1Political institutions and judicial role in comparative constitutional law

VOLUME 51, NUMBER 2, SUMMER 2010

Political Institutions and Judicial Role in Comparative Constitutional Law
David Landau*

Comparative constitutional law scholarship has largely ignored political institutions. It has therefore failed to realize that radical differences in the configuration of political institutions should bear upon the way courts do their jobs. This Article develops acomparative theory of judicial role that focuses on broad differences in political context, and particularly in party systems, across countries. I use the jurisprudence of the Colombian Constitutional Court (supplemented by briefer studies of the Hungarian and South African Constitutional Courts) to demonstrate how differences in political institutions ought to impact judicial role. Because Colombianparties are unstable and poorly tied to civil society, the Colombian Congress has difficulty initiating policy, monitoring the enforcement of policy, and checking presidential power. The Court has responded by taking many of these functions into its own hands. I argue that the Court’s actions are sensible given Colombia’s institutional context, even though virtually all existing theories ofjudicial role in American and comparative public law would find this kind of legislativesubstitution inappropriate. Existing theories rest upon assumptions about political institutions that do not hold true in much of the developing world. The American focus on the anti-democratic nature of judicial action assumes a robust constitutional culture outside the courts and a legislature which does a decentjob representing popular will—both assumptions tend to be false in newer democracies. The case studies demonstrate that comparative public law scholars must be attentive to political context in order to build tools suitable for evaluating the work of courts outside the United States.

INTRODUCTION In the late 1990s, Colombia was confronted with a mortgage crisis that threatened several hundredthousand middle-class homeowners.1 The president and congress ignored the problem; the president was too focused on addressing international calls for fiscal austerity, while the legislature was too dysfunctional to take action. The Colombian Constitutional Court (the “Colombian Court” or the “Court”) began receiving a flood of constitutional complaints from the homeowners and decided to act. It heldlegislative-style hearings to which it invited homeowners’ groups, bankers, economists, and state agencies, and it received a myriad of reports from these actors. Although its approach was interactive and the final housing bill was
* Climenko Fellow and Lecturer on Law, Harvard Law School, 2007-2009. J.D., Harvard Law School, 2004. Ph.D. candidate, Department of Government, Harvard University,comparative public law and comparative politics. I would like to thank Christine Desan, David Fontana, Tara Grove, Daryl Levinson, Daniel Meltzer, Frank Michelman, Miguel Schor, David Schleicher, Cindy Skach, Matthew Stephenson, Mark Tushnet, Adrian Vermeule, participants in the Comparative Law Work in Progress Workshop at the University of Michigan, and participants in the Northeast Law & SocietyConference, for comments and conversations about this article. 1. See infra Part III.C.1.

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largely drafted by the president, the Court itself had a dominant hand in shaping the details of housing policy. Backed by the fairly precise information that it had received during its investigative process, the Court felt that it had sufficientinformation to play an on-the-ground role in drafting policy. By two measures, the Court’s work, although imperfect, was successful: it was very popular and it kept most homeowners in their homes. How can we evaluate the Colombian Court’s actions in addressing the housing crisis? Under two potential rubrics, American constitutional theory and the emerging set of prescriptions on the enforcement of...