Constitutionalism: Old Dilemmas, New Insights

Author: Alejandro Linares Cantillo; Camilo Valdivieso-Leon; Santiago Garcia-Jaramillo
Publisher: Oxford University Press
ISBN: 9780192896759
Published In: March 2021
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

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This book is a compilation of twenty essays prepared for the occasion of the XIII Academic Conference of the Constitutional Court of the Republic of Colombia, held in Bogota in January 2019. Gathering some of the most prominent authors in constitutionalism and legal theory, the chapters critically examine classical debates, such as the role of judicial review in a democracy, the enforcement of socio-economic rights, the doctrine of unconstitutional amendments, the use of international and foreign precedents by national Courts, and the theory of transitional justice. The book opens a dialogue between philosophers and empirical researchers, building bridges between 'Global North' and 'Global South' approaches to constitutionalism. As such, it is an invitation to reengage with the classical debates on constitutionalism whilst also providing fresh insights into the future of this discipline.

I. INTRODUCTION

II. THE ROLE OF CONSTITUTIONAL COURTS IN MODERN DEMOCRACIES

Hercules at the Crossroads

1.:Constitutionalism, Liberalism, and Democracy, Andrei Marmor

2.:The Misconceived Quest for the Elusive Right Answer, or Dedication to a Process, Not a Result, Wilfrid Waluchow

3.:Dialogic constitutionalism in defective democracies, Roberto Gargarella

4.:From the Public Action of Unconstitutionality of 1910 to the Constitutional Court of 1991: The political and legal struggles for Constitutional Justice in Colombia, Mario Cajas-Sarria

III. NEW INSIGHTS

A) We the People or We the Judges: The Judicial Enforcement of Unconstitutional Constitutional Amendments

5.:Courts as Guarantors of Democracy, Samuel Issacharoff

6.:The Machinery of International Law and Democratic Backsliding: The Problem of Term Limit, Tom Ginsburg

7.:The Straw that Broke the Constitution's Back? Qualitative Quantity in Judicial Review of Constitutional Amendments, Yaniv Roznai

8.:Between the Explicit and Implicit Limits? An Analysis of Judicial Review of the Constitutional Amendment Doctrine in Colombia, Andrea Celemin

B) A Struggle for Equality or Judges as policy makers: The Judicial Enforcement of Socio-Economic Rights

9.:Constitutional Rights Without the Notion of Optimization: Limiting Judicial Activism in the Realm of Social and Economic Rights, Axel Tschentscher

10.:To Interfere or Not to Interfere? The Court's Dilemma in Social Rights' Enforcement, Octavio Luis Motta-Ferraz

11.:How can Rights Be Individuated?, David Bilchitz

12.:The Colombian Model of Structural Socioeconomic Rights Remedies: Lessons from and for Comparative Experience, David Landau

C) Courts as Mediators or Courts Setting the Ultimate Standard of Fairness: Transitional Justice

13.:The Resilient Constitution, David Dyzenhaus & Alma Diamond

14.:Judging the Justice of the Colombian Final Agreement, Colleen Murphy

15.:The transitional justice model in Colombia vis-à-vis the Inter-American Human Rights System: Amidst the conventionality control and the national margin of appreciation, Juana I. Acosta-López & Cindy Vanessa Espitia-Murcia

16.:Righting Wrong or Wronging Rights? An Ethical Perspective on the Colombian Integrated System for Transitional Justice, Diana Acosta-Navas

IV. THE ROLE OF INTERNATIONAL, COMPARATIVE AND FOREIGN LAW IN DOMESTIC CONSTITUTIONAL LAW: DIALOGUE AMONG THE GLOBAL SOUTH

The Use of Foreign Precedents, a 'Global South' monologue or a conversation among equals

17.:International and Foreign Law in Domestic Constitutional Law: A Comparative Examination of the Practice in United States and Post Conflict Countries, Muna Ndulo

18.:The Inter-Institutional Dimension of the Fundamental Rights Revolution: The Colombian-American Implications of the Franco-European Experience, Mitchell Lasser

19.:The Changing role and reception of international law in domestic constitutional law: Some Thoughts about Latin America and Europe, Marie-Christine Fuchs

20.:Not so Moderate: The Relationship Between the Colombian Legal System and International Law, Carlos Arévalo & Julián Huertas