Lopez Cuellar, Nelcy - State Legal Pluralism: Between Conflict and Dialogue

State Legal Pluralism: Between Conflict and Dialogue,
Insights from a Colombian Case
Nelcy López Cuéllar
Degree of Doctor in Civil Law
Faculty of Law
McGill University
Montreal, Quebec, Canada
Thesis Submitted in Partial Fulfilment of the Requirements for the Degree of Doctor in
Civil Law
July. 21, 2011
© Nelcy López Cuéllar, 2011 All rights reserved

DEDICATION
Señor mío y Dios mío
i
ACKNOWLEDGMENTS
Pursuing a doctorate is a somewhat isolated process. Nonetheless, it would have been
impossible to pursue my doctorate in complete isolation. Numerous people and
institutions have given me the academic, emotional and financial support necessary to
bring my doctoral project to an end. To all of them, I am deeply thankful.
Prof. Evan Fox-Decent has been an outstanding supervisor. His rigorous and
thorough commentaries on my thesis were vital to writing a solid work. Moreover, Evan
was always keen to respond to all my questions, from the most elemental to the most
complex. He also provided me financial support from his research fund during my
summers of lonely library research. Along with Evan, Prof. Roderick Macdonald and
Prof. Robert Leckey helped me to further refine my research. The challenges they posed
to my concepts of authority and institutional dialogue, respectively, caused me to better
substantiate my arguments.
My Yale friends, Sebastian and Or, helped me reshape my doctoral proposal. My
McGill friends supported me during my doctoral studies. Graciela, Melissa, Enrique,
Edin and Pilar listened to my story about the Colombian high courts over and over and
were always open to enriching discussions on my doctoral topic. Tom, Maureen and
Karen kindly read and commented on the first chapter of my thesis. Alexandra, my
McGill friend and editor, patiently went over several drafts of my thesis. Without her, my
ideas will not be as clear and well-written as you read them now. The McGill Law library
staff was kind and welcoming day after day.
My sister, Mónica, opened her home in Canada to me during my first years of
doctorate. She also listened to my legal ideas attentively and carefully and gave me
ii
feedback from a non-legal perspective. Luis José, Nico and Samuelito were family away
from home. My parents, Pedro and Gloria, and my brother Pedro, accompanied me from
a distance by being proud of my decision to pursue a doctorate. They understood the
value of pursuing a doctorate at McGill and were very supportive of this undertaking.
Last, but not least, David brought happiness to my life during my last year of doctorate.
McGill University and, in particular, the McGill Faculty of Law, provided me
with financial support through the Macdonald Graduate Fellowship, the Principal’s
Graduate Fellowship, the Research in Corporate Governance Fund, and the Teaching
Fellowship in Law. This support was essential to advance and complete my doctoral
research.
iii
Table of Contents
DEDICATION .................................................................................................................... i
Table of Contents .............................................................................................................. iv
List of Figures .................................................................................................................. vii
INTRODUCTION...............................................................................................................1
Kelsen and the Constitutional Court ...............................................................................1
Kelsen in Colombia.........................................................................................................2
Inside and outside the Colombian Kelsenian Model.......................................................5
Five Questions ................................................................................................................6
This Thesis’s Contribution..............................................................................................7
Methodology .................................................................................................................11
The Colombian Case as a Threefold Story ...................................................................14
CHAPTER I THE STORY IN THEIR OWN WORDS...................................................18
1.1 Introduction.............................................................................................................18
1.2 Colombia’s Judicial Structure.................................................................................18
1.3 The Interviews ........................................................................................................28
1.3.1 The story in Ms. CC’s words ...........................................................................29
1.3.2 The story in Ms. SCJ’s words ..........................................................................54
1.3.3 The story in Mr. COS’s words.........................................................................64
1.4 Conclusion ..............................................................................................................77
CHAPTER II CONSTITUTIVE AND COMPLEMENTARY ELEMENTS OF
STATE LEGAL PLURALISM.........................................................................................79
2.1 Introduction.............................................................................................................79
2.2 The State of Georgia v. The Supreme Court of the United States ..........................81
2.2.1 Worcester v. Georgia .......................................................................................81
2.2.2 Brown et al. v. Board of Education of Topeka et al.........................................86
2.3 Constitutive Elements of State Legal Pluralism......................................................92
2.3.1 Location at the Governmental Structure of the State.......................................92
2.3.2 Involvement of More than One Public Authority ..........................................102
2.3.3 Presence of Tension over a Decision on the Same Subject Matter................103
2.3.4 Existence of Hierarchically Irresoluble Tension............................................110
2.3.5 Existence of Ideological Difference (complementary element).....................114
2.4 Conclusion ............................................................................................................117
CHAPTER III THE COLOMBIAN HIGH COURTS: A MULTI-HEADED
DRAGON WITH TWO CONSTITUTIONAL IDEOLOGIES ......................................119
3.1 Introduction...........................................................................................................119
3.2 The Colombian Judiciary as a Multi-headed Dragon ...........................................120
3.3 The Colombian High Courts: a Multi-headed Dragon with Two
Constitutional Ideologies ......................................................................................130
3.3.1 Pension Rights ...............................................................................................133
3.3.2 State v. Individual ..........................................................................................136
3.3.3 The 1991 Constitution as Rights-entrencher..................................................141
3.3.4 The 1991 Constitution as a Power-distributor ...............................................144
3.3.5 The 1991 Constitution as a Power-distributor with Some
Rights-based Features ....................................................................................149
3.4 Conclusion ............................................................................................................151
CHAPTER IV THE COEXISTENCE OF AUTHORITY-CLAIMING
INSTITUTIONS AND THE LACK OF OBEDIENCE..................................................152
4.1 Introduction...........................................................................................................152
iv
4.2 Coexistence of Authority-claiming Institutions, Disobedience and
Accommodation as Separate Indicia of Legal Pluralism ......................................153
Accommodation as Correlated Indicia of Legal Pluralism ...................................157
4.3.1 Content-independence ...................................................................................162
4.3.2 Legitimate Authority......................................................................................165
4.3.3 The Implications of Recognition ...................................................................175
4.3.4 The Coexistence of Authorities and the Lack of Obedience as
Correlated Phenomenon.................................................................................179
4.4 Civil Disobedience and Legal Pluralism...............................................................181
4.5 Conclusion ............................................................................................................183
CHAPTER V BEYOND POLITICAL AUTHORITY ...................................................185
5.1 Introduction...........................................................................................................185
5.2 The State’s Institutions and Authority: the Rule of Law ......................................187
5.2.1 Formal and Substantive Conceptions of the Rule of Law .............................190
5.2.2 Tensions .........................................................................................................196
5.2.3 Good Faith Disobedience...............................................................................200
5.3 The Colombian High Courts .................................................................................205
5.3.1 Precedent as a Source of Law ........................................................................207
5.3.2 The Constitutional Court’s Recognition of Precedent as Binding Law.........209
5.3.3 The Supreme Court of Justice’s Multifaceted Denial of Precedent...............211
5.3.4 The Council of State’s Denial of Precedent...................................................214
5.3.5 Disobedience of Remedies Ordered by the Constitutional Court ..................216
5.3.6 Avoidance of Judicial Review by the Supreme Court of Justice:
a One-way Game of Hide and Seek..............................................................220
5.4 Disobeying and Claiming Authority .....................................................................226
5.4.1 The Supreme Court of Justice’s Language of Authority ...............................228
5.4.2 The Council of State on Disobedience: a Discourse of Authority
and not Subjugation .......................................................................................229
5.4.3 The Constitutional Court on Disobedience....................................................232
5.5 Conclusion ............................................................................................................237
CHAPTER VI INTER-INSTITUTIONAL DIALOGUE................................................239
6.1 Introduction...........................................................................................................239
6.2 Elements of Dialogue............................................................................................240
6.2.1 Presence of I and the other ............................................................................241
6.2.2 Reciprocal Engagement .................................................................................249
6.2.3 Mutual Listening and Response.....................................................................251
6.2.4 Equal Status ...................................................................................................251
6.2.5 Dissensus .......................................................................................................254
6.3 Dialogue in a Relationship of Authority? .............................................................256
6.3.1 Authority and Subject v. I and the other........................................................258
6.3.2 No mutual Engagement .................................................................................259
6.3.3 Authority’s Indifference ................................................................................261
6.3.4 Unequal Status ...............................................................................................263
6.3.5 Disagreement .................................................................................................266
6.4 The Possibility of Dialogue Between Authorities.................................................267
6.4.1 A Revision of the Canadian “Dialogue” Between Courts and Legislatures ..268
6.4.2 The Theory of Coordinate Construction ........................................................276
6.5 Conclusion ............................................................................................................282
CHAPTER VII INTER-INSTITUTIONAL DIALOGUE IN COLOMBIA..................283
7.1 Introduction...........................................................................................................283
v
7.2 Constitutional Design............................................................................................284
7.3 Colombian Constitutional Design .........................................................................286
7.3.1 The Kelsenian Influence ................................................................................287
7. 3.2 Harmonic Collaboration ...............................................................................300
7.3 Dialogue as an Aspiration .....................................................................................311
7.4 Conclusion ............................................................................................................313
CONCLUSION ...............................................................................................................314
Bibliography....................................................................................................................318
Canadian Legislation ..................................................................................................318
Foreign Legislation .....................................................................................................318
American Legislation..............................................................................................318
Colombian Legislation............................................................................................318
Jurisprudence ..............................................................................................................319
Colombian Constitutional Court .............................................................................319
Colombian Supreme Court of Justice .....................................................................324
Colombian Council of State....................................................................................326
United States Supreme Court..................................................................................329
Inter-American Commission on Human Rights .....................................................329
Secondary material: Monographs ...............................................................................330
Secondary material: Articles.......................................................................................339
Secondary material: Thesis .........................................................................................347
vi
List of Figures
Figure 1: Structure of the Colombian judiciary prior to 1991.. ........................................ 21

Figure 2: Structure of the Colombian judiciary after 1991............................................... 22
Figure 3: The Supreme Court of Justice and the Constitutional Court confront
each other on the possibility of guardianship review of judicial decisions. ..................... 25
Figure 4: The Supreme Court of Justice and the Constitutional Court threat
the judiciary´s balance due to the dispute over guardianship review of judicial decisions.
........................................................................................................................................... 26
vii
ABSTRACT
The question whether judicial decisions can be reviewed on constitutional grounds in

Colombia has given rise to a long-lasting conflict between the Colombian Constitutional
Court, on the one hand, and the Colombian Supreme Court of Justice and Council of
State on the other. The Constitutional Court claims to have the authority to review
judgments of the other two high courts, while these courts claim to have exclusive
authority over ordinary and administrative law. This simultaneous claim of authority has
lead to disobedience of the Constitutional Court’s judgments by the other two high
courts.
I argue that this conflict is an example of state legal pluralism. State legal
pluralism, I claim, is a coexistence of authority-claiming institutions that: takes place
within the governmental structure of the state; includes two or more public institutions;
and involves a hierarchically irresoluble tension between or among these institutions over
a decision on the same subject matter. I also assert that in all cases of legal pluralism,
state legal pluralism included, there is a correlation between the coexistence of authority-
claiming institutions and the lack of obedience. I claim, moreover, that disobedience and
mere compliance are subspecies of the lack of obedience. A form of mere compliance can
be accommodation of authority-claiming institutions and one way in which this
accommodation can manifest itself is through inter-institutional dialogue.
I argue that dialogue between coexistent authority-claiming state institutions is
possible if their claim of authority is made against private parties only. Finally, I state
that dialogue would be possible between the Colombian high courts if, based on the
Colombian constitutional clause of harmonious collaboration, these courts claimed
authority against private parties only.
viii
ABRÉGÉ
En Colombie, la question du contrôle de la constitutionnalité des décisions judiciaires a

donné lieu à un conflit de longue durée opposant, d’une part, la Cour constitutionnelle de
Colombie et, d’autre part, la Cour suprême de justice et le Conseil d’État. La Cour
constitutionnelle prétend avoir l’autorité nécessaire pour réviser les arrêts des deux autres
hautes juridictions, alors que celles-ci considèrent avoir l’autorité exclusive sur le droit
privé et administratif respectivement. Cette concurrence de prétentions à l’autorité a
débouché sur la désobéissance des deux hautes cours face aux décisions de la Cour
constitutionnelle.
Nous défendons la thèse en vertu de laquelle ce conflit constitue un exemple de
pluralisme juridique étatique. Nous affirmons que le pluralisme juridique étatique
correspond à la coexistence d’institutions ayant prétention à l’autorité; coexistence qui se
produit a l’intérieur de la structure de l’État, qui inclut au moins deux institutions
publiques, et qui implique une insoluble tension hiérarchique parmi ou entre lesdites
institutions au sujet d’une décision qui porte sur la même matière.
Nous avançons par ailleurs que dans toutes les occurrences de pluralisme
juridique, ce qui inclut le pluralisme juridique étatique, il y a corrélation entre la
coexistence des institutions prétendant à l’autorité et le défaut d’obéissance. De plus,
nous soutenons que la désobéissance et la conformité formelle sont des sous-catégories
du défaut d’obéissance. Une expression de la conformité formelle pourrait être
l’accommodement des institutions prétendant à la compétence, notamment au travers du
dialogue interinstitutionnel.
Nous avançons que le dialogue entre les institutions prétendant à l’autorité est
possible si leurs prétentions à l’autorité ne concernent que des parties privées. Enfin, nous
affirmons que la possibilité du dialogue entre les hautes cours colombiennes serait
possible si, tenant compte de la disposition constitutionnelle relative à la collaboration
harmonieuse, lesdites cours prétendaient avoir autorité uniquement contre les parties
privées.
ix
INTRODUCTION
Kelsen and the Constitutional Court
At the beginning of the twentieth century, Austrian-American legal thinker Hans Kelsen
proposed an alternative to the American model of constitutional review. Kelsen’s
proposal centred around the creation of a special court to guard the constitution, namely
the Constitutional Court. 1 According to Kelsen, the role of this court would be that of a
negative legislature. 2 The court would analyse whether statutes were in fact enacted by
constitutionally authorised organs and according to constitutional procedural
requirements. 3 If these constitutional requirements were not fulfilled, the statute would be
struck down by the Constitutional Court.
In Kelsen’s model, decisions made by ordinary judges would not be reviewed by
the Constitutional Court. Rather, these decisions would remain subject to review by the
ordinary court of last resort, whose opinion would have the force of a final judgment on
1
Hans Kelsen, "La Garantie Juridictionnelle de la Constitution: La Justice constitutionnelle" (1928?) 44
Revue du Droit Public et de la Science Politique en France et à l'Étranger 197 at 123,125 [Kelsen, "La
Garantie Juridictionnelle de la Constitution"]. Accord Hans Kelsen, Qui Doit Être le Gardien de la
Constitution?, translated by Sandrine Baume (Paris: Michel Houdiard, 2006) [Kelsen, Qui Doit Être]. See
also Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford: Oxford
University Press, 2000) at 34 [Stone Sweet, Governing with Judges].
2
Kelsen, Qui doit Être, supra note 1 at 187.
3
Kelsen’s ideal constitution was not supposed to embrace a long list of substantial rights. The legislature,
thus, prima facie, would not be substantially limited by the court. See Hans Kelsen, Introduction to the
Problems of Legal Theory: a Translation of the First Edition of the Reine Rechtslehre or Pure Theory of
Law, translated by Bonnie Litschewski Paulson and Stanley L. Paulson (New York: Oxford University
Press, 1992) at 17, 18 [Kelsen, Introduction to the Problems of Legal Theory]. Accord Kelsen, “La
Garantie Jurisdictionnelle de la Constitution”, supra note 1 at 238-242; and Hans Kelsen, Pure Theory of
Law: Translation from the Second (Revised and Enlarged) German Edition, translated by Max Knight
(Berkeley, Los Angeles, London: University of California Press, 1967) at 35, 36 [Kelsen, Pure Theory of
Law]. See also Lars Vinx, Hans Kelsen's Pure Theory of Law: Legality and Legitimacy (New York: Oxford
University Press, 2007) at 23, 158-159 [Vinx, Hans Kelsen's Pure Theory of Law].
1
ordinary matters. 4 At most, the Constitutional Court would have jurisdiction over
constitutional questions originating in the courts. 5 In the pure Kelsenian model, then,
courts with distinct judicial functions would peacefully coexist but would not share
mixed jurisdiction. Indeed, this model would create a happy cohabitation of jurisdictions.
