Instituciones Políticas y Función Judicial en Derecho Constitucional Comparado (Political Institutions and Judicial Role in Comparative Constitutional Law)

The English version of this paper can be found at http://ssrn.com/abstract=1774915. Comparative constitutional law scholarship has not realized that differences in the configuration of political institutions should bear upon the way courts do their jobs. This paper develops a comparative theory of judicial role that focuses on broad differences in political context, and particularly in party systems, across countries. I use a case study of the Colombian Constitutional Court (supplemented by briefer studies of the Hungarian and South African Constitutional Courts) to demonstrate how differences in political institutions should impact judicial role. Because Colombian parties are unstable and poorly tied to civil society, the Colombian Congress has difficulty initiating policy, monitoring the enforcement of policy, and checking presidential power. The Court has responded by taking many of these functions into its own hands. I argue that the Court’s actions are sensible given Colombia’s institutional context, even though existing theories of judicial role would find this kind of legislative-substitution inappropriate. Existing theory’s focus on the anti-democratic nature of judicial action assumes a robust constitutional culture outside the courts and a legislature which does a decent job representing popular will – both assumptions tend to be false in newer democracies. Thus, comparative public law scholars must be attentive to political context in order to build tools suitable for evaluating the work of courts around the world