Beyond Judicial Independence: The Construction of Judicial Power in Colombia
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CitationLandau, David Evan. 2015. Beyond Judicial Independence: The Construction of Judicial Power in Colombia. Doctoral dissertation, Harvard University, Graduate School of Arts & Sciences.
AbstractThis dissertation seeks to explain the behavior of one of the most activist high courts in the world, the Colombian Constitutional Court, since its creation in 1991. The standard approach within the field emphasizes political competition or fragmentation as an explanation for judicial independence. This literature tells a standard story about (1) the origins of independent constitutional courts, (2) the durability of those courts, and (3) their behavior. None of those stories accurately explain the Colombian case. Study of the antecedents of the Constitutional Court shows that the Court was not a case of “independence by design.” Instead, designers hoped to create a body that would be closer to the prevailing political regime than the existing Supreme Court. Judicial power in Colombia was built up over very long periods of time, and was based on judicial usefulness to prevailing political regimes, rather than its distance from those regimes. Further, the Court has constructed doctrinal tools to allow it to intervene across a wide range of areas and has used judicial decisions to cultivate the support of academics, civil society, and the middle class. It is the support of these groups, rather than political fragmentation, which has been decisive in shaping the Court and in protecting it from court-curbing and court-packing efforts. The ultimate test of the Court’s power was the aggressive attacks of the Uribe administration: the Court used its alliances to survive the threat posed by a popular and powerful president, and eventually managed to confront this administration by blocking a constitutional amendment that would likely have given President Uribe an unprecedented third term in office. In Colombia and beyond, focusing on the ways in which judiciaries are embedded into historical regime dynamics, and on the choices made by justices to carve out their own political space, can help to provide richer explanations for judicial behavior and more nuanced assessments of the effects of judicial activism.
Citable link to this pagehttp://nrs.harvard.edu/urn-3:HUL.InstRepos:14226088
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