Kelsen’s dual model of courts has since been implemented in numerous European
countries, such as Germany, Spain, Italy, and Poland, to name a few. In addition to the
role that Kelsen had envisioned for the Constitutional Court, the Kelsenian model in most
of these countries now includes judicial review of Supreme Court decisions by the
Constitutional Court. Yet, in several countries where the Kelsenian model has been
implemented along with judicial review of judicial decisions, the coexistence of high
courts has not been a peaceful one. 6
Kelsen in Colombia
Kelsen’s model, along with its more contemporary institutional interaction among high
courts, has travelled beyond Europe. In 1991, Colombia implemented the dual system of
courts and several fundamental-rights-related substantive changes to its constitutional
structure. As a result of the Colombian 1991 constitutional reforms, four main changes
4
Kelsen, Pure Theory of Law, supra note 3 at 269 and 270.
5
Kelsen did not foresee the possibility of judicial review of judicial decisions. After mentioning that the
general rule in modern legal systems is that the legality of administrative actions, legislative acts and
judicial decisions is controlled by the same organ that issued the act or decision or by its superior, Kelsen
suggests that this should not be the general rule. Only in the case of courts, and because of their
independence, does Kelsen consider it valid to subject the legality of their decisions to their own judicial
review. "On voit en effet dans la seule indépendance des tribunaux une garantie suffisante de la régularité
de leurs actes." Kelsen, "La Garantie Jurisdictionnelle de la Constitution", supra note 1 at 221. See also
Stone Sweet, Governing with Judges, supra note 1 at 36.
6
See generally Lech Garlicki, "Constitutional Courts versus Supreme Courts" (2007) 5:1 International
Journal of Constitutional Law 44. Accord William Burnham & Alexei Trochev, "Russia's War between the
Courts: The Struggle Over the Jurisdictional Boundary between the Constitutional Court and Regular
Courts" (2007):55 American Journal of Comparative Law 381.
2
were entrenched in Colombian constitutional law: the positivisation of a wide range of
fundamental constitutional rights; the establishment of a “guardianship” action to protect
such rights; 7 the creation of the Constitutional Court; 8 and the authorisation of every
judge and justice of the country - from either the ordinary or the administrative
jurisdiction - to act as a guardianship judge. That is to say, in Colombia every judge is
simultaneously a judge of his or her particular jurisdiction (ordinary or administrative)
and a constitutional judge competent to adjudicate matters involving fundamental
constitutional rights.
In Colombia, individuals who bring guardianship actions and lose are entitled to
bring a motion to appeal the guardianship trial judgment. The appellate guardianship
judge is the hierarchical superior of the guardianship trial judge in the ordinary or
administrative jurisdiction (e.g. if the trial guardianship judge is circuit judge, the
appellate guardianship judge would be a chamber of the corresponding departmental-
level tribunal). Under the terms of the 1991 Constitution, the highest authority of
constitutional jurisdiction in Colombia is the Constitutional Court. As such, it can review
any guardianship judgment at its discretion. 9
Through the guardianship action, Colombian judges have the authority to review
any act by public authorities that allegedly violates fundamental constitutional rights.
7
The guardianship action is an accessible procedure. An individual does not need a lawyer to bring it, does
not need to pay judicial fees, and does not have to elaborate a cause of action in lawyerly language; plain
language that sets out the basis of the complaint is sufficient. This action is also very fast. Trial
guardianship judges have to decide the case in ten days and appellate guardianship judges have twenty days
to deliver a decision. The Spanish term to refer to the guardianship action is acción de tutela.
8
This Court was created in addition to two pre-existent high courts: the Supreme Court of Justice and the
Council of State. These courts study ordinary and administrative law cases, respectively, and have been
part of the Colombian high judiciary since 1886.
9
The Constitutional Court can even review guardianship judgments delivered by the Supreme Court or the
Council of State acting as guardianship judges.
3
The Constitutional Court has held that judicial decisions are acts of public authority 10
within the meaning of Article 86 of the 1991 Constitution, and thus are subject to
guardianship review. 11 Accordingly, a plaintiff or a defendant in an ordinary or
administrative proceeding can bring a guardianship action against the judge who decided
the case in order to challenge his or her decision on fundamental constitutional rights
grounds.
While the Constitutional Court has almost invariably supported the possibility of
judicial review of judicial decisions on constitutional grounds, the Supreme Court of
Justice and the Council of State have almost always resisted this form of review. From
1992 on, there have been moments in which the tension was so pronounced that the
Supreme Court and the Council of State openly resolved to refuse to comply with all
Constitutional Court guardianship decisions that claimed to set aside judgments of the
Supreme Court of Justice or the Council of State. This refusal to comply is truly of an “in
your face” variety, as it has persisted in some cases despite the Constitutional Court’s
repeated insistence on compliance with its decisions.
10
A public authority is a person vested with the jurisdiction to decide in the name of the state. See T-1057-
02 CC; T-579-93 CC; and T-572-92 CC, among other judicial decisions. The citation of the Constitutional
Court judgments will be based on the following parameters: the first letters, either T, C, SU, or A would
stand for the type of judgment: T for tutela, or guardianship judgments, SU for sentencia de unificación or
unification judgment, C for constitucionalidad or abstract constitutional review of statutes judgments, and
A for auto or interlocutory decision. The number following the letter stands for the number the case was
assigned after its decision was delivered, according to its chronological order of issuance. Finally, the last
two digits of the citation stand for the year when the decision was issued. The acronym CC stands for
Constitutional Court of Colombia.
11
Article 234 of the 1991 Constitution stipulates that “the Supreme Court of Justice is the maximum
tribunal of the ordinary jurisdiction”; Article 237 of the 1991 Constitution establishes that the Council of
State is the “supreme tribunal on administrative law disputes”; and Article 241 of the 1991 Constitution
stipulates that the Constitutional Court is entrusted with the “guarding of the integrity and of the supremacy
of the Constitution” [translated by the author].
4
Inside and outside the Colombian Kelsenian Model
From 2000 to 2006, I was a law clerk at the Colombian Constitutional Court. From my
perspective as a Constitutional Court law clerk, the disobedience of the Constitutional
Court’s orders by the Supreme Court of Justice and the Council of State was an overt
violation of the 1991 Constitution. Initially, I was motivated to study this tension
between the Colombian high courts at an in-depth level because of a feeling of
indignation at what I perceived was a consistent violation of the 1991 Constitution. As
could be surmised, my initial goal was to bring an end to the saga of disobedience of
Constitutional Court judgments by the Supreme Court of Justice and the Council of State.
By taking this initial approach, I thought about, for example, implementing severe
contempt of court measures to oblige the disobedient high courts to comply with the
Constitutional Court’s judgments.
During the first year of my doctoral studies at McGill, this approach was
abandoned when I came to appreciate that, to better understand the controversy between
the Colombian high courts, it was necessary to step back and distance myself from the
belief that the Constitutional Court was the institution that must have the ultimate say in
the controversy. 12 In doing so, I have attempted to convey a more comprehensive account
of the Colombian constitutional story.
12
Although my dissertation does not aim to be a cultural study of law, reading Paul Kahn greatly shaped
my choice of approach. For Kahn, a cultural legal scholar should approach her object of study from the
point of view of the meaning a certain phenomenon has for the community of beliefs rather than for the
validity of a certain proposition. Kahn warns the reader of the fact that distance from one’s beliefs does not
mean abandonment because abandonment can mean not considering a phenomenon worth of study. See
Paul Kahn, The Cultural Study of Law, Reconstructing Legal Scholarship (Chicago and London: The
University of Chicago Press, 1999) at 2-3.
5
After distancing myself from my previous beliefs on the Constitutional Court’s
supremacy, I was able to see the Colombian case from a legal pluralist perspective.
According to legal pluralism, authority-claiming legal systems coexist and compete over
the subjects’ loyalty. For state legal pluralism (“SLP”), a species of legal pluralism, these
features are also present within the state. SLP helped me to frame the high courts’
controversy as one involving the coexistence of authority-claiming institutions within the
Colombian context. Simultaneously, the study of this controversy in light of SLP allowed
me to further specify the constitutive elements of SLP.
Five Questions
With a legal pluralist approach in mind, I address five questions in my dissertation. To
test and confirm the adequacy of my choice of theoretical framework: 1) I first question
whether the Colombian example of the controversy over guardianship review of judicial
decisions constitutes a case of SLP. I answer this question affirmatively. Since
disobedience has been a salient feature of the Colombian example, 2) I study how
disobedience is related to the coexistence of authority-claiming institutions. I argue that
there is a necessary correlation between the coexistence of authority-claiming institutions
and the lack of obedience, two sub-species of which are disobedience and
accommodation. I analyse 3) whether this correlation is also applicable within the state
and, in light of the concept of the rule of law, claim that it is. With this premise in mind,
4) I enquire whether it is possible to have dialogue, as a form of accommodation, among
coexisting authority-claiming institutions, particularly state institutions. I argue that this
is possible. The answer to this latter question leads me finally to explore 5) whether the
6
Colombian example could, eventually, involve institutional dialogue. I suggest that it
could and, in so doing, open new avenues to understanding the Colombian story and
similar legal orders.
This Thesis’s Contribution
To address the above questions, I develop subjects relevant to the theory of SLP, to
constitutional law theory, and to political theory. As for the theory of SLP, I elaborate a
conception that has so far been missing from theories of legal pluralism. Simultaneously,
I explain the possibility of a state including legal pluralism that occurs between or among
state institutions. Also, I show the correlation between two important indicia of legal
pluralism: the coexistence of authority-claiming institutions, on the one hand, and
disobedience and accommodation, as species of the lack of obedience, on the other.
My thesis is also of particular relevance to constitutional law theory. I address the
constitutive elements of dialogue, and the possibility of dialogue, among authority-
claiming institutions. This theoretical endeavour draws on the research of Canadian
constitutional law scholars who consider whether there is a dialogue between the courts
and the legislatures in Canada. Furthermore, my thesis provides a starting point for the
analysis of whether the phenomenon of SLP exists among high courts, as a default rule,
in countries that have implemented the Kelsenian model of constitutional review. My
thesis is, of course, most relevant to Colombian constitutional law since, by framing the
controversy among the high courts in Colombia as a case of SLP, I provide a perspective
so far unexplored by Colombian scholars. In addition to furthering the understanding of
7
the phenomenon, this new perspective explores the possibility of genuine inter-
institutional dialogue in the Colombian setting.
Finally, my thesis underscores the usefulness of interdisciplinarity through the use
of political theorists’ studies on political authority and the rule of law. This framework
reveals SLP as a phenomenon of coexistence of authority-claiming institutions within the
state. This thesis also traces the similarity between disobedience and compliance, as
species of a lack of obedience, a similarity which has so far been unexplored by political
theorists.
My contributions would have not been possible without previous research to build
on. The work of Brian Tamanaha, 13 Roderick Macdonald, 14 Sally E. Merry, 15 and other
legal pluralist scholars, have helped me develop the constitutive elements of SLP within
the wider theoretical framework set out by legal pluralism generally. Santi Romano, 16
Gordon Woodman, 17 and the early works of Jacques Vanderlinden 18 have inspired in
various ways the specific constitutive elements of SLP. Romano and Vanderlinden are
important because, despite substantiating a theory of SLP within a legally hierarchical
idea of the state (a mistaken approach, I will argue) they first explored the idea of
13
See generally Brian Z. Tamanaha, "The Folly of the ‘Social Scientific’ Concept of Legal Pluralism"
(1993) 20:2 Journal of Law and Society 192 [Tamanaha, “The Folly”]. Accord Brian Z. Tamanaha,
"Understanding Legal Pluralism: Past to Present, Local to Global" (2008) online: St. John’s University,
School of Law, legal studies research paper series (SSRN)
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1010105> [Tamanaha, “Understanding Legal
Pluralism”].
14
See generally Roderick A. Macdonald, "Les Vieilles Gardes" (1995) 16 Droit et Société 233; and
Roderick A. Macdonald & Martha-Marie Kleinhans, "What is a Critical Legal Pluralism?" (1997) 12
Canadian Journal of Law and Society 25.
15
See generally Sally E. Merry, "Legal Pluralism" (1988) 22 Law & Society Review 869.
16
See generally Santi Romano, L'Ordre Juridique, translated by Lucien François & Pierre Gothot (Paris:
Dalloz, 1975).
17
See generally Gordon R. Woodman, "Ideological Combat and Legal Observation" (1998) 42 Journal of
Legal Pluralism and Unofficial Law 21 [Woodman, “Ideological Combat”].
18
See generally Jacques Vanderlinden, "Le Pluralisme Juridique" in John Gilissen, ed, Le Pluralisme
Juridique : Études Publiées sous la Direction de John Gilissen (Bruxelles: Editions de l'Université de
Bruxelles, 1972).
8
pluralism within the state. Gordon Woodman is perhaps most important since he
critiqued the resistance of several legal pluralists to the study of legal pluralism within the
state. For Woodman, to assert that legal pluralism can exist within the state does not
necessarily mean that there is no legal pluralism outside of the state. 19
In order to show the correlation between the lack of obedience and the
coexistence of authority-claiming institutions, I find support in authors who have devoted
several studies to the idea of political authority and to the question of whether obedience
must follow from it. I build my argument on, among others, Joseph Raz, 20 A. John
Simmons, 21 H.L.A. Hart, 22 and Leslie Green. 23 Among these authors, some were more
relevant than others. In particular, I support my arguments using Leslie Green’s work
since he establishes an important connection between political theorists and social
scientists who have worked on the notion of authority. Green introduces the element of
the subject’s recognition of authority as a necessary element for a legitimate authority to
exist. Also, A. John Simmons was significant for tracing a similarity between
disobedience and mere compliance as a species of the lack of obedience. Simmons
carefully separates an act of obedience to a command from that of compliance with it.
One obeys based on the source of the command; one complies with it for other type of
reasons.
I build my argument on the correlation between the coexistence of authority-
claiming institutions and the lack of obedience within the state on the different
19
See generally Woodman, "Ideological Combat and Legal Observation", supra note 17.
20
See generally Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1988).
21
See generally Christopher Heath Wellman & A. John Simmons eds, Is there a Duty to Obey the Law?
(Cambridge: Cambridge University Press, 2005).
22
See generally H.L.A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory (New
York: Oxford University Press, 1982) [Hart, Essays on Bentham].
23
See especially Leslie Green, The Authority of the State (New York: Oxford University Press, 1988).
9
conceptions of the rule of law that state institutions can affirm. Brian Tamanaha 24 guides
me with his distinction between the formal and the substantive rule of law. David
Dyzenhaus 25 and Ronald Dworkin 26 illuminate my understanding of a substantive
concept of the rule of law. Finally, A. V. Dicey 27 and Joseph Raz 28 help with the idea of a
formal rule of law.
Regarding the notion of dialogue and the appropriate use of it, I develop my
argument drawing on two groups of authors. First, I base my construction of the
constitutive elements of dialogue on dialogue theorists such as Martin Buber, 29 Dimitri
Nikulin 30 and David Bohm. 31 Second, I base my critical analysis of the concept of
dialogue within the state on, among others, Peter Hogg and Allison Bushell, 32 Kent
Roach, 33 and Mary Liston. 34 I support the feasibility of this dialogue with Janet Hiebert’s
theory of coordinate construction and on Kent Roach’s argument regarding the
constitutional-design-dependent feasibility of dialogue. 35
24
See generally Brian Z. Tamanaha, On the Rule of Law : History, Politics, Theory (Cambridge:
Cambridge University Press, 2004) [Tamanaha, On the Rule of Law].
25
See generally David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (New York:
Cambridge University Press, 2006) [Dyzenhaus, The Constitution of Law].
26
See generally Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press, 1985).
27
See A.V. Dicey, Introduction to the Study of the Law of the Constitution, Seventh ed (London:
Macmillan and Co., Limited, 1908) [Dicey, Introduction to the Study].
28
See especially Joseph Raz, The Authority of Law, Second ed (New York: Oxford University Press, 2009).
29
See e.g. Martin Buber, I and Thou (New York: Charles Scribner's Sons, 1970).
30
See generally Dimitri Nikulin, On Dialogue (Lanham, Maryland: Lexington Books, 2006).
31
See generally David Bohm, On Dialogue (London, New York: Routledge, 1996).
32
See especially Peter W. Hogg & Allison A. Bushell, "The Charter Dialogue Between Courts and
Legislatures (Or Perhaps The Charter of Rights Isn't Such A Bad thing After All)" (1997) 35:1 Osgoode
Hall Law Journal 75 [Hogg & Bushell, “The Charter Dialogue”].
33
See especially Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue
(Toronto: Irwin Law, 2001) [Roach, The Supreme Court on Trial].
34
See Mary Ann Catherine Liston, Honest Counsel: Institutional Dialogue and the Canadian Rule of Law
(Doctor of Philosophy Thesis, University of Toronto Political Science Department, 2007) [unpublished]
[Liston, Honest Counsel].
35
See e.g. Kent Roach, "Sharpening the Dialogue Debate: The Next Decade of Scholarship" (2007) 45:1
Osgoode Hall Law Journal 169 [Roach, “Sharpening the Dialogue Debate”].
