POLITICAL INSTITUTIONS AND JUDICIAL ROLE: AN APPROACH IN CONTEXT, THE CASE OF THE COLOMBIAN CONSTITUTIONAL COURT

Résumé 0

"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."