Abstract:
Comparative constitutional law scholarship has largely ignored political institutions. It has therefore failed to realize that radical differences in the configuration of political institutions should bear upon the way courts do their jobs. This Article develops a comparative theory of judicial role that focuses on broad differences in political context, and particularly in party systems, across countries. I use the jurisprudence of the Colombian Constitutional Court (supplemented by briefer studies of the Hungarian and South African Constitutional Courts) to demonstrate how differences in political institutions ought to 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 virtually all existing theories of judicial role in American and comparative public law would find this kind of legislative-substitution inappropriate. Existing theories rest upon assumptions about political institutions that do not hold true in much of the developing world. The American 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. The case studies demonstrate that comparative public law scholars must be attentive to political context in order to build tools suitable for evaluating the work of courts outside the United States.