10
Methodology
A curious reader will not be satisfied reading my arguments without knowing how I came
to develop them. A methodological explanation is thus necessary. Once I decided to
distance myself from my original ideas on the superior place of the Constitutional Court,
I began to view judicial decisions touching the subject of guardianship review of judicial
decisions as data that could explain the reasons for the controversy among the Colombian
high courts. From this perspective, I do not read cases to determine whether they were
correctly decided. I read them, instead, as if they were literary texts. I was highly
influenced by authors who perform a discourse analysis within the law. Authors such as
James Boyd White 36 and Marianne Constable 37 provided examples of a careful reading of
legal documents as a central method for legal research. They examine words and silences
within legal documents such as judicial decisions, statutes and legal treatises to determine
what legal actors understand as law and what type of world these actors construct with
their discourse. In Chapter I, I depict the controversy among high courts using, as closely
as possible, the words that these institutions have used in their judicial decisions
regarding guardianship judicial review of judicial decisions. I analyse these words as
supporting evidence for the existence of an example of legal pluralism within the
Colombian State and, in particular, as evidence of the coexistence between disobedience
and an authority-claiming-based discourse used by the Colombian high courts.
Along the lines of discourse analysis, I conduct a careful study of dialogue as a
metaphor that has been widely used in the context of constitutional law. George Lakoff
36
See generally James Boyd White, Justice as Translation: An Essay in Cultural and Legal Criticism
(Chicago: The University of Chicago Press, 1990).
37
See e.g. Marianne Constable, The law of the other : the Mixed Jury and Changing Conceptions of
Citizenship, Law, and Knowledge (Chicago: University of Chicago Press, 1994).
11
and Mark Johnson’s 38 study of the relevance of metaphors that we use in our lives
inspired me to pay close attention to this metaphor.
My research project aims to provide a conceptual framework to explain a complex
phenomenon. Due to the conceptual focus of my research, a reader can measure its
validity by how well it explains the phenomenon under study.
I begin with a theoretical explanation for the Colombian high courts’ conflict in
light of legal pluralism. Second, I establish the constitutive elements of SLP and make
their relationship to each other explicit. Finally, I explore the possibility of the existence
of dialogue between coexisting authority-claiming institutions. By explaining how such
dialogue is possible, I pave the way for the conclusion that inter-institutional dialogue
may be a possible approach to situations where SLP exists.
In order to develop a comprehensive account of the subject matter, my research
follows a pendular movement. It moves from particular cases to general concepts, and
back again. Accordingly, it oscillates between induction and deduction. As an example of
the first movement, I depict the facts of my phenomenon through inductive reasoning. I
read the holdings of the high courts’ cases on guardianship review of judicial decisions as
specific observations and, from their common denominator, I elaborate the general
position that each of the high courts holds on such review. Also, the concepts of SLP,
authority, obedience, rule of law and dialogue are built in an inductive way. I determine
the constitutive elements for these central concepts by finding common denominators in
the literature on legal pluralism, within and outside of the state, political authority,
obedience and dialogue. For instance, there is a common agreement among dialogue
38
See generally George Lakoff & Mark Johnson, Metaphors we Live by (Chicago: The University of
Chicago Press, 2003).
12
theorists on the fact that dialogue necessarily implies equal hierarchal status among all
dialogue participants. Thus, I include equal hierarchal status as a constitutive element of
the concept of dialogue. Also, the majority of political theorists hold that obedience to a
command is based on the source of the command. Therefore, I list this source-based
element as constitutive of the concept of obedience. Once this inductive argument is
made, I deduce a number of aspects from the newly stated concepts.
First, I consider the Colombian controversy among high courts as an example of
legal pluralism. Since the Colombian example constitutes a species of legal pluralism, the
legal pluralist scholarship helps to explain the form of authority-claiming interaction that
exists among the high courts. Moreover, by elaborating a concept of dialogue and
analysing the possibility of dialogue among authority-claiming institutions that constitute
a scenario of legal pluralism, I argue that dialogue may be possible in Colombia.
From the general, I go back to the specifics to show how the conceptual
framework I have developed accounts for various fine nuances presented by the
Colombian case. For example, it is the notorious disobedience by the high courts in the
Colombian example that leads me to study whether there is a correlation between
coexistence of authority-claiming institutions and the lack of obedience. Moreover, it is
the Colombian example that leads me to develop a concept of dialogue. On this occasion,
however, dialogue, as a missing feature of the example, leads me to the construction of
my conceptual framework.
To build a theory of dialogue, I use the same method of constitutive elements
determined by common denominators of the literature on the topic. This time,
nonetheless, to test the theory by confronting it with my case was impossible because
13
dialogue is absent from the Colombian case. Nevertheless, by looking at the Colombian
constitutional concept of harmonic collaboration, I test the hypothetical explanatory
capacity of the concept of dialogue in the Colombian example.
A final observation on interdisciplinarity: in Chapters IV and V, instead of
focusing solely on legal theory, I explore political theory scholarship on authority and the
rule of law. Readers coming from a law background might wonder about my use of
interdisciplinarity in this context. I focus on political theory due to its rigorous treatment
of the concept of authority and the rule of law. Although it is common to find numerous
law texts that use the concept authority, and several more that argue that all authority
must be legitimate, legal literature on the concept of authority is scare. Rather than
exploring what authority is, legal scholars focus on how this authority should operate in
order to be legitimate.
The Colombian Case as a Threefold Story
My work can be read as a threefold story. In Chapter I, I narrate the story of the
Colombian high courts’ controversy over guardianship judicial review of judicial
decisions in the high courts’ own words. I present the arguments that the Constitutional
Court, on the one hand, and the Supreme Court of Justice and the Council of State, on the
other, have brought for and against this type of review. I demonstrate that, based on an
exclusive claim of authority, the Constitutional Court embraces this form of review while
the other two high courts reject it.
Chapters II to V analyse the Colombian story in other words. In order to do so, I
use the perspective of SLP. In Chapter II, I analyse the constitutive and complementary
14
elements of SLP. I argue that SLP: 1) necessarily takes place within the governmental
structure of the state; 2) includes two or more public institutions within that state; 3) lacks
an agreed-upon superior norm or an agreed-upon superior public institution with the last
word on the interpretation of an alleged superior norm capable of distributing final (legal)
decision-making power among the contending public bodies; 4) involves a tension
between or among public institutions over decision-making responsibilities regarding a
single, particular subject matter; and 5) in some cases includes an underlying ideological
difference between or among the public institutions in tension. Where this ideological
difference exists, the tension that pluralism involves is likely to be more severe than it is
in cases that lack this difference.
Chapter III considers how the Colombian example meets the first three essential
elements of SLP and is reinforced by the existence of the complementary element. That
is, the Colombian example is located exclusively within the state, involves two or more
state institutions, and features an absence of a commonly recognised hierarchical superior
to resolve the conflict, elements that are reinforced by the existence of an ideological
conflict among the high courts.
In Chapter IV, I go back to a general theory of legal pluralism and establish the
correlation between the coexistence of legal pluralism and the lack of obedience. In order
to make this correlation explicit, I subdivide the lack of obedience into disobedience and
mere compliance. I argue that whenever there is either disobedience or mere compliance
there will be coexistence of authority-claiming institutions, and vice versa.
15
In Chapter V, I argue that this is also the case in SLP, and in the Colombian
example in particular. The existence of this correlation in the Colombian example shows
how disobedience can be manifested through several degrees of intensity.
In Chapters VI and VII, I explore whether the existence of disobedience as
correlative to the Colombian example of SLP is the only possible story that one can tell. I
argue that the dynamic of conflict that has so far prevailed is not necessarily the end of
the story. In Chapter VI, I discuss the possibility of having institutional dialogue between
or among authorities and the necessary conditions for such possibility. Finally, in Chapter
VII, I argue that the Colombian example of SLP, despite the difficulties provided by the
Kelsenian concept of law, has all the necessary elements of inter-institutional dialogue.
Despite being envisioned as a threefold story, this thesis can be read in diverse
ways. A reader who is mainly interested in the Colombian high courts’ controversy
should read Chapters I, III, V, second part, and VII. A reader who wants to find a novel
approach to SLP should read Chapters II, IV, V, first part, and VI. Finally, a reader who
wants to see how theory mixes with practise should read the thesis as a whole. SLP and
the Colombian example under study illuminate and nourish each other.
And yet, within the different stories I tell, a reader will not find an answer to the
question of which court should have the final say on the issue. Nor do I address the
consequences for the parties that follow from the controversy among the high courts.
That is to say, I will not explore the question of which the most beneficial option for the
parties to the process is: giving one court the last say; leaving the high courts to
constantly debate over which one has authority over the other; or recommending an
institutional dialogue between the Constitutional Court and the Supreme Court or the
16
Council of State on the private or administrative law subject matter under study. This
aspect, although interesting, is not part of my inquiry. Nor is it necessary for me to
address these questions as my purpose is just to draw on the Colombian example to
elaborate a conceptual framework capable of explaining SLP while holding out the
promise of dialogue.
17
CHAPTER I
THE STORY IN THEIR OWN WORDS
1.1 Introduction
Chapter I presents the historical and normative background necessary to understand the
current interaction among three high courts in Colombia: the Constitutional Court, the
Supreme Court of Justice, and the Council of State. 39 First, I present the structure of the
judiciary prior to the 1991 Constitution. I then describe the creation of the Constitutional
Court in 1991 along with the creation of the guardianship action, a form of judicial action
introduced to protect fundamental rights. Third, I depict the introduction of judicial
review of judicial decisions through guardianship actions and provide the necessary
procedural background to understand the functioning of these actions. Finally, I describe
the conflicts that judicial review has caused among the abovementioned three high courts.
I present the conflict through an imaginary interview on the subject of judicial review of
judicial decisions with each of the three high courts.
1.2 Colombia’s Judicial Structure
For more than one hundred years, Colombia was governed under the 1886 Constitution.
Two high courts constituted the apex of the judiciary during this era, the Supreme Court
39
In addition to these three high courts, according to the 1991 Constitution, Title X, Chapter VII, Colombia
also has the Superior Council of the Judiciary (“Council”). This Council is in charge of the distribution of
resources within the judiciary, the resolution of judicial clashes over jurisdiction, and the judgment of
judges’ disciplinary behaviour. This Council, according to the 1991 Constitution, is part of the high courts
of the judiciary, but does not hear administrative, ordinary or constitutional law cases as a judge of last
resort. Although the Disciplinary Chamber of the Council acts also as guardianship judge, its
confrontations with the Constitutional Court have been minimal. This is why I will limit my study to the
three abovementioned high courts.
18
of Justice, with jurisdiction over “ordinary” matters (i.e. labour, criminal, family and
private law), and the Council of State, with jurisdiction over administrative law. The
jurisdiction of the Supreme Court of Justice came to be known literally as “ordinary
jurisdiction,” whereas the jurisdiction of the Council of State came to be known as
“administrative jurisdiction.” Constitutional review of statutes was very occasionally
conducted by one of the Supreme Court of Justice’s chambers – specifically, the
Constitutional Chamber - while equally infrequent constitutional review of regulatory
decrees fell to one of the Council of State’s chambers – specifically, the Third Chamber.
There were subdivisions within each of the high courts. The Supreme Court of
Justice was divided into four chambers: Civil, Labour, Criminal and Constitutional. The
Council of State was divided into five chambers: the First, the Second, the Third, the
Fourth, and the Fifth chambers. Each of the high courts had several subordinated
tribunals in each of Colombia’s territorial departments (roughly the equivalent
proportional size of Canadian provinces or US states, but without legislative power).
Each tribunal was divided into the same specialised chambers as the Council of State and
the Supreme Court of Justice, with one exception. The Constitutional Chamber existed
only within the Supreme Court of Justice. Each tribunal of the ordinary jurisdiction had
several subordinate circuit judges to deal with labour, civil, and criminal matters. Every
circuit judge had a number of subordinate judges at the municipal level. At the municipal
level some judges were judges in these four same areas and some other judges were
judges of mixed jurisdiction. Municipal judges formed the bottom of the hierarchy. From
top to bottom, then, the judicial hierarchy in Colombia until 1991 was: (1) the Supreme
19
Court of Justice and Council of State, (2) departmental tribunals, (3) circuit judges, and,
finally, (4) municipal judges.
The two high courts did not have common responsibilities. On occasions, there
was some overlapping of jurisdiction between the Supreme Court of Justice and the
Council of State regarding the constitutional review of regulatory decrees with statutory
status. Thus, the 1886 Constitution did not play an important role in the everyday
judgments of courts from either the ordinary or the administrative jurisdiction.40
As I explained in the introduction, as a result of the 1991 Colombian
constitutional reforms, four main changes were entrenched in Colombian constitutional
law: 1) the positivisation of fundamental rights, 2) the establishment of a guardianship
action to protect such rights, 3) the creation of the Constitutional Court, and 4) the
authorisation of every judge and justice in the country, from either the ordinary or the
administrative jurisdiction, to act as a guardianship judge. That is to say, every judge is
simultaneously a judge of his or her particular jurisdiction (ordinary or administrative)
and a constitutional judge competent to adjudicate matters involving fundamental rights.
The highest authority of constitutional jurisdiction is the Constitutional Court and, as
such, it can review any guardianship judgment at its discretion. 41
As stated in the introduction, the Constitutional Court has held that judicial
decisions are susceptible to guardianship review. Nevertheless, the Supreme Court of
Justice and the Council of State have almost always resisted engaging in or being
questioned in their judicial decisions by this form of review.
40
For a better understanding of the Colombian judiciary’s structure prior to 1991, see figure 1 at 21
41
For a map of the Colombian judiciary’s structure after 1991, see figure 2 at 22. As such, the
Constitutional Court can review even guardianship judgments delivered by the SCJ and the COS acting as
guardianship judges.
20
Figure 1: Structure of the Colombian judiciary prior to 1991. There was no relationship between ordinary and the administrative
jurisdiction except for a few cases of overlapping jurisdiction of the Supreme Court’s Constitutional Chamber and the Council of State
over the constitutional review of some regulatory decrees with statutory status.
21
Figure 2: Structure of the Colombian judiciary after 1991. The dotted area represents the universal constitutional jurisdiction. The
acronym GJ stands for guardianship judge.
22
Since after 1991, all Colombian judges became guardianship judges in addition to
their specialised jurisdictional function; all Colombian judges hold constitutional
jurisdiction - as is designated by the dotted background - and decide on fundamental
constitutional rights related issues. Moreover, from 1991 to 2000, while acting as a
guardianship judge, any judge could review the judgments of any other judge, either from
its own jurisdiction or from a different jurisdiction (e.g. an administrative judge could
review a judgment of a criminal, commerce or labour judge, no matter her hierarchy in
the ordinary jurisdiction system). After 2000, any judge of superior functional hierarchy
may review the judgments of any other inferior functional judge when acting as a
guardianship judge. Superior judges of ordinary jurisdiction can review inferior judges of
ordinary jurisdiction and superior judges of administrative jurisdiction can review inferior
judges of administrative jurisdiction through a guardianship action. If a guardianship
action is brought against the Supreme Court of Justice or the Council of State, a chamber
of the corresponding court other than the chamber that acts as the defendant can review
the judgment. For instance, the Supreme Court of Justice, Criminal Chamber, can review
the judgments of the Supreme Court, Civil Chamber.
The Constitutional Court’s Chambers of Review, as their name signals, can
review any guardianship judgment through a discretionary selection of cases.
Accordingly, any guardianship judgment issued by a court of ordinary or administrative
jurisdiction, no matter the hierarchical position of the judge that delivered the decision,
can be reviewed by any of the Constitutional Court’s chambers of review. 42
42
In 2008, a procedural change was enacted. It is the duty of each Constitutional Court chamber of review
that has to deliver the judgment on a guardianship action against a judicial decision to bring the case to the
Constitutional Court, Full Chamber. The Full Chamber decides whether it or the chamber of review will
23
Consequently, if there is a review of an ordinary or an administrative judgment through a
guardianship judgment, the Constitutional Court could review it.
With the assertion of many arguments for and against constitutional review of
judicial decisions, the Colombian high courts have figured in a story that reveals a tense
coexistence of authority-claiming institutions. This tense coexistence of authority-
claiming institutions occurs along with the existence of diverse understandings of certain
legal concepts. The main legal concepts at issue are: the jurisdictional limits of each of
the high courts, the role of judges in relation to the rule of law, res judicata, the place and
effect of a written constitution in legal order, the relative importance of procedural versus
substantive law, and judicial independence.
