Constitutionalism: Old Dilemmas, New Insights

by Alejandro Linares Cantillo (Editor)

Overview

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.

Product Details

ISBN-13:	9780192650511
Publisher:	OUP Oxford
Publication date:	03/11/2021
Sold by:	Barnes & Noble
Format:	eBook
Pages:	496
File size:	2 MB

About the Author

Alejandro Linares Cantillo is Associate justice of the Colombian Constitutional Court. He has an LL.B. from the Universidad de Los Andes in Bogota, holds an LL.M degree from Harvard University, and is a PhD in Law from the Universidad Externado de Colombia. Justice Linares has practiced law for more than 30 years in both the public and private sector. Additionally, he has also taught at several universities in Colombia for example the Universidad de Los Andes, Universidad del Rosario, and Universidad del Norte. Camilo Valdivieso-León is a law clerk at the Chamber of Justice Alejandro Linares-Cantillo (Colombian Constitutional Court). He was assistant professor of international investment law (Spring, 2017) and private international law (Fall, 2019) at the Universidad de Los Andes (Colombia). He holds an LLB from the Universidad de Los Andes (Colombia, 2015); and specialization degree in public management and administrative institutions from the Universidad de Los Andes (Colombia, 2018). Santiago García-Jaramillo is a law clerk at the Chamber of Justice Alejandro Linares-Cantillo (Colombian Constitutional Court); Professor of Constitutional Law at Pontificia Universidad Javeriana (Colombia); visiting research scholar at Cornell University (Spring, 2018 and 2019). He has an LLB from Pontificia Universidad Javeriana (Colombia, 2013); and a specialization degree in public law from the Universidad Externado de Colombia (2016).

Table of Contents

I. INTRODUCTIONII. THE ROLE OF CONSTITUTIONAL COURTS IN MODERN DEMOCRACIESHercules at the Crossroads1.. Constitutionalism, Liberalism, and Democracy, Andrei Marmor2.. The Misconceived Quest for the Elusive Right Answer, or Dedication to a Process, Not a Result, Wilfrid Waluchow3.. Dialogic constitutionalism in defective democracies, Roberto Gargarella4.. 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-SarriaIII. NEW INSIGHTSA) We the People or We the Judges: The Judicial Enforcement of Unconstitutional Constitutional Amendments5.. Courts as Guarantors of Democracy, Samuel Issacharoff6.. The Machinery of International Law and Democratic Backsliding: The Problem of Term Limit, Tom Ginsburg7.. The Straw that Broke the Constitution's Back? Qualitative Quantity in Judicial Review of Constitutional Amendments, Yaniv Roznai8.. Between the Explicit and Implicit Limits? An Analysis of Judicial Review of the Constitutional Amendment Doctrine in Colombia, Andrea CeleminB) A Struggle for Equality or Judges as policy makers: The Judicial Enforcement of Socio-Economic Rights9.. Constitutional Rights Without the Notion of Optimization: Limiting Judicial Activism in the Realm of Social and Economic Rights, Axel Tschentscher10.. To Interfere or Not to Interfere? The Court's Dilemma in Social Rights' Enforcement, Octavio Luis Motta-Ferraz11.. How can Rights Be Individuated?, David Bilchitz12.. The Colombian Model of Structural Socioeconomic Rights Remedies: Lessons from and for Comparative Experience, David LandauC) Courts as Mediators or Courts Setting the Ultimate Standard of Fairness: Transitional Justice13.. The Resilient Constitution, David Dyzenhaus & Alma Diamond14.. Judging the Justice of the Colombian Final Agreement, Colleen Murphy15.. 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-Murcia16.. Righting Wrong or Wronging Rights? An Ethical Perspective on the Colombian Integrated System for Transitional Justice, Diana Acosta-NavasIV. THE ROLE OF INTERNATIONAL, COMPARATIVE AND FOREIGN LAW IN DOMESTIC CONSTITUTIONAL LAW: DIALOGUE AMONG THE GLOBAL SOUTHThe Use of Foreign Precedents, a 'Global South' monologue or a conversation among equals17.. International and Foreign Law in Domestic Constitutional Law: A Comparative Examination of the Practice in United States and Post Conflict Countries, Muna Ndulo18.. The Inter-Institutional Dimension of the Fundamental Rights Revolution: The Colombian-American Implications of the Franco-European Experience, Mitchell Lasser19.. The Changing role and reception of international law in domestic constitutional law: Some Thoughts about Latin America and Europe, Marie-Christine Fuchs20.. Not so Moderate: The Relationship Between the Colombian Legal System and International Law, Carlos Arévalo & Julián Huertas