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Between democratic security and democratic legality : discursive institutionalism and Colombia’s Constitutional Court Boesten, Jan


This dissertation seeks to explain why the Colombian Constitutional Court disallowed a referendum to extend presidential terms in 2010, when it allowed a similar reform in 2005. There are three elements to this decision that make it remarkable for institutional theory and comparative politics: 1) The sitting president, Álvaro Uribe, was an extremely popular and powerful president, who used his transformative capacities to initiate a far-reaching reform agenda; 2) the Court’s authority appreciably increased between 2005 and 2010; 3) the jurisprudence of the Court involved a doctrine that is not explicitly mentioned in the Constitution, but a re-interpretation of the norms outlining judicial review of constitutional reforms. This dissertation inserts the 2010 decision in the historical and political context and asks three questions that guide each chapter: 1) Does the 1991 Constitution amount to a critical juncture in Colombia’s political history? 2) Does the post-genesis evolution of Colombia’s constitutional jurisprudence follow a path-dependent logic? 3) Did judges follow strategic incentives when they developed and applied the substitution doctrine, which struck down Uribe’s reform to extent the number of terms in the presidential office? Building on the Colliers’ critical juncture framework, I show that the 1991 constituent process was a contingent event marked by genuine communicative action that incorporated sections from society previously marginalized, negotiated with important public input, and entirely restructured the meaning of the organizational imperatives of the polity. Contrary to expectations from the discontinuous change model, post-genesis development cannot be fully captured by path dependence, but involves incremental changes of institutional learning inside the judiciary. The investigation into the re-election decisions will show that institutional learning depends on carefully administered spaces of deliberation inside the Court that buttress the cohesion of legal reasoning. Altogether, this leads me to view institutions not as structured expectations in a game between rational actors or regularized patterns of conducts, but discursive structures, in which actors negotiate the meaning and significance of norms with reference to a constitutional text and the intention of the constituents that drafted the charter in the first place. The constitutional judge is a deliberative judge.

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