After a long and painful armed conflict, the Colombian State signed a Peace Agreement with the oldest guerrilla in the continent. This historic step required incorporation into the Constitution of those aspects that make the compliance of the agreement feasible and of others that seek to endow it with permanence and prevalence.
In 2017, thirty-one transitory articles were incorporated into the Constitution, as well as four transitory paragraphs, and four ordinary provisions were modified. Elements were added to guarantee the rights of the victims of the conflict and to provide stability to the essential elements of the agreement, suggesting the existence of a Constitution for the transition.
The purpose of this document is to account for the legal elements that support the constitutional proposal for the transition and to determine those elements that, supposedly transitory, will permanently influence the legal system.
In 1967, Ronald Dworkin proposed a distinction between principle and policy arguments. Policy arguments refer to general objectives related to the welfare or well-being of the community. Reasons of principle, in contrast, refer to requirements of justice, fairness or another dimension of political morality. The Constitutional Court of Colombia has recently made decisions founded mainly on reasons of policy. In 2018 the Court restricted the scope of a prohibition on employers to dismiss pregnant women, on the premise that this prohibition is counterproductive to women’s participation in the labor market. In another case, the Court held it was unreasonable to adopt an order protecting the right to education of rural students who took four hours to get to their school. Using these cases as examples, I propose a typology of policy reasons and discuss the conditions under which this kind of reasons may be legitimate or illegitimate in a judicial decision.
(i) The explanation of the components of integral reparation, according to UN Resolution AG60-147 (restitution, compensation, rehabilitation, satisfaction and non-repetition); (ii) its application in the field of international human rights law; and (iii) its uses in the jurisprudence of the Council of State, cases of direct reparation, and its potential in other areas of law, within the framework of the constitutionalization process.
With the entry into force of the 1991 Constitution in Colombia, the traditional system of sources of law changed, not only in the prevalence of the constitutional text and the judicial control of constitutionality, but also in the preponderant role of the jurisprudence of the Constitutional Court in determination the new fundamental rights, minimum essential content and the limits to the exercise thereof.
This is the impact of constitutionalism on the theory of fundamental rights that has become more evident when judicial decisions are about social and economic rights, for example: health, education and environment healthy.
This paper seeks to explore this relationship between constitutionalism and the theory of fundamental rights, as well as the analysis of the variations in the concept and the foundation of economic and social rights.
The absence of materialization of popular sovereignty is not an exclusive issue of contemporary constitutionalism, but has been present in the historical becoming of constitutional law; in its early, ancient and medieval manifestations, and in each of the phase of constitutionalism.
While in the ancient, medieval constitutions and in some stages of constitutionalism,
no express reference is made to popular sovereignty, it is estimated that the elements that determine it concur in these constitutional events under the dual vocation of resist and participate, proper to constitutional law, which is tried to accredit through a strategy of historical and deductive analysis.
Finally, the need will be raised for universities, in consideration of their teleological nature, to contribute, through processes of popular literacy in constitutional culture, to the real and effective realization of popular sovereignty.
It is well established that the separation of powers is an essential structuring principle of the contemporary states, yet the importance of collaboration between powers has received significantly less attention in the literature. Whereas the separation of powers is necessary to limit the abuse of power, collaboration between powers is equally important because this increases the efficiency of the state. As such, separation of powers is a necessary but not sufficient condition for branches of contemporary states to achieve collective and democratic action. Indeed, collaboration of powers is a principle that is present in the constitutions of all contemporary states, whether explicitly stated or not. Intuitively, separation and collaboration are in conflict, but my article argues that constitutions can concurrently serve as instruments that limit, constrain and control political power and that coordinate and empower collective and democratic action.