I now convey the story of the coexistence of authority-claimant institutions and
diverse understandings of legal concepts using the high courts’ own words. My account is
based on a close reading of the high courts’ judgments which relate to review of judicial
decisions on constitutional grounds. The content of this chapter is somewhat
unconventional, but will facilitate a ready grasp of the justices’ arguments. I will ask the
courts questions as if I were interviewing the dramatic personae of a story, and then I will
compose their answers using, as closely as an accurate translation from Spanish to
English allows, their own statements. The questions I will pose are not arbitrarily
determined, I have taken them from the leading cases in which, implicitly or explicitly,
they arise. To achieve greater intimacy with each of my characters, the interviews shall
take place separately. I shall first interview the Colombian Constitutional Court (“Ms.
decide on the case. See Colombian Constitutional Court bylaws (Agreement 05/92), art. 54A, as amended
by Agreement 01, of December 3rd, 2008.
24
CC”), then the Colombian Supreme Court of Justice (“Ms. SCJ”), and finally the
Colombian Council of State (“Mr. COS”).
The decision to see these courts as dramatic personae is motivated in part by how
they are understood in the legal culture in which they operate. In Colombia, people refer
to the high courts as though they were individuals. Courts, not justice X or Y, decide,
argue, deny protection, order compliance with constitutional norms, refuse to comply
with such orders, and are widely perceived to disparage and insult one another. Within
this dialogue about the high courts, the SCJ and the CC are referred to as female
characters and the COS as a male character. 43 The cartoons in figures 3 and 4 below
represent how the courts are publicly perceived as bickering characters.
Figure 3: The Supreme Court of Justice and the Constitutional Court confront each other
on the possibility of guardianship review of judicial decisions. 44
43
People refer to the Constitutional Court and the Supreme Court as la and to the COS as el.
44
“Las Cortes se Enfrentan por Tutela Contra Sentencias” Ámbito Jurídico (23 February to 4 March, 2004),
Bogota, at 1 [translated by the author].
25
Figure 4: The Supreme Court of Justice and the Constitutional Court threat the judiciary´s
balance due to the dispute over guardianship review of judicial decisions. 45
The analysis of certain expressions used by the high courts that is contained in
further chapters of my thesis justifies the choice of writing the story based on the high
courts’ own words. The words, structure, tone and silences of the selected judicial
decisions contribute to an understanding of the arguments and commitments of each
court, and help to guide how those arguments and commitments might be modified. 46
When citing judicial decisions, I will not recount the facts of the particular cases involved
unless they are relevant to understanding the high court’s position regarding a
45
“Posiciones Irreconciliables?” Ámbito Jurídico (25 March 2002 to 14 April 2002), Bogotá, No. 101, at 9
[translated by the author].
46
Although I will use a translation as close as possible to the original judgment which may be similar to a
quotation, I will not pinpoint the page where the expression I translate and include in my thesis is located.
This is because in Colombia judgments do not have a standard form of citation. Judgments are available
online or in hard copy at the high courts’ rapporteur’s office, but they are not cited by their pages. In
Colombia, when one cites a judgment, including citations made by the high courts, even if it is a textual
citation, one does not cite the exact page where the quotation comes from. What one cites it is merely the
reference to the case, but not the place within the judgment from which the quotation was taken.
26
guardianship action against judicial decisions. There are two primary reasons for omitting
references to the facts of each case. First, this information can divert the reader’s
attention from the controversy over guardianship action against judicial decisions
(hereinafter “GAJD”) - the issue under analysis - since judicial decisions under review
can deal with any type of administrative or ordinary law subject matter. Second, I do not
attempt to determine whether the case was rightly decided either by the ordinary, the
administrative or the constitutional judge, but rather examine why the courts decided
either to accept or reject judicial review of judicial decisions.
Finally, to describe the position of the high courts regarding judicial review of
judicial decisions, I study the guardianship decisions of the high courts from 1992 to
2009. Guardianship review of judicial decisions began in 1997. In 2009, seven new
Justices were appointed to the Constitutional Court, which considerably changed the
composition of the Court. In this same year, the Constitutional Court delivered a
Judgment of Unification on the subject matter of judicial review of judicial decisions in
Vives Lacouture v. Supreme Court of Justice, Criminal Chamber, judgment SU-811-09.
By including this Judgment of Unification, I will present the position of the high courts at
the time of writing.
The relationship between Ms. CC, on the one hand, and Ms. SCJ and Mr. COS on
the other, regarding the legality of GAJD has been described by scholars and the media as
irreconcilable 47 and antagonistic, 48 a “train wreck,” 49 a conflict, 50 and a constant friction
47
“Posiciones Irreconciliables?” Ámbito Jurídico (25 March 2002 to 14 April 2002), Bogotá, No. 101, at
1[translated by the author].
48
“Uribe Paró al Presidente de la Corte” El Tiempo (26 September 2006), online:
<http://www.eltiempo.com/archivo/documento/MAM-2216913> [translated by the author].
49
Ámbito Jurídico (23 October 2006 to 5 November 2006). See also García Villegas, Mauricio, “Choque
de Interpretaciones” El Tiempo (03, October, 2006); "‘Deben Acabarse los Choques de Trenes’: Pinilla",
27
between the high courts. 51 While speaking with the high courts, I will pose questions that
help determine what this conflict is about and what reasons are presented in defence of
each side. With these inquiries, I also aim to determine whether there has always been
such a tension among Colombian high courts regarding GAJD—in particular, concerning
GAJD that challenge decisions of the Supreme Court of Justice and the Council of State
themselves. Before assessing a tentative analysis and constructive replies to these
inquiries in subsequent chapters, I now invite the reader to listen to the story in the high
courts’ own words.
1.3 The Interviews
I arrive at the Colombian Palace of Justice, where my three interviewees live together
but are separated by several walls. The palace is located at the very heart of Bogota,
Colombia’s capital. As with every palace, the one my interviewees inhabit is surrounded
by security measures and apparatuses. It is enclosed and inaccessible to the public. After
several security searches, I am allowed in. I decide first to interview Ms. CC, the
youngest of the high courts.
online: La República
<http://www.eleccionvisible.com/index.php?option=com_content&view=article&id=286:qdeben-acabarse-
los-choques-de-trenesq-pinilla-&catid=3:prensa&Itemid=24>. (for the inclusion of the concept of
collision); and Andrés Caribello, “Para Desactivar el ‘Choque de Trenes’, Presidente de Corte
Constitucional Revela una Propuesta” (2009) online: El Tiempo <http://www.eltiempo.com/justicia/2007-
10-15/ARTICULO-WEB-NOTA_INTERIOR-3766572.html>.
50
Botero Marino, Catalina, Jaramillo & Juan Fernando. “El Conflicto de las Altas Cortes Colombianas en
Torno a la Tutela Contra Sentencias” (2006) 12 Foro Constitucional Iberoamericano 42, at 62-63[translated
by the author].
51
“Fricción entre el Consejo de Estado y la Corte Constitucional” El Tiempo (24, September, 2006),
28
1.3.1 The story in Ms. CC’s words
Nelcy (hereinafter N): Ms. CC, could you please explain to me your position
regarding GAJD from 1992 to date?
CC: From 1993 to date, I have supported GAJD, but from 1992 through much of
1993 I was a very young woman with no clear position. 52 I hesitated about whether
GAJD ought to exist or not, as I will explain to you in a moment.
In one of my first public opinions regarding GAJD, I said that the 1991
Constitution established what we may think of as a “social” rule of law – a legal order in
which fundamental rights are substantive rights which must take precedence over
procedural rules in the event of a conflict between the two. 53 To privilege substantive
law signals, indeed, the end of the administration of justice as it is set out in Article 228
of the 1991 Constitution. 54 For me, to deny GAJD would inevitably lead to the
proceduralisation of constitutional law, 55 which is contrary to constitutional mandates
that will lead to more flexible procedures. 56
Moreover, I argued that, in the search for the protection of fundamental rights, all
judicial decisions must be subject to appeal through guardianship actions. With this
52
The Constitutional Court had four main periods of thought regarding GAJD: a) from May 1992 to
October 1992, supporting GAJD; b) from October 1992 to April 1993, viewing GAJD as unconstitutional;
c) from April 1993 to 1999, supporting GAJD when the judicial decision under review constitutes what the
Constitutional Court denominates as a de facto; and d) from 1999 to date, combining the use of the concept
of a de facto act with review of judicial decisions when these decisions constitute a fundamental rights
violation. These different positions will be fully explained below.
53
T-006-92 CC [translated by the author].
54
55
T-413-92 CC [translated by the author]. In Colombia, people perceive judges as formalist functionaries
that focus more on compliance with procedural form than on the protection of substantive rights,
constitutional fundamental rights included. The negative tone of the assertion related to the
proceduralisation of constitutional law makes sense in this context.
56
Ibid. To constitutionalise procedure can be understood as making procedure more flexible and informal
in order to protect substantive rights claims involved in the procedure.
29
judicial guarantee, I thought there would be real protection of citizens’ fundamental
rights. 57 After all, the overarching purpose of public authorities is to guarantee citizens’
effective enjoyment of their rights. 58 The principle of effectiveness of rights and
guarantees (1991 Constitution, Art. 2) is essential to the concept of a social rule of law in
which the state’s mission and the justification of the attribution of public authority is
to enable formal or theoretical rights to become actual and substantive rights capable of
protecting the interests they were enshrined to protect. 59
N: But what about the separation of powers? Wasn’t the judiciary supposed
to be able to adjudicate without interference, and wouldn’t GAJD constitute
interference?
CC: Ms. SCJ and Mr. COS did not want to be reviewed, but Article 86 of the
1991 Constitution does not exclude any public authority from being controlled in its acts
through guardianship actions. 60 To exercise their respective jurisdictions, Ms. CSJ and
Mr. COS are vested with public authority; thus, guardianship actions may proceed against
them. 61
If the guardianship action could not be brought against them, they would be
immune and placed above the 1991 Constitution, our supreme limit and the highest of all
legal norms! 62 In other words, to assert that final judgments of ordinary courts are
unchallengeable, even if they violate fundamental rights, would be to accept that the 1991
Constitution does not bind judges and would convey limitless power to them, a power
57
58
Ibid.
59
T-223-92 CC [emphasis in original] [translated by the author].
60
T-006-92 CC [translated by the author]. See T-223-92 CC.
61
62
Ibid.
30
capable of amending the 1991 Constitution. 63 Our social rule of law does not tolerate this
situation. 64
Under the 1991 Constitution, the respect of constitutionally entrenched rights 65
determines the validity of public authorities’ acts. The validity of public action does not
depend solely on the powers bestowed on public authorities under the formal
constitution. 66 Otherwise, public authorities will become feudal territories or small
independent republics, sovereign and isolated, preoccupied solely by the private ends of
the officials responsible for exercising those powers. 67
Moreover, I found that Ms. SCJ and Mr. COS, with their rigid understanding of
the separation of powers doctrine, wanted to establish as many interpretations of the 1991
Constitution as there are public authorities. For me, that idea would dilute the legal order
beyond recognition. 68 That is to say, if different legal institutions do not have a shared
final consensus about the supremacy of the 1991 Constitution vis-à-vis any other
manifestation of constituted powers, the unity and continuity of the legal system is
endangered and at risk of dissolution. 69
N: All public authorities are subject to the 1991 Constitution. But how did
you explain that one judicial authority reviews another judicial authority? Weren’t
you, Ms. SCJ, and Mr. COS at the same level in the judicial hierarchy?
63
T-223-92 CC [translated by the author]. SeeT-006-92 CC.
64
65
Ibid.
66
T-006-92 CC [emphasis in original] [translated by the author]. With the formal 1991 Constitution, the
CC refers to the chapters that deal with the distribution of powers among the state’s institutions.
67
T-006-92 CC [translated by the author]. See also T-223-92 CC. The concept of the existence of feudal
territories if material justice does not trump legal stability will be recalled in SU-478-97 CC.
68
69
31
CC: As you must know, the 1991 Constitution establishes me as the highest
tribunal for Constitutional Jurisdiction (jurisdiction over matters falling within the
scope of the 1991 Constitution) by giving me the authority to “guard the integrity and
supremacy of the Constitution” (1991 Constitution Art. 241). My jurisdiction to review
guardianship actions was a manifestation of my position as the highest constitutional
tribunal. This jurisdiction responded to the need to have a unified interpretation of
fundamental rights, 70 and to prevent constituted powers 71 from violating the 1991
Constitution. 72 Moreover, for me, it was clear that the issue of respect for hierarchy was
of little weight in a case involving the violation of a fundamental right which, as the 1991
Constitution mandates, must have immediate protection. 73
N: But wasn’t Ms. SCJ deciding controversies among private individuals?
Are private law disputes to be resolved on constitutional grounds?
CC: When I had just started my career in the judiciary, I openly disagreed with
this so-called public/private distinction. For me, it was clear that if “private” violations of
constitutional rights were not punished by the judge from whom one sought protection,
the judge would be in breach of his or her constitutional duty as a protector and promoter
of peaceful coexistence under the social rule of law. 74 In my opinion, judges may not
hide behind the judicial process of ordinary jurisdiction to elude their responsibilities vis-
70
T-006-92 CC [emphasis in original] [translated by the author]. See T-223-92 CC.
71
The expression “constituted powers” stands here as opposite from “constituent powers.” Constituted
powers are the public authorities created by the Constitutional National Assembly when this Assembly
enacted the 1991 Constitution.
72
73
T-413-92 CC [translated by the author] [underlining in original].
74
T-006-92 CC [translated by the author]. With the latter violation, the Constitutional Court is referring to
a violation akin to what American lawyers might call a violation of the right to substantive due process.
32
à-vis the respect of fundamental rights. 75 If Ms. SCJ were to judge private matters in
which fundamental rights were at stake, she must restrain herself in the exercise of her
jurisdictional function so as not to render herself tantamount to a criminal accomplice in
the commission of a wrong, lest she fall into legal barbarism. 76 Moreover, it appeared to
me that the fact that constitutional principles must guide Ms. SCJ’s interpretation of the
law did not deny the control of legality she is entitled to exercise as a court of cassation.77
This guidance only requires the application of constitutional rules and principles that
must govern Ms. SCJ’s activity. 78
Nevertheless, I was not clear on this point. I simultaneously thought 79 that when
the violation of a constitutional right was analysed during a guardianship action, the
ordinary controversy was not to be reviewed. Only the judge’s behaviour, as reflected in
the court’s decision, when his or her behaviour had violated or threatened to violate a
fundamental right, was subject to review. 80 To go further would violate the principle of
judicial independence (1991 Constitution, Art. 228) and would undermine the
boundaries of the different jurisdictions. 81
N: If Ms. SCJ and Mr. COS’s decisions were reviewable, what was your
position regarding the concept of res judicata?
75
C-543-92 CC, dissenting opinion [translated by the author].
76
77
A court of cassation makes reference to the SCJ in a civil law system. This figure comes from the French
legal term Cour de Cassation. See “French Glossary” Foreign Law Translations, The University of Texas
at Austin, online:
<http://www.utexas.edu/law/academics/centers/transnational/work_new/french/glossary.php > .
78
79
The simultaneity of opinions is due to the issuance of a dissenting opinion.
80
T-006-92 CC, dissenting opinion [translated by the author]. See T-223-92 CC, dissenting opinion.
81
T-006-92 CC, dissenting opinion [translated by the author].
33
CC: I thought that res judicata was not a principle inherent to human beings, as
Ms. SCJ said. Res judicata was a historical construction with statutory but not
constitutional support. 82
In the French Civil Code and the codes inspired by it, res judicata was an act of
imperium, of authority. Thus, when the state decided that some judicial decisions were
definitive and immutable, these decisions represented truth. It seemed to me that Ms.
SCJ was too deeply tied to old concepts of French civil law. 83
Indeed, res judicata is constructed on the precariousness of the secular task of
administration of justice and deals with this condition by immunising judgments. These
decisions, despite being based on something less than the truth (or the whole truth), are
valid and must be obeyed. That is known as res judicata pro veritate habetur. 84
N: Why did you so vehemently attack the concept of res judicata? Did you
have any special value in mind when making these attacks?
CC: Yes, justice. Controversies under judicial review require prompt and pacific
resolution by the state; they must have an end. That is how the state acts vis-à-vis the
demands of legal certainty and social peace. But peace requires that judicial decisions be
just because injustice is the major cause of discontent and suffering that the people
endure. 85
It was abundantly clear to me that the 1991 Constitution not only defended the
concept of order but also stood for the idea of a “just order,” an order that takes account
82
83
Ibid [emphasis in original].
84
T-006-92 CC [translated by the author] [emphasis in original].
85
34
of the country’s social, economic, and political conditions within a social rule of law. 86
To put res judicata before justice was a truculent means inspired by only the blind logic
of power and the thinly concealed attempt to preserve untouched feudal regimes within
the state. 87
N: Ms. CC, at the very beginning of the interview you told me that you
hesitated before fully developing your supportive position regarding GAJD. Could
you explain your initial reluctance?
