This chapter aims to address the idea of judicial activism from two perspectives, a theoretical and an empirical one. From a theoretical perspective, it seeks to articulate a definition of this phenomenon. To this end, the chapter will 'clean' the definitional slate and will argue, first, that an accurate conception of judicial activism should not be equated with concrete manifestations of what is usually thought of as judicial activism. Later, it will claim that judicial activism is better understood as the (im)proper use of judicial powers: judges act beyond the set of powers vested by norms of competence, but just as if they were within them. It will be contended, likewise, that this definition is accurate enough to prevent the existence of false positives and false negatives when identifying instances of judicial activism. Secondly, and from an empirical angle, the chapter will test the performance of this conception using as a case study the Colombian Constitutional Court's case law on judicial review of constitutional amendments, one of the most activist forms of review in contemporary constitutionalism. This second part also will show that, in the case of the Colombian Constitutional Court when scrutinizing amendments, standard definitions of judicial activism miss the mark as they are prone to produce false positives (i.e., incorrectly labeling certain non-activist decisions as activist judgements) and false negatives (i.e., missing the identification of actual activist decisions).

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. Parting from a case study of the Colombian Constitutional Court, this paper develops a theory of judicial role focused on political context, and particularly on party systems. Colombian parties are unstable and poorly tied to civil society, therefore Congress has difficulty initiating and monitoring the enforcement of policy, as well as checking presidential power. For that reason, the Constitutional Court has responded by taking many of these functions into its own hands. We argue that the Colombian Court’s actions are sensible given the country’s institutional context, even though virtually all existing theories of judicial role in comparative public law would find this kind of legislative-substitution inappropriate. Those theories rest upon assumptions about political institutions that do not hold true in many of the developing countries.

Since its creation in 1991, the Colombian Constitutional Court (hereinafter, CCC) has been one of the main protagonists of the country’s institutional and political life. Its vigorous intervention on various economic, political and social matters has promoted important changes in the institutional balance of power, as well as in the concrete lives of traditionally marginalized or excluded social groups. This judicial progressive activism1 has prompted a great deal of both academic and political discussion. It has been defended by some scholars and social movements, while it has been strongly criticized by others, including relevant legal and political actors.

This Article focuses on a case study of Colombia's judicial system by discussing the scope and competence of courts when facing legal revolutions. The term "revolution" is defined narrowly to mean the process of altering an existing constitutional system-either through constitutional amendments, or outside of such process-in order to achieve legal and social transformations. With this definition in mind, this Article aims to assess the role that Colombia's courts play within said revolutions by evaluating two events in Colombian constitutional history: (1) the enactment of the 1991 Constitution; and (2) the implementation of the Peace Agreement with the Colombian Armed Revolutionary Forces (the FARC) after it was originally rejected in a plebiscite. This Article will also draw a parallel between both events in order to demonstrate that constitutional courts are not the ideal arena to carry out "legal revolutions." Rather, these revolutions should be fought in the political arena. To support this thesis, the 1991 constitutional revolution will be portrayed as a "down-to-top" process that had strong popular support and changed the judicial tradition of the highly formalist and conservative Colombian Supreme Court. On the other hand, during the second revolution explored by this Article, the Colombian Constitutional Court had to take a conservative approach in its implementation of the Peace Agreement due to the lack of popular support for that agreement. This decision resembled what Ran Hirschl called "hegemonic preservation."

ABSTRACT Over the past century, Latin America experienced important political changes. Many countries in the region –such as Argentina and Brazil– faced both harsh authoritarian governments and flourishing democracies. In these two countries, the constant changes of political regimes also brought important institutional changes in the Judicial Power, particularly in the Supreme Court. This paper will analyze the institutional change of the Supreme Court from a comparative perspective. By looking at the cases of Argentina and Brazil, we will review the trajectory of both High Courts in a violent political moment (1964 - 1985). In particular, we will analyze the ways in which these courts were altered in moments of authoritarian regimes. Our analysis will focus on the means used to alter each Court and the objectives of these modifications. Although the cases share some similarities, it is fundamental to remark that each case has its particular trajectory. To understand this, we will analyze the institutional transformation of the High Courts in Argentina and Brazil from a historicaperspective, always keeping in mind the violent contexts in which these changes tend to occur.

