanctioned by constitutionalism, as a missing part of the counter-majority criticism that Gargarella postulates. This is the blind spot that needs to be illuminated in order to substantively distance the Gargarellian proposal from a majoritarian elitism. With the same spirit of complement, towards the end an attempt is made to bring closer the apparent distance between the ideas of Gargarella and the theory of rights and guarantees of Luigi Ferrajoli.