CC: Despite the assertive tone of my first decisions, a part of me 88 sympathised
with the idea that there must be no GAJD. My reluctance stemmed from the idea that res
judicata – understood as the immutable, nonreviewable, definitive, indisputable and
binding character of final judicial decisions which equals legal truth— 89 must be
protected over all other values in order to achieve legal certainty, which is realistically
the end of law. 90 A part of me concluded that peace and real justice would only be
possible with the legal certainty provided by the certainty of final judicial decisions. 91
The administration of justice cannot oscillate perpetually over provisional and unstable
terrain. The judge’s final word at the end of the procedure is indispensable to consolidate
the idea of justice. 92
86
T-223-92 [translated by the author]. See C-543-92 CC, dissenting opinion.
87
T-006-92 [translated by the author]. See T-474-92 CC. See also C-543-92 CC, dissenting opinion.
88
The Constitutional Court was not unanimous in its first decisions supporting GAJD.
89
C-543-92 CC [translated by the author].
90
91
Ibid. By using the expression “certainty” besides “final judicial decisions,” the Constitutional Court
wants to emphasise that, in its opinion, final judicial decisions imply certainty; see C-543-92 CC.
92
35
Finally, when a citizen, Alvaro Palacios Sanchez, asked me whether the statutory
possibility to bring GAJD was in accordance with the 1991 Constitution, 93 in my
Palacios Sanchez decision, judgment C-543-92 CC, I made a decision based on res
judicata, among other principles, and said that GAJD was unconstitutional. 94
Nonetheless, I would later greatly regret this stance against GAJD. 95
N: When I read the 1991 Constitution, I do not find that res judicata is even
mentioned as a constitutional principle. How did you, as a constitutional guardian,
initially connect the protection of the 1991 Constitution with res judicata?
CC: I determined that res judicata in fact had constitutional support. Indeed, res
judicata’s metapositivist character 96 means that it is implicit within the 1991 Constitution
and the values that inspire and support it. 97
Besides, the principle of res judicata is part of the constitutional fundamental
right to due process that regulates due process of law, even if it is not set out in Article 29
of the 1991 Constitution. From the beginning, every legal process must at some point
come to an end, since the parties cannot be asked to wait indefinitely for a resolution to
93
The 1991 Constitution neither textually accepts judicial review of judicial decisions nor forbids it.
Nonetheless, before the declaration of unconstitutionality of the statutory norm that expressly established
GAJD—judgment C-543-92 CC, hereinafter in the body of the text Palacios Sanchez - the Constitutional
Court had considered GAJD constitutional.
94
C-543-92 CC [translated by the author] (addressing abstract constitutional review of the statutory
provision of guardianship action against judicial decisions: “Article 11. The guardianship action could be
brought at any time except as against the action brought against final judicial decisions, which should be
brought within two months after the final judgment is rendered.”).
According to the plaintiff, the possibility of bringing a lawsuit against a judicial decision was contrary to
the 1991 Constitution because the 1991 Constitution only allowed guardianship actions against
administrative actions. Guardianship actions could not be transformed into a flagrant violation of the
principle of res judicata nor to create a duality of functions between the Constitutional Court and the SCJ.
Based on the plaintiff’s arguments, the majority of the Constitutional Court declared the possibility of
bringing a guardianship action against judicial decisions to be unconstitutional.
95
The C-543-92 CC’s judgment has been, consequently, tacitly partially overruled by the Constitutional
Court, as will later be demonstrated.
96
Metapositivist character means character beyond positivism.
97
36
their dispute. 98 Finality, after due process, is essential to peaceful coexistence because it
signals the crystallisation of justice (Article 2 of the 1991 Constitution). 99 Furthermore,
the common well-being (Article 1 of the 1991 Constitution), represented in the certainty
of judicial decisions, is also protected through res judicata. 100 Lastly, the finality of
judicial procedures promotes access to justice by allowing for new trials to proceed. 101
N: But what about the premise that justice trumps legal stability and res
judicata? Did you change this hierarchy of values?
CC: You are moving too fast. I held by then that the end of each judgment is to
achieve justice. The judge’s process of adjudication – a process based on a syllogism that
has as its major premise the general and abstract rule of the law, as its minor premise the
facts and, as its conclusion, the decision, which becomes binding for those who took part
in the procedure - involves more than a logical operation. This judicial process seeks a
solution that achieves the level of justice that, according to the judge, fits the exigencies
of the 1991 Constitution and the law. 102
N: If judges can err, were GAJD not a proper way to correct judicial
mistakes?
CC: Error can exist, but for a year I held that individual cases had been already
sufficiently argued before different levels of the judiciary; thus, no further review could
be allowed. 103
98
Ibid.
99
Ibid.
100
Ibid.
101
Ibid.
102
103
See C-543-92 CC.
37
Furthermore, with GAJD there would be a duplication of constitutional
judgments. When an ordinary judge decides an ordinary case, he or she is subject to the
law, a concept that includes the 1991 Constitution. When an ordinary judge acting as
guardianship judge reviews an ordinary case, his or her decision is based on the 1991
Constitution. In both cases, the applicable law is the same. 104
Finally, guardianship jurisdiction does not provide conditions for the absence of
judicial error. That is because this jurisdiction is not distributed according to expertise
and the guardianship judge only has ten days to decide the case. 105
N: At the beginning of the interview, you mentioned that Article 86 of the
1991 Constitution stipulates that guardianship actions may be brought against all
public authorities; thus, judges can be “sued” too. Initially, what was your reason to
exclude judges from judicial review?
CC: Do not misunderstand me. Judges are not excluded from the concept of
public authority. On this assumption, they are not exempted from guardianship actions.
But this does not necessarily mean that the guardianship action against their judgment is
valid. For example, there is no legal obstacle restricting guardianship judges from
ordering a judge to make a decision when an unjustified delay has taken place. Also,
there is no legal obstacle for guardianship judges to use the guardianship action against
de facto acts through which the judge disregards or threatens fundamental rights, or to
bring such an action when the judicial decision causes an irreparable harm. In these cases,
104
Ibid.
105
38
one cannot talk about harm to the legal certainty of members of society, but of a
fulfilment of justice’s ends. 106
N: Let’s go back to the interaction between Ms. SCJ and Mr. COS, on the
one hand, and you, on the other. At the very beginning you seemed to be clear on
the fact that GAJD were viable against them, despite some minor hesitation. 107 Why
did you change your mind in 1992 and early on in 1993?
CC: I concluded that the 1991 Constitution did not design the guardianship
action to interfere with pre-existing ordinary procedures. Every judge has different
matters upon which to decide, and the guardianship action was not created to replace
ordinary or specialised procedures, or to be a substitute for judges’ jurisdiction, or to be a
new appellate avenue. The purpose of the guardianship action, expressly defined in
Article 86 of the 1991 Constitution, is nothing more than to provide a person with
effective, real, and subsidiary protection of his or her fundamental rights. 108
Moreover, I said that a guardianship action could not converge with different
judicial procedures since it is not a mechanism that one can choose discretionally to avoid
the action specifically provided by statute. If the plaintiff did not use all the recourses
available in the ordinary procedure, she cannot use the guardianship action to relitigate
the merits of the case since that would let her benefit from her own failure. 109
106
C-543-92 CC [emphasis in original] [translated by the author].
107
In its first judicial decisions, the majority of the Constitutional Court supported GAJD. There were,
nonetheless, some dissenting opinions.
108
109
C-543-92 CC [translated by the author] [emphasis in original]. The principle to which the judgment
makes reference is“nemo auditor proper turpitudinum alegum” (“no one can allege his own fault in his or
her favour”) [translated by the author].
39
N: And what about the fact that it is not possible to separate ordinary
matters from constitutional mandates? What about the protection of the rights-
based constitution over the formal one?
CC: Well, I thought Title VIII of the 1991 Constitution attributed certain judicial
matters to certain judicial organs, and the statutes that regulate this title ought to be
respected.
Guardianship actions cannot be a parallel or substitutive justice system that
devastate and destroy the ordinary jurisdiction established by constitutional mandate.
Rather, they must be coherently harmonised with it; otherwise, GAJD would lead to a
form of chaos not intended by the Constituent Assembly. 110
Also, in my opinion, the principle of judicial autonomy could not be preserved if
judgments were exposed to interference coming from orders of other judges having
different expertise that is foreign to the process statutorily established. 111
N: You mentioned “parallel system” and “chaos” and you related these
notions with GAJD. Could you develop more fully how you linked these ideas?
CC: Coherence is a characteristic of order. It is evident that a legal system,
justified by the imperative of introducing order into the life of society, must be coherent,
so as not to fall into the absurdity of itself becoming the reason for confusion. The
Constituent Assembly would not have established the guardianship action to attack the
ordinary procedures that it made indispensable in Article 29 of the 1991 Constitution. 112
110
111
C-543-92 CC [translated by the author] [emphasis in original].
112
C-543-92 CC [translated by the author] [emphasis in original].
40
The idea of GAJD, I concluded by then, rests on a disarticulated, inharmonic and
anarchic model of review that undermines the 1991 Constitution itself. 113
N: What happened after you declared the statutory norm that regulated
GAJD unconstitutional? Did you regret it? Did you change your mind again?
CC: On several occasions immediately after my Palacios Sanchez decision, I
reconciled my judgments with the declaration of GAJD’s unconstitutionality in Palacios
Sanchez. Consequently, I did not decide on the merits of guardianship actions in my
analysis; instead, in a few cases, I did not permit the guardianship actions to proceed. 114
It was only in 1993 that I partially overruled my Palacios Sanchez decision
through a progressive reading of this judgment. Instead of emphasising that in my
previous judgment I had struck down the norms that allowed GAJD, I started quoting this
little paragraph from Palacios Sanchez:
There is no obstacle to order a judge to make a decision when unjustified

delay has taken place, or to use the guardianship action against de facto
acts through which the judge disregards or threatens fundamental rights or
when the decision causes an irremediable harm. … In these hypotheses, one
cannot talk about harm to legal certainty of members of society, but about a
fulfilment of justice’s ends. 115
I began linking the concept of de facto acts with the protection against undeniable
mistakes and arbitrariness of the judiciary that could be redressed through a guardianship
action.
In 1994, I realised that, indeed, I was very close to the opinion Ms. SCJ once held.
That is why I followed her lucid opinion in which she held that, even if GAJD was
113
114
T-555-92 CC [translated by the author]. See also T-556-92 CC, concurring opinion; T-538-92 CC; and
T-119-93 CC; accord T-147-93 CC.
115
T-079-93 CC [translated by the author]; T-173-93 CC [translated by the author]; T-320-93 CC
[translated by the author]; T-329-96 CC [translated by the author]; and SU-478-97 CC [translated by the
author].
41
declared unconstitutional, guardianship actions could be brought against judicial
decisions that have only the formal appearance of a final judgment. Despite their formal
appearance, these decisions threaten or violate fundamental rights through open
arbitrariness or illegality. For Ms. SCJ, given the conditions that signal intense
abnormality in some judgments, these judicial acts become real de facto acts that neither
deserved to be referred to as judicial decisions nor had such a character for the purposes
of guardianship actions. 116
N: Let’s pause for a second. I see that there is a new concept in your
discourse, “de facto act.” Can you develop it more fully?
CC: Look, an act of a public authority becomes a de facto act that may be subject
to guardianship constitutional control when the agent’s conduct lacks objective legal
support in positive law, is arbitrary, or is subject only to her will or caprice and,
consequently, violates the fundamental rights of the person. 117 Briefly, a de facto act is a
judicial mistake that in an absolute and blatant way separates itself from the mandates
of law. 118 Conversely, judicial errors, as a general rule, do not constitute de facto acts. 119
N: But when I look at the 1991 Constitution, there is no prohibition of de
facto acts. How did you link the proscription of de facto acts with the 1991
Constitution?
116
Judgment of the SCJ acting as guardianship judge, October 7th, 1993 [translated by the author], quoted
in judgment T-231-94 CC. The citation of the SCJ’s judgments is not uniform, not even for the official
rapporteurs of the different chambers that comprise this high court. Therefore, the citation of this high
court’s decisions would be based on data included in the decisions’ heading. The SCJ would be referred as
SCJ. Note that the SCJ will later radically change its position regarding the viability of GAJD.
117
T-079-93 CC [translated by the author]. See also SU-478-97 CC; T-320-93 CC; T-258-94 CC; T-435-94
CC; T-442-94 CC; T-249-95 CC; and T-123-96 CC.
118
T-231-94 CC [emphasis in original] [translated by the author].
119
42
CC: I linked the de facto acts doctrine with the concept of the rule of law, which
is enshrined in the 1991 Constitution. Civil servants, 120 in the exercise of their functions,
are forbidden to act outside the functions attributed to them by the 1991 Constitution or
the law. The social rule of law (1991 Constitution Art. 1), the finalities of the social state
(1991 Constitution Art. 2), and the principle of equal protection before the law (1991
Constitution Art. 13) constitute the constitutional framework of the de facto acts doctrine,
which has as its object the proscription of arbitrary actions by authorities which violate
the fundamental rights of the people. 121
I argued, moreover, that the criterion to evaluate which conduct is based on the
legal order and which conduct is not legal is determined by the ends of the state and is
deontological. The purpose of public authorities is to serve the community (1991
Constitution Art. 123), and to guarantee the effectiveness of constitutionally enshrined
principles, rights and duties (1991 Constitution Art. 2). Furthermore, public authorities
must act in good faith (1991 Constitution Art. 83). 122 In addition, in my opinion, a de
facto act disregards the primacy of inalienable rights of the person (1991 Constitution
Art. 5), the constitutional protection of fundamental rights (1991 Constitution Art. 86),
and the prevalence of substantive law (1991 Constitution Art. 228). 123
N: In 1992 you said that judicial decisions were incontrovertible. Do you,
now, think that they are not?
120
In this passage, the Constitutional Court tacitly includes judges in the category of civil servants without
further justification.
121
122
Ibid. See SU-478-97 CC.
123
43
CC: Not exactly - a de facto act is only a judicial decision in appearance. Then,
when you are questioning it, you are not invalidating a judgment because it is not really a
judicial decision, but rather a de facto one.
Judicial decisions, properly understood, are invulnerable to the guardianship
action since they are different than de facto acts. In the case of a de facto act, under the
form of a judicial decision, the judge who must administer justice disregards the
principles that inspire him or her and abuses his or her judicial autonomy to violate
instead the basic rights of the person. Accordingly, the flagrant and severe violation of
the 1991 Constitution by the judge, even if she attempts to cover itself with the
respectable gown of the judicial decision, can be attacked through a guardianship
action. 124 The nature of a judgment is to render justice. Otherwise, it is not a judgment, 125
as is the case of a de facto act.
N: The notion of res judicata was very important for you when you struck
down GAJD. Is it no longer relevant?
CC: I was not subverting res judicata because I thought that I was not
questioning judgments, strictu sensu, through guardianship actions. Since de facto acts do
not deserve to be seen as judicial decisions, properly speaking, they are not protected by
the non-reviewability standard that comes with a final judicial decision. 126
N: Wasn’t the concept of the de facto act an intrusion into the activities of
judges from the ordinary jurisdiction?
124
125
126
T-368-93 CC [translated by the author]. This judgment was delivered after the partial overruling of the
C-543-92 CC. Nonetheless, the decision preserves a considerable attachment to the respect of res judicata
and legal security. See T-1017-99 CC (arguing that res judicata is not applicable to a decision that does not
study the subject matter of the case); and SU-132-02 CC (arguing that GAJD’s exceptional character
protects res judicata).
44
CC: No. In de facto act cases, the object of the action and of the potential judicial
order is not the litigation under debate, but the act by which a fundamental right is
violated. 127
You must keep in mind, as well, that review of an ordinary judgment in the case
of a de facto act - which does not equal a simple judicial error - is an exception. 128 To
review a judgment in the case of mere interpretative disagreement with the judicial
decision would invade the area exclusively reserved by the 1991 Constitution for the
ordinary judge and would affect judicial autonomy. 129
Moreover, the use of the guardianship action in the case of de facto acts would be
rare since this action is subsidiary. Most cases would be decided and judicial errors –
even grave ones - can be corrected through ordinary jurisdiction exclusively. 130
N: And what about the concept of judicial independence on which you based
your Palacios Sanchez decision regarding GAJD?
CC: I now think that the principle of judicial independence is not exhausted by
preventing outside interference from intruding into the judicial function. This principle
makes reference to the necessary relationship of obedience to the law that the judge must
observe, which is, as the 1991 Constitution states, the source of the judiciary’s powers
and its only constraint. Article 230 of the 1991 Constitution establishes that “judges, in
their decisions, are only subject to the mandate of law.” In other words, judges are
127
128
See T-231-94 CC (for the concept of judicial review as an exception). See also T-435-94 CC (for the
concept of the judicial review exception and non-viability when there is only a judicial error).
