The Two Discourses in Colombian Constitutional Jurisprudence: A New Approach to Modeling Judicial Behavior in Latin America

Abstract

I. INTRODUCTION Understanding, explaining, and modeling judicial behavior is important for the legal academic and the political scientist alike. Because legal academics tend to be far more preoccupied with normative questions (Is this a good legal rule? How can it be improved?), the task of formally defining judicial behavior has fallen largely to the political scientists. A vision of the world that privileges economic rationality has influenced political science, even more than law, across a wide range of subfields including U.S. politics, comparative politics, and foreign relations. Political science's rational choice theory-the economic theory of politics-is not so different from, but probably even more influential than, law and economics in legal scholarship. In a manner of double colonization (economics taking over politics, and then politics taking over law), fundamentally economic theories of human behavior have dominated formal, modeled explanations of judicial behavior. However, rational choice theory, although often a useful heuristic for understanding certain aspects of judicial behavior, leaves out too many of the factors that drive judges for it to hold such a prominent place among theories of judicial behavior.1 That rational choice nonetheless has been so influential is largely a result of its impressive structure and clarity. It can generate clear predictions based on a few simple premises and can test those predictions relatively easily, often with large, quantifiable datasets (usually results of cases). My primary purposes here are twofold: (1) by exploring the judicial behavior of constitutional judges in Colombia, to build a richer, more realistic theory of judicial behavior; and (2) to show that one can build such a theory without losing all of the structure and clarity that makes rational choice modeling a seductive tool. More specifically, I hope to contribute to two separate bodies of literature. First, there is the literature that Western legal scholars created on discourse in Latin American legal systems. This literature is both sparse and rent with considerable ideological preconceptions about U.S. and European legal systems; these preconceptions limit, for the most part, the usefulness of the descriptions.2 Second, there is a large volume of literature created by U.S. political scientists, which is generally focused on U.S. courts and aims to understand judicial behavior. The two most prominent schools of thought in this sub-field, attitudinalism and strategic theory, share the same rational choice underpinning. The challengers to attitudinal and strategic scholars are a loosely defined group of academics identified as legalists; they believe that judicial behavior is best seen not as an attempt to maximize some political policy goal to which the judge is attached, but as a response, at some level, to the judge's notion of what the law is. Unfortunately, the legalist model is extraordinarily underdeveloped, suffering both from a lack of interest from political scientists and from an almost exclusive attention to the U.S. federal courts: Legalist models have thus not gotten very far beyond focusing on mechanical adherence to precedent. I seek to bridge the gap between the two literatures noted above and to use comparative work to lend some clue as to what a richer conception of the legalist model might look like. I use discourse (what judges say when they decide cases) as a clue to judicial worldviews. Using Colombian constitutional courts in the 1980s and 1990s, I argue that there are presently at least two completely different judicial worldviews about constitutional law in Latin America: (1) a traditionalist Latin American view that minimizes the role of constitutions by focusing on concrete rules, which form a relatively small part of constitutional discourse; and (2) a newer view that focuses on the principles and values behind constitutions, and thus tends to read them broadly. …

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