Global Constitutionalism and Democracy: the Case of Colombia
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Global Constitutionalism and Democracy: the Case of Colombia Chris Thornhill 1
& Carina Rodrigues de Araújo Calabria
2
# The Author(s) 2020
Abstract
Focusing on the case of Colombia, this article sets out a sociological examination of constitutions marked by strong, activist judiciaries, by entrenched systems of human rights protection, and by emphatic implementation of global human rights law. Contra standard critiques of this constitutional model, it argues that such constitutions need to be seen as creating a new pattern of democracy, which is often distinctively adapted to structures in societies in which the typical patterns of legitimation and subject formation required for democratic government were obstructed. In polities with such constitutions, legal institutions and norm setters have at times assumed the status of functional equivalents for more typical democratically mandated actors and institutions. In such polities, further, global law assumes essential importance as it creates new sources of normative authorization for legislation and stimulates new lines of articulation between government and society. The article concludes that analysis of such polities, exemplified by Colombia, shows that the common categories of democratic-constitutional analysis are no longer always adequate for understanding current tendencies in democratic formation, and they can easily undermine democracy itself. Keywords Global constitutionalism . Colombia . Democracy
1 Introduction In recent years, a model of national constitutionalism has become widespread that deviates from classical patterns of constitution making. This new constitutional model is closely linked
* Chris Thornhill [email protected] Carina Rodrigues de Araújo Calabria [email protected]
1
University of Manchester, Manchester, UK
2
Universidade Federal de Pernambuco, Recife, Brazil
Global Constitutionalism and Democracy: the Case of Colombia
to the emergence of a global constitutional order, as it is characterized by the fact that domestic constitutional norms reflect international human rights law, and international norm setters often predefine the basic principles of the national constitution.1 This model is marked, further, by the fact that, within the domestic polity, judicial bodies assume particular prominence, and they subject political institutions to strict control, at times curbing legislative activity, or even acquiring legislative responsibilities.2 The acquisition of such authority by judicial institutions is normally justified on the grounds that they enforce norms based, either directly or indirectly, in international human rights law.3 In this model, as a result, legislative force is not solely vested in agents of popular sovereignty, and the original authority to initiate legislative acts may reside in transnational organizations, supranational judicial organs, or domestic courts, applying international norms. Generally distinctive in this model of democracy is that the legal system operates at a high degre
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