129
T-231-94 CC [translated by the author]. See SU-429-98 CC.
130
T-231-94 CC [translated by the author]. See T-258-94 CC (emphasising the notion of subsidiarity of the
guardianship action). See also SU-542-99; and T-435-94 CC (underlining the cassation as an ordinary
resource for protection of fundamental rights).
45
servants of the law. 131 And law must be understood as the juridical order as a whole,
which includes constitutional norms (1991 Constitution Arts. 2 and 4). In the case of a de
facto act, guardianship judges are called on to restore fidelity to law. 132
N: Once you adopted the concept of the de facto act, did you develop the idea
further?
CC: Yes, I did; I held that law empowers judges, but that this power cannot be
misused by a judge to apply mandates not established in the relevant norm. This would
constitute a substantive defect. 133 Also, judges cannot exercise judicial authority outside
of their legal jurisdiction (an organic defect). 134 Similarly, judges cannot apply a norm to
cases where there is no evidence that supports the application of it (a factual defect). 135
Finally, judges cannot act outside of established procedures (a procedural defect). 136 In a
case where the judge substantially lacks power to act or deviates from the given power,
his or her act could no longer be a judicial act. 137
In addition to these defects, judges cannot commit grave substantive defects.
Mere formal control of de facto acts could signify the non-reviewability of absolute
substantive, organic, factual and procedural defects of judicial acts because they are
shaped as legal acts.
131
132
T-231-94 CC [translated by the author]. See SU-478-97 CC; and T-1017-99 CC.
133
E.g. the judge asks the plaintiff, who is looking for the recognition of his pension, for more or different
requirements than those established by the pension law.
134
E.g. a military tribunal decides on a criminal case that, according to the law, must be decided by
ordinary courts of criminal justice.
135
E.g. the judge condemns an ex-public servant for a fault that she clearly did not commit since she had
renounced her job at the time during which the fault was supposedly committed
136
E.g. the judge denies a defendant the possibility to appeal from the trial court’s decision despite the fact
that the defendant presents the motion to appeal within the statutory time frame and her motion to appeal
fulfils all the statutory requirements.
137
46
The rule of law demands more than compliance with the formal effect of its
norms. The rule of law also requires attentiveness to substantive effects. Consequently,
the rule of law requires judges to constantly challenge appearances that may conceal the
effects of arbitrary exercises of power. Arbitrary acts that could achieve formally valid
title can neither remain uncorrected nor trump the 1991 Constitution and fundamental
rights, on pain of violating the prevalence of substantive law (1991 Constitution Art. 228)
and the ends of the state (1991 Constitution Art. 2). 138
I recalled the importance of substantive defects, and not only formal ones, when I
linked the idea of de facto acts with the concept of due process. For me, there is
procedural due process (i.e. the application of procedural norms) that is to be
constitutionalised (1991 Constitution Art. 29). But there is also substantive due process
linked to the reasonability of the judicial decision. 139 Parallel with the inclusion of
substantive due process, I mentioned the violation of constitutional principles as one
example of a de facto act. 140
In later opinions, I established organic, substantive, procedural and factual defects
as parameters to test if a so-called judgment constituted a de facto act. While I started
mentioning this test, my Palacios Sanchez decision regarding the unconstitutionality of
GAJD was almost abandoned in my reasoning. 141 The legal question of my judgments
was no longer if GAJD were viable, but whether the judicial decision under study
138
Ibid.
139
SU-478-97 CC [capitalisation in original] [translated by the author].
140
Ibid.
141
T-538-94 CC [translated by the author]. The first judgment of unification (SU-477-98 CC), rendered by
the Full Chamber of the Constitutional Court, did not mention decision C-543-92 CC, as if silence could
erase what the Constitutional Court had said.
47
materially constituted a de facto act which thereby stripped it of its character as a judicial
decision. 142
N: Apart from the concept of the de facto act, did you analyse the validity of
GAJD under any other concept?
CC: In 1999, I introduced a conceptual change. Instead of emphasising the
existence of a de facto act in order for GAJD to proceed, I studied whether the judicial
decision under review violated a fundamental right. For me, the existence of a de facto
act was just a species of decision that violates a constitutional fundamental right. 143
Furthermore, I held that, if a de facto act did not cause a clear violation of a fundamental
right, GAJD were not viable. 144
I found that other types of violations of fundamental rights made GAJD viable.
For example, disregarding judicial precedent, judicial error due to the violation of
fundamental rights by a public servant other than a judge, 145 interpreting a norm in a
sense contrary to the 1991 Constitution and applying a norm despite its being contrary to
the 1991 Constitution, 146 or deciding a case without any argumentative support. 147 I
realised that, by leaving behind the concept of the de facto act and moving towards the
idea of protection of fundamental rights when analysing the viability of GAJD, I had
moved from an administrative law concept into my constitutional jurisdiction.148
142
143
See SU-542-99 CC.
144
See T-930-04 CC. Accord T-981-04 CC; T-272-05 CC; and T-328-05 CC.
145
See SU-014-01 CC. The Constitutional Court referred to this type of violation of fundamental rights as a
consequential de facto act. This type of defect has also been called induced mistake. See T-606-04 CC.
146
See T-461-03 CC. Accord T-428-04 CC.
147
148
See T-109-05 CC.
48
In 2005, I consolidated my new approach to the viability of GAJD in Sandoval
López, judgment C-590-05 CC. Sandoval López, a Colombian citizen, brought a lawsuit
against a statutory norm that prohibited bringing any judicial action against Ms. SCJ’s
Criminal Chamber’s judgments when she was acting as a court of cassation. I declared
the norm unconstitutional since even Ms. SCJ’s judgments could violate fundamental
rights. According to Article 86 of the 1991 Constitution, citizens can bring a guardianship
action against any public authority that violated her or his fundamental rights, and Ms.
SCJ was a public authority. I emphasised, nonetheless, that the subject matter involved in
the judgment against which GAJD were brought should be of evident constitutional
relevance on pain of entering into topics pertaining to the ordinary judge. 149 Furthermore,
I emphasised the fact that a violation of fundamental rights through a judicial decision
was essential for GAJD to proceed. For me, this violation of fundamental rights could
exist in the case of an organic defect, an absolute procedural defect, a factic defect, a
substantive defect, an induced error, an unreasoned judicial decision, a disobedience of
precedent, and a direct violation of the 1991 Constitution. 150 I held that the notion of the
de facto act had been overcome and that my new perspective included cases where,
although there was no gross violation of the 1991 Constitution, there was an illegitimate
decision that affected fundamental rights. 151 After my Sandoval López decision, I have
been very consistent in the use of my new criteria for GAJD to proceed. 152
149
See C-590-05 CC.
150
Ibid.
151
Ibid.
152
See T-109-05 CC. Accord T-920-05 CC; and SU-811-09 CC (for long citation of C-590-05 CC on the
reasoning and refusal to use the concept of a de facto act). In a similar vein, see T-254-06 CC. Accord T-
070-07 CC; T-117-07 CC; T-118-07 CC; T-428-07 CC; T-838-07 CC; T-853-07 CC; and T-018-08 CC.
49
When I left aside the concept of de facto act and focused more on the presence of
fundamental rights’ violations in order for GAJD to proceed, I still did not see GAJD as
an intrusion. For me, it was clear that Ms. SCJ must determine the interpretation of
statutory law and Mr. COS of administrative law. Nonetheless, it was my function as
judge of last instance to establish the constitutionally binding content regarding
fundamental rights, rights that must be observed by ordinary judges when deciding the
cases under their jurisdiction. 153
Despite my conceptual change, the idea of a de facto act was deeply rooted in me.
Thus, on some occasions, I kept using the concept of the de facto act and the four cases in
which a de facto act exists - substantive, organic, procedural or factic defect existing in a
judicial decision. 154
N: Moving to another topic, when you study GAJD cases, are you more
sensitive to some topics in particular? If so, can you give me an example?
CC: Yes, but I do so following the terms of the 1991 Constitution, which protects
certain types of individuals in particular. For example, according to the 1991
Constitution, children have special protection and this special protection must trump
procedural formalities. 155 In a similar vein, I have held that mentally challenged people
must receive special treatment from judges. 156
153
See C-590-05 CC. See also T-272-05 CC.
154
See SU-132-02 CC; T-082-02 CC; T-254-02 CC; T-836-04 CC; T-748-05 CC; T-516-05 CC; T-167-06
CC; T-851-07 CC; T-230-07 CC; T-231-07 CC; T-358-07 CC; T-391-07 CC; T-808-07 CC; and T-938-07
CC. See also T-779-05 CC including cases of violation of fundamental rights by a judicial decision as if
they were types of de facto acts.
155
T-329-96 CC [translated by the author]. See T-079-93 CC (regarding special protection of children).
156
See T-708-06 CC (where the CC altered the priority which the COS had to decide the case at issue and
ordered the COS to make all the arrangements necessary to decide the case as soon as reasonably
possible).
50
In general, the 1991 Constitution protects defenceless people; thus, they must
have special consideration in the judicial process. If a judge deliberately ignores
balancing the parties’ positions in a case and unjustifiably strengthens the powerful party,
GAJD would proceed. 157 Based on my inclination to balance and protect the interests of
defenceless people, in GAJD cases, I favoured the public servant as an employee instead
of a unit of public administration as an employer, 158 and in several decisions I protected
workers’ rights to pension. 159
In defenceless people’s cases, equity must be applied in favour of the weaker
party. Regarding equity and the prevalence of substantive law, the judge must lessen the
rigidity of procedural requirements and give judicial protection to substantive interests
protected by the law. 160
In accordance with the 1991 Constitution, I was also very sensitive to criminal
cases in which the protection of the accused was at stake. 161 I have held that the
restriction of personal freedom is the most drastic intervention of the state in the
individual’s fundamental rights, particularly in his or her constitutional rights to liberty
and to the free development of his or her personality. Moreover, the presumption of
innocence is a fundamental right. Consequently, the state’s punitive power has been
subjected, through the 1991 Constitution, to stricter and more precise limitations. 162
157
158
See T-295-98 CC.
159
See T-1306-01 CC. Accord SU-120-03 CC; and T-663-03 CC.
160
161
T-006-92 CC [translated by the author]. See T-413-92 CC. Accord T-474-92 CC; and T-173-93 CC.
162
51
Certainly, the accused and even the convicted individual is a party to the process and
should not become a victim of it. 163
N: Do all Colombian judges obey your guardianship decisions? If not, how
do you react to a lack of obedience?
CC: Sadly, disobedience of my judgments, mainly coming from Ms. SCJ and Mr.
COS, has occurred. For example, some Colombian judges, Ms. SCJ and Mr. COS among
them, still think that to be independent is to be free from the authority of precedent. But,
if the precedents I have laid down on the protection of fundamental rights are not
followed, equal protection is arbitrarily violated.164 The character of constitutional norms
is ambiguous. If the judge is subject to the legal order whose apex is the 1991
Constitution, it is imperative that there be only one criterion for the interpretation of the
de facto act doctrine. 165 I am the authorised interpreter of the 1991 Constitution, 166 and
thus in charge of determining the scope of the constitutional norms that judges must
follow.
Some judges refused to follow precedents regarding the concept of the de facto
act when the concept of the de facto act was still clearly binding. 167 Sometimes, judges
paradoxically deny a guardianship protection despite not having analysed the merits of
the GAJD lawsuit 168 because they do not want to follow my precedent. In other instances,
163
164
T-057-97 CC [translated by the author]. Accord T-295-98 CC; SU-1722-00 CC; and SU-1184-01 CC,
(holding disobedience of Constitutional Court constitutional doctrine as de facto act).
165
SU-478-97 CC [translated by the author].
166
167
See T-533-97 CC (the SCJ, Criminal Chamber, acting as guardianship judge, declared that guardianship
actions against judicial decisions were not viable in any case.).
168
See T-057-97 CC (the paradox lies in the fact that a judge cannot deny, as opposed to grant, protection
unless she has studied the merits of the case. If there is not study of the merits, the judge simply does not
leave to proceed.).
52
judges do not follow my “constitutional doctrine” 169 on diverse topics related to the 1991
Constitution. Since I find this disobedience unacceptable, I have declared this
noncompliance a de facto act. 170
Some judges even fail to comply with my orders in particular GAJD cases. 171 In
cases of noncompliance with my GAJD judgments, I have made clear that compliance
with my guardianship orders must be strict in order not to disregard constitutional
supremacy, my function as guardian of the 1991 Constitution, and the end of
guardianship action, which is to protect fundamental rights. Consequently, when
authorities do not comply with my orders through evasive behaviour or apparent
compliance, they violate the 1991 Constitution. Mere formal compliance with my
decisions mocks the effectiveness of citizens’ rights. 172 And in case Ms. SCJ or Mr. COS
do not comply with my judgments, I can ask for the guardianship file in order to issue the
necessary measure to protect the fundamental right. For example, I can issue a
replacement judgment. 173
N: Thank you very much for your time, Ms. CC. It was very informative to
listen to you.
169
For constitutional doctrine, the Constitutional Court understands the interpretation of a constitutional
disposition in the absence of law that regulates it, but also the interpretation that the Constitutional Court
has given to a statutory norm in case of interpretative difficulties. See T-295-98 CC.
170
See T-295-98 CC.
171
See e.g. T-057-97 CC.
172
T-780-02 CC. [translated by the author].
173
See SU-1158-03 CC. As examples of the Constitutional Court issuing replacement judgments, see T-
805-04 CC; accord T-815-04 CC; T-098-05 CC; T-016-06 CC; T-098-05 CC; T-296-05 CC; T-045-07 CC;
T- 425-07 CC; T-815-07 CC; and T-1055-07 CC. The Constitutional Court has also accepted that other
guardianship judges can deliver a replacement judgment in case the SCJ or the COS do not comply with
guardianship orders. See T-469-05 CC; and T-635-05 CC.
53
After listening to the young Ms. CC, I pass through some hallways and new
security measures within the Palace of Justice to interview Ms. SCJ.
1.3.2 The story in Ms. SCJ’s words
N: Ms. SCJ, tell me how your relationship with Ms. CC regarding GAJD
began.
SCJ: I said that statutory articles governing GAJD were against the 1991
Constitution even before Ms. CC did. In one of my first guardianship judgments, I argued
that, since judicial decisions are not mentioned in Article 86 of the 1991 Constitution as
being subject to a guardianship action, they are excluded. Thus, I found that the
guardianship regulation that allowed bringing GAJD must not be applied. 174
N. If there is no GAJD, how are fundamental rights supposed to be protected
during ordinary procedures?
SCJ: Because the 1991 Constitution does not mention GAJD as a method to
protect fundamental rights involved in ordinary procedures, it presumes their protection
within these procedures, as established in Article 89 of the 1991 Constitution. 175
N: Ms. CC says that you do not comply with her decisions. Is this true?
SCJ: Not always. For example, I have almost invariably followed Ms. CC’s
Palacios Sanchez judgment that declared GAJD unconstitutional. When I do not comply
with an order from Ms. CC regarding GAJD, I do so because it is not legally possible to
interfere with my actions as judge, or to review my process as already decided by a
174
File No.001 [December 1991] SCJ, Labour Chamber, following the Civil Chamber’s decision of 1991
[translated by the author]. Citation of SCJ and COS judgments will be done as follows: 1) reference or
number of file, 2) date of the judgment, and 3) name of the court and the particular chamber of section that
decided the case. When judgments of these high courts are mentioned by the CC I will mention the
reference of the CC judgment where the judgment of one of the two high courts was included.
175
Ibid.
54
competent judge. Compliance is impossible since the articles that allowed GAJD were
declared unconstitutional with res judicata and erga omnes effect in Palacio Sanchez.
The 1991 Constitution (Art. 243) forbids formally or materially reproducing the content
of norms declared unconstitutional, 176 thus, I must follow Ms. CC’s declaration of
unconstitutionality. 177
When I have received orders from Ms. CC to change my decisions, I have told her
that my judgment is res judicata according to constitutional and statutory mandates.
Thus, it will not be modified. 178 Since I know I am acting according to the 1991
Constitution (Art. 218), I have declared that, in defence of the 1991 Constitution and the
law, my judgment must not vary or be reviewable. 179 My non-compliance with Ms. CC’s
orders protected judicial autonomy and independence. These principles are highly
applicable in my case since I report to no superior authority. 180
Nevertheless, I once reluctantly followed Ms. CC GAJD’s orders in defence of
the institutional system of the country. I complied with Ms. CC’s orders, but clarified that
her judgment contributed to increased distrust and incredulity in the administration of
justice because of the legal instability that it produced. 181
176
Article 243 of the 1991 Constitution provides: “…No public authority could reproduce the normative
content of the norm declared unconstitutional while the Charter is not modified in the mandates that
supported this declaration of unconstitutionality.” [translated by the author].
