Constitutional Origin and Norm Creation in Colombia Comparative Constitutional Change 1st Edition by Jan Boesten 1000577792 9781000577792

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ISBN-10 :  1000577792 

ISBN-13 :  9781000577792

Author:  Jan Boesten 

Constitutional Origin and Norm Creation in Colombia Comparative Constitutional Change 1st Table of contents:

1. Introduction: Ethical Legal Discourse in Delegative Democracies
Democratic Legality Triumphs over Democratic Security
Legislative Act 02 of 2004: “By which some Articles of the Constitution are Reformed and Other Dispositions are Introduced” (C-1040/05)
Law 1354 of 2009: “By which to Convey a Referendum and Submit a Constitutional Reform to the People” (C-141/10)
The Question of Judicial Power in Colombia
The Peculiar Case of Álvaro Uribe
Contributions: The Primacy of Democratic Legality over Democratic Security and Its Significance for Discursive Institutionalism
Case Selection and Data Collection
Structure of the Analysis
References
Court Cases
2. The Novelty of the 1991 Constitution: A Critical Juncture in Colombia’s History
Introduction
Critical Junctures and the Study of Colombia’s History
Identifying a Base-Line: Violence, Parties, and the Structuration of a Fragile State
Colombian Consociationalism: Military Tutelage, the Exclusion of the Public, and Elite-Driven Institution Building
The Political Origin of the Thousand Days’ War and La Violencia
Political Junctures: Stabilizing Institutions to Contain Violence
Consociationalism and its Discontent: Political Stability at the Cost of Democratic Quality
Pacted Democracy in Colombia: Building Institutions without Public Constraints
The 1991 Constituent Assembly: Students Movements and the Implementation of Public Reason
The Aftermath of the National Front: Hyper-Fragmentation of a Regime in Crisis
The Extra-Institutional Path: The Communicative Action of the Student Movement(s)
The Institutional Path: Breaking the Conservative-Liberal Hegemony
Institutional Novelties of the 1991 Constitution
The 1991 Juncture: The Atomization of the Nation
Conclusion: The 1991 Constitution as a Critical Juncture in Colombia’s History
References
3. The Choque de Trenes between Colombia’s High Courts: Path Dependence and Legal Argumentation
Introduction
Part I: Path Dependence and Colombia’s New Institutions
Courts and the New Constitutional Regime: Selection, Jurisdiction, and the Interdependence of the Branches of Government
The Choque de Trenes and Nuevo Derecho
Via de Hecho: Legal vs. Constitutional Certainty
Part II: The Proceso 8000 and the Inviolability of the Vote in Congress
Political Contentions: Samper’s Ability to Remain in Power
Normative Contentions: Illicit Enrichment and the Inviolability of Parliamentary Votes
Part III: Parapolítica and the Parainstitutionalization of Congress
Political Contentions: The Politics of Parapolítica and the Production of Legal Facts
Normative Contentions: Parapolítica and Legislators’ Constitutional Privileges in the Tutela Contra Sentencias
Part IV: Path Dependence of Legal Argumentation and the Production of Legal Facts during the Proceso 8000 and Parapolítica Scandals
References
Court Cases
4. Discursive Institutionalism in Colombia’s Constitutional Court: The Deliberative Judge and Norm Creation in a Politicized Context
Introduction
Conceptual Implications of the Empowerment of Colombia’s Constitutional Court: Rational Choice versus Deliberative Institutionalism
From Political Misalignments to Prudent Deference: The Implications of the Strategic Judge
A Competing Explanation: Deliberative Constraints and the Ability to Change Your Opinion
Hypotheses: Political Uncertainty and Prudent Strategizing vs. Principled Deliberation
Constitutional Reform, Competing Claims of Citizenship, and Ethical Discourse in the Process of Norm Creation in Colombia’s Constitutional Court
Uribe and the Delegative Turn in Colombian Politics
The Fragmentation and Co-optation of Congress
The Making of the Substitution Doctrine: Neo-Constitutionalism and the Implementation of Ethical Reasoning in the Constitutional Court
La Ley Cuenta: The Institutionalization of Legal Reasoning in Colombia’s Constitutional Court and the Rejection of a Third Consecutive Presidential Term
Conclusion: The Deliberative Judge and the Empowerment of Colombia’s Constitutional Court
References
Court Cases
5. Conclusion: The Pre-eminence of Democratic Legality over Democratic Security and Discursive Institutionalism
The Question
The 1991 Colombian Constitution: Critical Junctures Revisited
Institutional Learning in Judicial Institutions
The Substitution Doctrine and the Deliberative Judge
The Deliberative Judge, Democratic Legality, and Discursive Institutionalism
References
6. Epilogue
The Substitution Doctrine after 2010
Scandals in the Judiciary
From Actors of War to Architects of Peace?
References
Court Cases

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