Comparative Community Law: Latin American Scholarship on Regional Integration and the Peril of Legal Functionalism

Abstract

COMPARATIVE COMMUNITY LAW: LATIN AMERICAN SCHOLARSHIP ON REGIONAL INTEGRATION AND THE PERIL OF LEGAL FUNCTIONALISM Osvaldo Saldiasti INTRODUCTION The governing leaders of several regions worldwide have de- clared the goal of matching the impressive degree of regional in- tegration achieved by the European Community. 2 One such regional integration attempt is the Andean Community (for- merly the Andean Pact), which undertook massive legal reform by incorporating the design of the European polity. Beginning in the 1980s, the Andean Community made use of European Com- munity rules, institutions, and principles. For instance, the An- dean Court of Justice (ACJ) borrowed its structure, competences, and procedures from its European counterpart, the European Court of Justice (ECJ). Even its case law was fertil- ized by the ECJ. This systematic borrowing from Europe led Andean jurists to take pride in their regional integration scheme as being the most advanced in the world. t I am indebted to the support of the German Research Foundation (DFG) and the School of Law of Humboldt University in Berlin. I am also grateful to the American Bar Foundation for the superb research environment that I found in Chicago. 1. Research Fellow Humboldt University in Berlin, Visiting Scholar American Bar Foundation 2. The European Communities were founded by virtue of the Treaty of Rome. The Treaty of Maastricht, signed in 1992, created the European Union. Which en- compasses the European Community (EC), Justice and Home Affaire (JHA), and the Common Foreign & Security Policy (CFSP). I will use the term European Com- munity (EC) to refer to the polity that existed from 1957-1992, since in this period of time, the judicial doctrines relevant to this article were established. 3. For an overview of the legal and institutional reform that transformed the Andean Pact into the Andean Community, see RENATA MARWEGE, Der Andenger- ichtshof. Das Rechtsschutzsystem des Andenpaktes mit vergleichenden Bezigen zum Recht der Europdischen Gemeinschaft. (M. et al. Hilf ed., Duncker & Hum- blot. 1995).