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.

Coordination under the Constitutional Court interpretation

The coordination decisions taken by the State and the regions to harmonize procedures at local government’s levels should be adopted by a competent public authority in a supramunicipal tier considering the local authority that is being coordinated. Several actions have been adopted by the legislative system to enhance coordination measures and its procedures. Nonetheless, the Colombian response to the COVID-19 pandemic has brought to light many discussions concerning the decentralized model of government adopted in the country’s 1991 Constitution, specially, the coordination system. The judicial review of the decision-making process of this coordination system reveals aspects to take into consideration concerning the role and legitimacy of courts in this topic.

Enforcing social rights through experimentalism. Lessons from structural litigation in Argentina

Latin American constitutions recognize several social rights (SR). But the gap between SR’s declaration and implementation is significant. People resorted to courts to seek remedies for unfulfilled SR, often targeting structural problems. While courts were receptive to such claims, the enforcement of complex decisions faces challenges that remain under-explored. The paper claims that a way to navigate enforcement hurdles is to craft “experimentalist” remedies and monitoring mechanisms. As experimentalism promotes participation, decentralization and experience-based learning, it can help contextualize SR and address judges’ limitations to engage in policy issues. The paper presents a detailed research of a landmark environmental litigation in Argentina directed at cleaning a massive river basin. Because of contamination, people living in slums in riverbanks had to be relocated. Relocations triggered promising experimentalist innovations in case-management and policymaking.

Weber by other means? The judicial construction of Latin American civil services

In the last decade, higher courts in Latin America have increasingly made use of both rights-based and impact litigation to engage in structural reforms of civil services. In doing so, the courts have begun to confront patronage practices and spoil systems in a way that second-generation reforms failed to do. This paper examines some aspects of this ongoing struggle for civil service reform. In pursuing this inquiry, the paper makes three normative claims. First, in implementing civil service reforms, the dominant political class in each country have exploited legal loopholes and introduced distortions into the system to render it ineffective. Secondly, the myriad cases of judicial activism in civil service litigation have sought to correct the distortions introduced into the system along the lines of the second-generation reforms. Thirdly, the cases in which higher courts have engaged in structural reforms haven’t resulted in improvements to the operations of civil services.