177
File No. 10797, Record No. 11 [3 April 2000], SCJ, Labour Chamber [translated by the author]. Accord
Judgment [11 June 1997] SCJ, Criminal Chamber, acting as a guardianship judge in judgment T-533-97
CC.
178
File Nº 13396, Record Nº 11[19 March 2002] SCJ, Labour Chamber (regarding non-compliance with
judgment T-1306-01CC) [translated by the author].
179
Ibid. Accord File No. 12316, Record No. 69 [October 2003] SCJ. See also SU-540-07 CC, where the
SCJ was acting as a defendant and the guardianship judge declared one of its judgments null and void.
180
File No. 12316, Record No. 69 [October 2003] SCJ [translated by the author].
181
File No. 10797 Record No. 11 [3 April 2000] SCJ, Labour Chamber [translated by the author].
55
N: What does happen if an ordinary judge has erred? Does error not justify
compliance with Ms. CC orders regarding GAJD?
SCJ: No, there is no justification for obeying Ms. CC’s decisions regarding
GAJD even in cases where it could be argued that the judgment is wrong. It must be
remembered that no authority is exempt from error. A guardianship judge is not exempt
from error either. He or she may err with more frequency due to the short time that he or
she has to decide the case. 182
Moreover, since the GAJD orders of Ms. CC disregard her own Palacio Sanchez
judgment, I can qualify the decision of Ms. CC regarding my judgment as an open
violation of the law and of the 1991 Constitution (i.e. a de facto act). 183
N: Are you and Ms. CC at the same hierarchical level according to the 1991
Constitution?
SCJ: No, we are not at the same level, particularly in terms of ordinary
jurisdiction. It is impossible to conceive that under the rule of law Ms. CC, in arguing for
the defence of fundamental rights, declares one of my judgments null and void.
According to Article 234 of the 1991 Constitution, I am the “maximum tribunal” of
ordinary jurisdiction. 184 As an autonomous judicial institution and the ultimate organ in
my jurisdiction, I am not subject to any external superior. 185 Thus, it is untenable to think
that Ms. CC may impose her opinion on affairs within my exclusive constitutional
182
Ibid. Guardianship actions have to be decided within ten days at the trial level and twenty days at the
appellate level.
183
File No. 12316, Record No. 69 [October 2003] SCJ [translated by the author].
184
File No. 10797, Record No. 11[3 April 2000] SCJ, Labour Chamber [translated by the author]. Accord
Judgment of the SCJ acting as guardianship judge in judgment T-001-04 CC.
185
Judgment of the SCJ, Civil Chamber, acting as a guardianship judge in judgment T-006-92 CC
[translated by the author]. See also Judgment of the SCJ, Criminal Chamber acting as a guardianship judge
in T-759-03 CC. Accord Judgment of the SCJ acting as a guardianship judge in judgment T-853-03 CC.
56
jurisdiction. 186 To make clear what my status regarding the ordinary law is, I have called
myself the “judicial apex” and “maximum expression of judicial hierarchy.” 187
The 1991 Constitution clearly supports my attitude vis-à-vis Ms. CC’s orders. The
mandates according to which I am the ultimate tribunal of ordinary justice, judges’
subjection exclusively to law, 188 the independence of judges, and due process are
constitutionally established. To respect these values is to respect the 1991 Constitution. I
am the ultimate organ because in a hierarchical order every process must have an end and
the 1991 Constitution establishes a moment when my decisions are unreviewable. 189
Finally, not even one of my sections or chambers could study a guardianship
action against a decision of any other of my sections or chambers. Because of the
principle of “equalitarian diversity,” every one of my sections or chambers is the ultimate
tribunal in relation to its specialty. That is to say, every chamber is autonomous. 190
N: You emphasise the fact that you belong to the ordinary jurisdiction and
that Ms. CC does not. Is there any interaction between ordinary and constitutional
jurisdiction?
SCJ: No, the principle of separation of powers forbids this interaction. Just as
there is a separation of powers in the state structure, there is also a separation of powers
186
File No. 12316, Record No. 69 [October 2003] SCJ, Labour Chamber [translated by the author].
187
See Judgment of the SCJ acting as a guardianship judge in judgment T-678-03 CC.
188
Article 230 of the 1991 Constitution establishes: “Judges, in their decisions, are subject only to the
empire of the law. Equity, jurisprudence, general principles of law and legal doctrine are auxiliary criterion
for judicial activity.” [translated by the author]
189
File Nº, 13396 Record Nº 11 [19 March 2002] SCJ, Labour Chamber, regarding compliance with the
Constitutional Court’s judgment T-1306-01 CC [translated by the author].
190
[translated by the author]. Accord Judgment of the SCJ acting as a guardianship judge in T-001-04 CC.
57
inside the judicial branch. Even I, myself, am organised by the 1991 Constitution into
separate chambers having different jurisdictions. 191
Moreover, there is no interaction since the guardianship action is not an
alternative means to displace or substitute natural judges. The guardianship action’s
informality cannot be understood as providing the possibility of an unconstrained review
process; thus, the plaintiff cannot use constitutional judges as arbiters of his or her
ordinary litigation. 192 Guardianship action was established to remedy fundamental rights’
violations and is not supposed to decide the adjudication of rights. Adjudication
corresponds exclusively to the jurisdiction of ordinary judges. 193
N: I note that you mention the concept of non-reviewability of judgments;
what is your opinion regarding res judicata?
SCJ: The concept of res judicata is supraconstitutional. Res judicata is an
unwritten universal principle supported by Article 94 of the 1991 Constitution, which
asserts that there are rights that, despite being inherent to the individual, are not expressly
mentioned in either the constitutional text or international treaties ratified by Colombia.
As a right inherent to a human being, res judicata would have supraconstitutional
value. 194
When I am required to comply with Ms. CC’s orders, two concepts basic for
social coexistence are endangered: res judicata, as incontrovertible truth, and legal
191
Judgment of the SCJ, Civil Chamber, acting a guardianship judge in judgment T-006-92 CC [translated
by the author].
192
Record No. 135 [8 September 1998] SCJ, Criminal Chamber [translated by the author].
193
194
58
certainty, which follows from a final decision. 195 There is no exception to the protection
of res judicata; GAJD are invalid even in cases where the judge does not study the
subject matter. 196
Besides being supraconstitutional, res judicata is also tacitly included in the 1991
Constitution. Since parties cannot forever remain in a state of expectation regarding the
judicial resolution of their conflict, there is a real constitutional right to a final
decision. 197 Finally, constitutional respect for res judicata, in particular for my judgments
as the ultimate organ of ordinary jurisdiction, is a basic truth. 198
N: Does Ms. CC commit mistakes in her GAJD judgments?
SCJ: Absolutely, and what is more, her errors amount to de facto acts. As I once
said, it was not I who committed a de facto act, but rather Ms. CC, since she granted
guardianship protection in a case where my decision was not capricious, did not lack
legal argument, and was not a flagrant violation of the 1991 Constitution. 199
I have told Ms. CC that it was truly nonsense to insinuate - and even more to
assert - that the issue I decided was a de facto act. This was tantamount to saying that in
every legal controversy, because of the fact that one of the positions does not convince
Ms. CC, this position is, therefore, arbitrary. 200 The one who is acting against the law is
195
File Nº 13396, Record Nº 11[19 March 2002] SCJ, Labour Chamber, regarding compliance with
judgment T-1306-01 CC [translated by the author].
196
197
File Nº 13396, Record Nº 11[19 March 2002] SCJ, Labour Chamber, regarding compliance with
judgment T-1306-01CC [translated by the author].
198
Ibid.
199
File No. 10797 Record No. 11[3 April 2000], SCJ, Labour Chamber [translated by the author].
200
File No. 69 Record No. 12316 [October 2003] SCJ, Labour Chamber [translated by the author].
59
Ms. CC, since it is not legal for her to compel judges from other organs to observe her
understanding of a particular statutory norm. 201
N: You emphasise the protection of statutory norms. Are statutes more
important than the 1991 Constitution?
SCJ: Not exactly. Statutes are the materialisation of the 1991 Constitution; thus,
to correctly apply them (through statutory judgments that fall under cassation) is to
defend the 1991 Constitution. 202 Moreover, to apply statutes as dictated by the competent
authority is to protect legal certainty and the 1991 Constitution, in particular in its equal
protection clause. 203 Finally, the 1991 Constitution itself affirms that judges are subject
only to law. 204
N: Ms. CC says the 1991 Constitution protects some individuals in
particular, and in her judgments she acts in accordance with this special protection.
Do you agree?
SCJ: No. I think that sometimes in Ms. CC’s judgments there is an
instrumentalisation of constitutional jurisdiction to make the interests of some sectors or
people in particular prevail without constitutional support.205
N: If I am not wrong, Ms. CC started building her concept of de facto acts
based on some of your decisions. Have you been consistent with your position
rejecting GAJD, or have you hesitated for a while?
201
Ibid.
202
File Nº 13396 Record Nº 11 [19 March 2002] SCJ, Labour Chamber [translated by the author].
203
Ibid.
204
205
File Nº 13396 Record Nº 11 [19 March 2002] SCJ, Labour Chamber, [translated by the author]
(regarding compliance with the Constitutional Court’s judgment T-1306-01).
60
SCJ: To be honest, I have accepted the de facto acts doctrine as a valid reason for
GAJD to proceed. And, yes, Ms. CC has built part of her doctrine of de facto acts and the
defects that constitute them on the shoulders of one of my opinions.
I remember that, several years ago, I held that a de facto act occurs when the
judge renders a decision without legal motivation, without evidentiary analysis and
without providing an opportunity for appellate review, despite this opportunity being
statutorily established. But I also argued that decisions are not de facto acts when there
was an opportunity to bring evidence into the process, to challenge the adversary, and to
observe the procedural forms. 206
For example, in a case where a person affected by a judgment had not been
involved in the original process, I determined that such an individual (the plaintiff in a
guardianship action) was without means of defence in the process, and had no
opportunity to appeal the decision. The right to defence was thus violated by an irregular
judicial decision that could be classified as a de facto act. 207 In this case, I decided to
grant protection. In cases where I have accepted the concept of the de facto act, however,
I have been very careful not to evaluate whether I agree with the merits of the judicial
opinions under review. 208 I understand that a de facto act must be based on a denial of
formal requirements and the lack of any objective basis capable of sustaining a judicial
206
207
File No. 6772 [August 1999] SCJ, Civil Chamber [translated by the author].
208
File No. 108 [22 July 1998] SCJ, Criminal Chamber [translated by the author]. See the Judgment of the
SCJ, Criminal Chamber, acting as a guardianship judge in judgment SU-478-97 CC; Judgment [1 October
1997] SCJ, Civil Chamber, acting as a guardianship judge in judgment SU-429-98 CC; Judgment of the
SCJ, Civil Chamber, acting as a guardianship judge in judgment T-123-96 CC; File No. 6576, Record No.
195 [9 December1999] SCJ, Civil Chamber; Judgment of the SCJ acting as a guardianship judge in
judgment T-1017-99 CC; and Judgment of the SCJ, Criminal Chamber, acting as a guardianship judge in
judgment SU-1184-01 CC.
61
decision. This irregular judicial act openly affronts the legal order.209 Conversely, there is
no de facto act if the judge provides reasonable arguments to support his or her
decisions. 210 I have been careful not to disregard the principles of independence and
autonomy that protect the actions of the ordinary judge when he studies the issues under
his authority. 211
Also, I have followed the classification of the defects that constitute a de facto act,
according to Ms. CC: grave procedural, substantive, factual or organic defects. 212 And I
have even quoted her when she complements the list of defects by saying that there is a
de facto act (i) when the conduct of the agent lacks a legal basis; and (ii) when the
decisions arise merely from the subjective will of the judge and the judgment constitutes
a grave and imminent violation of fundamental rights. Moreover, I have verified that
there is no other suitable way to protect the fundamental rights under attack or threat.213
Sometimes I have granted protection through a guardianship action. Judgments
are protected by the presumption of correctness and legality, but these presumptions, I
have said, can be rebutted when due process has been violated. 214 Other times, I neither
209
Record No. 108 [22 July 1998] SCJ, Criminal Chamber [translated by the author]. See judgment by the
SCJ, Civil Chamber, acting as a guardianship judge in judgment T-442-94 CC.
210
[translated by the author]. See the judgment of June 1st, 1994 by the SCJ, Civil Chamber, acting as a
guardianship judge in judgment T-442-94 CC.
211
Judgment by the SCJ, Civil Chamber, acting as a guardianship judge in judgment SU-477-97 CC
212
File No. 195, Record No. 6576 [9 December 1999] SCJ, Civil Chamber [translated by the author]. See
Record No. 094 [07 June 2000] SCJ, Criminal Chamber.
213
Record No. 094 [07 June 2000] SCJ, Criminal Chamber [translated by the author].
214
Record No. 26 [24 February 2000] SCJ, Criminal Chamber [translated by the author]. See judgment of
the SCJ, Civil Chamber, acting as a guardianship judge in judgment T-382-01 CC.
62
denied nor asserted the viability of GAJD under the de facto doctrine, but I granted
guardianship protection. 215
In a different case, I strictly related the violation of access to justice as part of due
process with a de facto act. In a case where the parties had delegated the decision in their
case to an arbitration tribunal when the law did not allow this, I held that part of due
process is the submission of the case to the judge with legally established authority to
deal with the matter. 216 The state, and its judiciary, is the natural holder of jurisdictional
power. 217 This precept was ignored in the case at issue.
As a matter of fact, access to justice has been one of the issues in which I have
given some room to GAJD. Following Ms. CC, I have asserted that in order to warrant
access to justice, judgments that do not decide on the merits should be exceptional, and to
avoid them the judge must exhaust all possibilities of interpretation that the legal order
permits. An inhibitory decision, in my opinion, is not innocuous since it can lead to the
extinction of a right of action. 218
But let me remind you that I have been very restrictive on these issues. Even
when I mention the de facto acts doctrine, I have asserted that it is not within the
jurisdiction of the so-called guardianship judges to involve themselves in ongoing
judicial procedures. The guardianship judge must not adopt a parallel decision so as to
215
216
Judgment by the SCJ, Civil Chamber, acting as a guardianship judge in judgment T-057-95 CC
[translated by the author]
217
Ibid. See also Judgment of the SCJ acting as trial guardianship judge in judgment T-249-95 CC.
218
Judgment by the SCJ, Civil Chamber, acting as a guardianship judge in judgment T-1017-99 CC
63
replace the judge who has the responsibility for conducting the case in the exercise of his
or her functions within the institutional legitimacy of the country. 219
N: Thank you, Ms. SCJ. Your input on GAJD has helped me to understand
more fully your relationship with your young neighbour.
Mr. COS lives right in front of Ms. CC and Ms. SCJ. Nonetheless, Mr. COS place
is not interconnected with the site of any of my two previous interviewees. As in the two
previous interviews, in order to interview Mr. COS I had to pass through several security
measures. After these measures, I am in.
1.3.3 The story in Mr. COS’s words
N: How did your relationship with Ms. CC regarding GAJD begin?
COS: Since I am older and wiser, I tried to warn her. Even before the judgment in
which Ms. CC declared the statutory norms that regulated GAJD unconstitutional, I had
rejected GAJD. I told Ms. CC that to allow GAJD would break the principle of res
judicata, the basis of legal stability and, also, the principles of judicial autonomy and
independence protected in Article 228 of the 1991 Constitution. 220 Even my different
chambers, I said, could not review each other. My chambers are all of equal standing and
thus without authority to order, modify, or add to each other’s decisions against the
principle of judicial independence. 221
219
220
Judgment of the COS, Second Chamber, acting as a guardianship judge in judgment T-258-94 CC
[translated by the author]. See also Record No: 11001-03-15-000-2007-00441-01(AC) [15 November
2007] COS, First Chamber, citing the COS, Full Chamber, decision of February 3rd, 1992 in case AC-015.
221
Judgment of the COS, Fourth Chamber, acting as a guardianship judge in judgment T-117-93 CC
[translated by the author]. See the Judgment of the COS, First Chamber, acting as a guardianship judge in
judgment T-147-93, CC.
64
N: Is there any exception for GAJD to be valid - for example, in the case of de
facto acts?
