Keywords
judicial role
comparative public law
Colombian Constitutional Court
legislative-substitution
How to Cite
Abstract
Comparative constitutional law scholarship has largely ignored political
institutions. It has therefore failed to realize that radical differences in the
configuration of political institutions should bear upon the way courts do
their jobs. Parting from a case study of the Colombian Constitutional Court,
this paper develops a theory of judicial role focused on political context, and
particularly on party systems. Colombian parties are unstable and poorly tied
to civil society, therefore Congress has difficulty initiating and monitoring
the enforcement of policy, as well as checking presidential power. For that
reason, the Constitutional Court has responded by taking many of these
functions into its own hands. We argue that the Colombian Court’s actions
are sensible given the country’s institutional context, even though virtually
all existing theories of judicial role in comparative public law would find
this kind of legislative-substitution inappropriate. Those theories rest upon
assumptions about political institutions that do not hold true in many of the
developing countries.
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