The Colombian Constitutional Court is widely known for being one of the emblematic and activist Courts representing the New-constitutionalism of the Global South, and also for the judicial review of the constitutional amendments under the ‘constitutional replacement doctrine’ (substitution doctrine). The Court adopted the substitution doctrine since its decision C- 551/2003, in a time that coincides with the global expansion of the judicial review of constitutional amendments. However, it is far less known that, in Colombia, the debate about the judicial review of the constitutional amendments commenced several decades before that global expansion. This article intends to reconstruct the judicial review path of the constitutional amendments, and to show the interdependence between the political context and the doctrines of both the Supreme Court (1955–1991) and the Constitutional Court (1992–2016). The article examines this interdependence to contribute to a better understanding of the role of the Legislature, the Executive and the Judiciary in the construction of legal doctrines, such as the supremacy of the Constitution, the principle of separation of powers, the intangibility of constitutional clauses or the power of constitutional reform in the complex political context of a South American country. In sum, this article seeks to present how the judicial review path of the constitutional amendments in Colombia began long before the ‘expansion’ of that phenomenon at a global level, to show the interdependence between Law and Politics on that path, and to highlight the different Supreme Court and the Constitutional Court judicial activism in this topic since 1955 to the present.

This article has four parts. The first one shows the reception of the "Counter-majoritarian Difficulty" (CMD) in Colombia, it is to say, how the tension between judges an democracy, a constitutional topic created by Alexander Bickel in America, was received. The second part explains the answer that constitutional judges in Colombia gave to the tension with the democratic principle by promoting dialogical rulings. The third one describes, in a general way, the LGTBI movement in Colombia and dialogues it generated in the Constitutional Court to achieve the protection of their rights against majorities. Finally, in the fourth part, some jurisprudence lines of the Colombian Court are shown to demonstrate how it promotes, collaborates, and aids democracy when this is not granted by the representatives.

"A distinctive form of constitutionalism – some call it “Latin American Social Constitutionalism” (LASC) – is spreading throughout the region in the wake of many transitions from authoritarian rule to democracy. The earlier, “liberal” constitutional tradition reflected a compromise among elites (the “liberal-conservative pact”). It featured a powerful executive, weak legislative authority, and a strong, independent, but typically conservative judiciary. Ideologically, constitutions during this period were oriented toward small, non-interventionist government, individual rights, and an over-arching commitment to private property. By contrast, the common features of LASC are constitutional incorporation of social and economic rights (SER) that are, with a few exceptions, judicially enforceable, the opening of domestic legal systems to international human rights law and norms, and a promise of reinvigorated democracy based on direct popular participation. Judicial review is not new in Latin America, but the new social constitutionalism expands the courts’ power and role in reviewing and assessing social and economic policy. Whereas rights-protection was previously confined almost exclusively to the political branches, it is now in part the business of courts. It remains to be seen whether LASC delivers effectively on its aspirational, transformative, and strongly egalitarian promises. This chapter examines the experiences to date in Colombia and Chile, looking at how those jurisdictions have attempted to enforce SER and to navigate tensions present in LASC constitutions. We evaluate the prospects of SER litigation and the processes of deliberation and popular participation set in motion by courts, focusing on cases that define the content and enforcement of SER. We address whether two seemingly conflicting commitments – inclusive citizen participation at the grassroots level and new forms of judicial activism – can be reconciled. Are SER enforcement processes in which unelected judges wield considerable power compatible with participatory and deliberative democracy? We conclude that Colombian and Chilean courts are most effective in the role of dialogue igniters, shaking up the political process directly (as in Colombia) or indirectly (as in Chile). A key precondition for their success is effective inclusion of citizens at the grassroots level, as opposed to simple promotion of inter-branch dialogue."