Democratic and Judicial Virtues

One of the reasons to prefer a democratic regime over other forms of government is that it enables citizens to develop political and civic virtues by engaging constantly on public debate and collective deliberation. Strong judicial activism may impair the development of those virtues. Even if judges are fair and their arguments sound, by taking away significant decisions from democratic procedures they may disrupt the development of a virtuous character of political actors. Just as democracy is concerned with the excellence of the character of those that interact within the political sphere, judicial procedures are also a scenery in which judges are able to develop virtues which are admirable such as impartiality, awareness against implicit bias and prejudices, among others. In the following paper I claim that there needs to be a harmonization between the virtues of democratic citizenship and judicial decision making. Both aretaic dimensions are interrelated and should aim to be mutually reinforcing. There is a false dichotomy which this approach can solve. It seems like courts deciding on constitutional matters should exhort parliaments to legislate or get involved directly on structural reforms to protect rights and direct public policies to socially valuable goals. According to the virtue ethic approach presented here, judicial decisions should aim at developing the political virtues required for public deliberation and democratic procedures to address the structural reforms that should be undertaken. A big failure to honour this standard can be found in a judicial review strategy implemented by the Colombian Constitutional Court which is a test to assert that the parliament does not have competence to legislate on the axiological core of the constitution.  This strategy has been used to declare null constitutional reforms of important public issues such as the judicial system reform, transitional justice, among others. This has been harmful to the democratic debate and triggers distrust and lack of empowerment of political movements that feel that the structural public reforms on these matters no longer fall within the reach of public deliberation. I aim to conclude that it is the lack of prudence as a judicial virtue what is generating these misuses of this argumentative strategy.