In times of the constitutional State, the burden of making a legal argument is the third element of the adjudication model. The author will review this theoretical proposal following the principled theories that were built in the European postwar context by the German, Italian and Spanish constitutional courts, comparing their jurisprudence with the Colombian Constitutional Court. The Colombian Court is the model for the Latin-American context, as it has received the German theories from the perspective of Alexy, and because in the cases of authentic interpretation of the Constitution, the Court has succeeded to build its own model for the Colombian legal system.
The impartiality idea in judicial matters rests in the deepest of our institutional compressions in relation to the judicial configuration. This notion has served as a justificatory basis to articulate our judicial practices, organization and, in general, for the functionality of the judicature. The following research is based on a critical position, stating that the idea of impartiality is based on an elitist nature, which was assimilated -not discussed- into the foundational periods of our Latin American constitutional system. This has contributed to the construction of a judicial power distanced from the social problems, and a self-understanding of being an actor outside the democratic debate.
In this context, the idea of impartiality needs to be rescued, in order to achieve a judicial power committed to democracy, particularly a deficit democracy like ours. This exercise implies a normative justification of a dialogical authority
Kelsenian model is characterized as a concentred constitucional review model wich is in charge of a special judge with a legal regulated competence.
In contrast, the American model grants higher discretion to the controllers, leaving to judges the self attributed monopoly of the constitutional review and the construction of its rules.
We are attending to an expansion of constitutional courts competitions, and an universalization of constitutional justice, which tends to weak the contradiction between the American and the Kelsenian constitutional review model. This represents a process of mutual hybridization and convergence of the constitutional review models, produced by the transformation of their rules and its historical characteristics.
The jurisprudential transformation of the rules of constitutional review models is an attribution or an excess of the constitutional judges competences?
This article aims to demonstrate the existence of four, and not three, forms of subjectivity or public autonomies. Besides the freedom of configuration, the administrative discretion in a technical and legal sense, and the margin to freely appreciate open-textured legal concepts, the “apreciatividad administrativa” also exists. The paper argues that the theory of the diverse margins of administrative freedom does not correctly account for the existence of all possible administrative behaviors, that is, it does not treat the subjectivity or public administrative autonomy enabled by non-voluntary legal sources, which derives from the content of the Law, the flaws of the legal system and the exercise of the function, normally reporting to non-deontic actions. Therefore, the proposal is to theorize on the “apreciatividad administrativa”.
This article asserts that new-constitutional thought, both in its more sophisticated theory (e.g., Alexy and Dworkin) as in its receptions in Spain, Italy, and Latin America, has been built on the grounds of a fictitious model of the judge. In an analogy to the well-known allegory of the rational legislator written by Carlos Santiago Nino, the article reviews the main attributes of this model: persuasiveness and correctness in reasoning, non-delegated political representation, the capacity to rebuild the legal system consistency, interpretation of the community´s moral sentiments, and impartiality. Such attributes would provide normative sustain to an increasingly active role of constitutional courts in the public sphere. Although fictions are common in political and legal theory, the article sustains that a naïve reception of that theoretical scaffolding can imperil democratic regime and the rule of law.