COS: I do hesitate to answer this question. As you can surmise from my previous
answer, at the beginning, I did not even study the subject matter of any GAJD since the
norms that regulated such an action had been declared unconstitutional. 222
Most of the time, and in particular in recent times, I have absolutely denied
GAJD’s possibility. 223 In 2002, there was a point where I got tired of Ms. CC’s intrusions
into the administrative jurisdiction under the excuse of a de facto act. Thus, I decided
that, from then on, I would deny the possibility of GAJD and hold that it is without
exception not viable. 224 In numerous of my 2007 opinions, I reinforced this criterion. 225
But this has not been always the case. Around 2001, I began examining judicial
decisions in order to determine whether there was an open violation of the 1991
Constitution by the judge. I did so based on the part of the Palacios Sanchez decision’s
222
Judgment of the COS, Second Chamber, acting as a guardianship judge in judgment T-258-94 CC
[translated by the author]. Accord judgment of the COS, Fourth Chamber acting as a guardianship judge in
judgment T-117-93 CC; and judgment of the COS, First Chamber, acting as a guardianship judge in
judgment T-147-93 CC.
223
See judgment of the COS, Fifth Section, acting as a guardianship judge in T-538-94 CC. Accord
judgment of the COS, Fourth and Second Chamber, acting as trial and appellate guardianship judges,
respectively, in judgment T-230-07 CC; and judgments of the COS acting as a guardianship judge in
judgments T-428-07 CC and T-838-07 CC.
224
Reference No: 88001-23-31-000-2002-0006-01(AC-2931) [October 2002] COS, Second Chamber,
Subsection A [translated by the author].
225
Reference No: 11001-03-15-000-2006-01318-01(AC) [29 March 2007] COS, Second Chamber,
Subsection B [translated by the author]. See Reference No: 11001-03-15-000-2006-01226-00(AC) [1
November 2006] COS, Second Chamber, Subsection B; Reference No: 11001-03-15-000-2007-00660-
00(AC) [28 June 2007] COS, Second Chamber, Subsection B; Reference No: 11001- 03-15-000-2007-
01009- 00(AC) [27 September 2007] COS, Second Chamber, Subsection B; Reference No: 11001-03-15-
000-2007-00560-00(AC) [5 June 2007] COS, Second Chamber, Subsection B; Reference No: 11001-03-
15-000-2007-00600-00(AC) [14 June 2007] COS, Second Chamber, Subsection B; Reference No: 11001-
03-15-000-2007-00753-00(AC) [19 July 2007] COS, Second Chamber, Subsection B; Reference No:
11001-03-15-000-2007-00692-00(AC) [28 June 2007] COS, Second Chamber, Subsection A; and
Reference No: 11001-03-15-000-2007-00751-00(AC) [August 23rd, 2007] COS, Second Chamber,
Subsection A; see also judgment of the COS, Second Chamber, Subsection B, and Fourth Chamber, acting
as trial and appellate guardianship judges, respectively, in judgment T-987-07 CC; and judgement of the
COS acting as a guardianship judge in T-117-07 CC.
65
reasoning that mentions the concept of the de facto act. 226 I have supported Ms. CC’s
theory of de facto acts as manifest and unquestionable error or arbitrariness several times
and have analysed cases under her parameters. 227 I have held that Ms. CC has established
that a judicial decision can be attacked by a guardianship action when the judge acts
arbitrarily and capriciously in a way that is totally disconnected from the legal order. 228 I
have held that despite GAJD’s illegality, when a de facto act is clear, its viability is not
for discussion - even when a decision of Ms. SCJ 229 or Ms. CC 230 is under analysis.
Indeed, even Ms. CC is under the constitutional obligation to protect the fundamental
rights entrenched in Article 2 of the 1991 Constitution. 231 Furthermore, I have corrected
my own decisions when I find them to be a de facto act. 232 That is because when a
judge’s behaviour is the result of an irregular exercise of his functions his act has no
juridical justification. 233
226
Reference No: 25000-23-24-000-2001-0890-01(AC-1017) [2001] COS, Second Chamber, Subsection A
[translated by the author]. Accord Reference No: 25000-23-24-000-2001-0890-01(AC-1017) [30 August
2001] COS, Second Chamber, Subsection A; and Reference No: 11001-03-15-000-2005-01430-00(AC) [16
February 2006] COS, Second Chamber, Subsection A.
227
See judgment of the COS, Third Chamber, acting as a guardianship judge in judgment T-295-98 CC.
Accord Reference No: 11001-03-15-000-2002-0688-02(AC-159) [31 October 2002] COS, Second
Chamber, Subsection B; File No: AC-3944, [10 October 1996] COS, Fourth Chamber; File No: AC-11980
[September, 2000] COS, Third Chamber; and Reference No: 25000-23-25-000-2001-1221-01(AC-1403)
[October 2001] COS, Third Chamber. See also judgment of COS, Third Chamber, acting as a guardianship
judge in judgment T-295-98 CC; judgment of COS, Full Chamber, acting as a guardianship judge in SU-
429-98 CC; judgment of COS, Full Chamber, acting as a guardianship judge in SU-542-99 CC; judgment
of COS, First Chamber, acting as a guardianship judge in T-960-03 CC; judgment of COS, First Chamber,
acting as a guardianship judge in T-1160-06 CC; judgment of COS, Third and Fourth Chamber, acting as
trial and appellate guardianship judges, respectively, in T-774-04 CC; and judgment of COS, Fourth
Chamber, acting as a guardianship judge in T-1222-04 CC.
228
File No: AC-10855 [8 June 2000] COS, Second Section, Subsection B [translated by the author]. Accord
File No: AC-8425 [16 September 1999] COS, First Chamber.
229
File No: AC-10855 [8 June 2000] COS, Second Section, Subsection B [translated by the author].
Accord File No: AC-3184 [10 May 2001] COS.
230
See Reference No: 25000-23-25-000-2001-1221-01(AC-1403) [October 2001] COS, Third Chamber.
231
Ibid. See also the judgment of COS, Third Chamber, acting as a guardianship judge in T-1097-05 CC.
232
See Reference No: 11001-03-15-000-2002-0497-01(AC-104) [September 26th, 2002] COS.
233
File No: AC-11980 [September, 2000] COS, Third Chamber [translated by the author].
66
I have not only followed the doctrine of de facto acts, but, sometimes, I have
applied the de facto acts’ four defects test to determine whether there was an arbitrary
decision. 234 Building upon Ms. CC’s opinions, I have held GAJD viable if there is one of
these four defects: substantive, organic, factual and procedural. 235 I have even followed
Ms. CC’s newest criteria of viability of GAJD when there is a fundamental rights
violation in a judgment! 236
As Ms. CC has done, I have said that matters that can be subject to discussion or
that are not a clear violation of legal order cannot be qualified as de facto acts. 237 As Ms.
CC has held, while the pertinent norms are applied, independently of the fact that other
judges share their interpretation, there is no de facto act, but a different act of law that
does not lack reasonability. 238 In the same line of reasoning as that used by Ms. CC, I
have asserted that only when the procedural mistake implies the violation of the ends
sought by the procedural norm is there a de facto act. 239
234
See Reference No: 11001-03-15-000-2002-0688-02(AC-159) [31 October 2002] COS, Second
Chamber, Subsection B. See also Reference No: AC-11980 [September 2000] COS, Third Chamber; and
Reference No: 11001-03-15-000-2002-1204-01(AC-310) [30 January 2003] COS, Third Chamber.
Following a Constitutional Court test very similar to the four defects test, see Reference No: 11001-03-15-
000-2002-0497-01(AC-104) [26 September 2002] COS, Third Chamber; and Reference No: 11001-03-15-
000-2002-0955-01(AC-236) [30 January 2003] COS, Third Chamber.
235
See Reference No: AC-11980 [September 2000] COS, Third Chamber. Accord File No: AC-3184 [10
May 2001] COS; and judgment of COS acting as a guardianship judge in T-542-99, CC.
236
See Reference No: 11001-03-15-000-2007-01218-00(AC) [29 November 2007] COS, Second Chamber,
Subsection A. Accord Reference No: 11001-03-15-000-2003-00026-01(AC-346) [February 2003] COS,
Third Chamber; and judgment of COS, Second Chamber, Subsection B, acting as a guardianship judge in
T-1285-05 CC.
237
Reference No: 11001-03-15-000-2002-0497-01(AC-104) [26 September 2002] COS [translated by the
author]. Accord Reference No: 11001-03-15-000-2002-0955-01(AC-236) [30 January 2003] COS;
Reference No: 11001-03-15-000-2003-00026-01(AC-346) [February 2003] COS, Third Chamber;
Judgment of the COS acting as guardianship judge in T-542-99 CC; Reference No: 25000-23-26-000-2001-
0519-01(AC) [16 August 2001] COS, Second Chamber, Subsection B; Reference No: AC-5670 [March
1998] COS, Fourth Chamber; and Reference No: AC-6735 [March 1999] COS, Fourth Chamber.
238
Reference No: 25000-23-26-000-2001-0519-01(AC) [16 August 2001] COS, Second Chamber,
Subsection B [translated by the author].
239
Reference No: 11001-03-15-000-2005-00145-00(AC) [7 April 2005] COS, Second Chamber [translated
by the author].
67
In addition, I have based my position on the protection of the basic conditions to
administer justice, such as independence and the functional jurisdiction of the judge. 240
For me, it is the judge who has all the requisite knowledge necessary to make a decision
regarding the process. 241 Accordingly, when I have analysed whether there is a de facto
act, I have been extremely careful, since to use this legal method without limit creates a
judicial parallelism not desired by the 1991 Constitution. 242
Finally, despite the fact that, in recent times, I have been highly reluctant to admit
GAJD, in 2005 I again admitted the concept of a de facto act, as I have done in previous
decisions. 243 And in 2007, I made two exceptions to my general rule of the non-
admissibility of GAJD under any circumstances in cases where access to justice had been
totally denied. In one of the cases, there was an inhibitory decision that had been
delivered despite the fact that the statutory deadline had not yet occurred. In the other
case, the judge did not decide on the relevant subject matter, but rather on a topic totally
irrelevant to the case. 244 Indeed, when I have dealt with issues involving the denial of
access to justice, my position has been generous. Supported by Ms. CC’s ideas, I have
240
See Reference No: AC-3184 [10 May 2001] COS, Third Chamber. Accord Reference No: 11001-03-15-
000-2003-00026-01(AC-346) [February 2003] COS, Third Chamber.
241
See Reference No: AC-3184 COS [10 May 2001], COS, Third Chamber.
242
See Reference No: 25000-23-24-000-2001-0890-01(AC-1017) [2001] COS, Second Chamber,
Subsection A. Accord Reference No: 25000-23-24-000-2001-0890-01(AC-1017) [30 August 2001] COS,
Second Chamber, Subsection A.
243
See Reference No: 11001-03-15-000-2005-00145-00(AC) [2005] COS, Second Chamber, Full chamber;
accord Reference No: 11001-03-15-000-2004-01622-01(AC) [April 2005] COS, Second Chamber,
Subsection A; Reference No: 11001-03-15-000-2005-00960-00(AC) [6 October 2005] COS, Second
Chamber; and Reference No: 11001-03-15-000-2005-01430-00(AC) [16 February 2006] COS, Second
Chamber, Subsection A.
244
See Reference No: 11001-03-15-000-2007-01126-00(AC) [25 October 2007] COS, Second Chamber; and
Reference No: 11001-03-15-000-2007-01218-00(AC) [29 November 2007] COS, Subsection A.
68
held that access to justice is a fundamental right, the scope of which includes an objective
analysis that makes sure a real weighing of facts. 245
N: If sometimes you have admitted GAJD, do you have good reasons not to
apply GAJD as a default rule?
COS: Ms. CC, in a judgment with erga omnes effect, supported my decision. The
norm that permitted GAJD was declared unconstitutional by the Palacio Sanchez
judgment; the criterion on which GAJD had been allowed was a non-binging obiter dicta
of the reasoning of Palacio Sanchez, which is not binding. 246 The holding of Palacio
Sanchez, which declared the guardianship action against judicial decisions
unconstitutional, constitutes res judicata and no authority can override it, not even Ms.
CC. 247
N: Ms. SCJ admits that she deviates from Ms. CC’s opinions. Do you also
deviate from them?
COS: Yes, and when I have done so it has been supported by the 1991
Constitution. Due to judicial autonomy and independence, my decisions do not
245
Reference No: 11001-03-15-000-2007-01218-00(AC) [29 November 2007] COS, Subsection A [translated
by the author].
246
See Reference No: 88001-23-31-000-2002-0006-01(AC-2931) [October 2002] COS, Second Chamber,
Subsection A.
247
Subsection B [translated by the author]. Accord Reference No: 11001-03-15-000-2006-01226-00(AC) [1
00(AC)[28 June 2007] COS, Second Chamber, Subsection B; Reference No: 11001- 03-15-000-2007-
000-2007-00560-00(AC)[June 5th, 2007] COS, Second Chamber, Subsection B; Reference No: 11001-03-
11001-03-15-000-2007-00692-00(AC) [28 June 2007] COS, Second Chamber, Subsection A; Reference
No: 11001-03-15-000-2007-00751-00(AC) [23 August 2007] COS, Subsection A; Reference No: 11001-
03-15-000-2004-00308-01(AC) [9 July 2004] COS, First Chamber; Reference No: 11001-03-15-000-2006-
01238-01(AC) [1 March 2007] COS, First Chamber; Reference No: AC-10203 [June 29th, 2004] COS;
Reference No: 11001-03-15-000-2007-00441-01(AC), [November 15th, 2007] COS, First Chamber; and
Reference No: 11001-03-15-000-2007-00489-00(AC) [14 June 2007] COS, Fifth Chamber.
69
necessarily and inexorably have to agree with Ms. CC’s point of view on a particular
subject matter. If GAJD is allowed, the usurpation of jurisdictions will abound, there will
be legal disorder and a crazy legal order that ends up in the inefficiency of norms and of
law itself, as well as in injustice and barbarity. 248
Besides, although Ms. CC is in charge of protecting fundamental rights, she has
gone violently beyond constitutional barriers by breaking into my administrative
jurisdiction and into Ms. SCJ’s ordinary jurisdiction.
It is not possible, due to legal stability and respect of due process, to allow a
changing character of judicial decisions through the guardianship action. Ms. SCJ and I
are the ultimate decision making bodies for our own jurisdictions according to Articles
234 and 237, number 1, of the 1991 Constitution. Thus, our decisions are intangible and
cannot be modified. 249
As a manifestation of due process, citizens have the right to be judged by judges
established by the 1991 Constitution and the law. That is why it is not possible to
invalidate acts of regular procedures through summary procedures such as the
guardianship action. 250
248
Judgment of the COS, Second Chamber, acting as a guardianship judge in T-057-97 CC [translated by
the author].
249
Reference No: 11001-03-15-000-2006-01318-01(AC) [March 29th, 2007] COS, Second Chamber,
Subsection B [translated by the author]. See in the same vein: Reference No: 11001-03-15-000-2006-
01226-00(AC) [1 November 2006] COS, Second Chamber, Subsection B; Reference No: 11001-03-15-
000-2007-00660-00(AC) [28 June 2007] COS, Second Chamber, Subsection B; Reference No: 11001- 03-
15-000-2007-01009- 00(AC)[27 September 2007] COS, Second Chamber, Subsection B; Reference No:
11001-03-15-000-2007-00560-00(AC)[5 June 2007] COS, Second Chamber, Subsection B; Reference No:
11001-03-15-000-2007-00600-00(AC) [14 June 2007] COS, Second Chamber, Subsection B; Reference
No: 11001-03-15-000-2007-00753-00(AC) [19 July 2007] COS, Second Chamber, Subsection B;
Reference No: 11001-03-15-000-2007-00692-00(AC) [28 June 2007] COS, Second Chamber, Subsection
A; Reference No: 11001-03-15-000-2007-00751-00(AC) [23 August 2007] COS, Subsection A; and
Reference No: 11001-03-15-000-2007-00489-00(AC) [14 June 2007] COS, Fifth Chamber.
250
See Reference No: 11001-03-15-000-2005-00824-00(AC) [October 2006] COS, Fourth Chamber. See
also Reference No: 25000-23-24-000-2006-00650-01(AC) [29 June 2006] COS, Full Chamber.
70
Furthermore, the current focus on the violation of fundamental rights as the
viability criteria for GAJD allows Ms. CC to indefinitely and indeterminately attribute
jurisdiction to review judicial decisions to herself. This situation goes against the
constitutional distribution of jurisdiction and judicial autonomy, brings legal
uncertainty, 251 and disregards the constitutional mandate of subjection to the mandates of
law. 252
No doubt, it is inadmissible and violates the legal order that Ms. CC had steadily
opened the possibility of GAJD until constituting herself as the final organ of the
Colombian judicial system, 253 the hierarchical superior of all, 254 and as having the last
say on different matters of law, 255 without any norm that supports this status.
251
Reference No: 11001-03-15-000-2007-01050-00(AC) [11 October 2007] COS, Second Chamber,
Subsection B [translated by the author]. Accord Reference No: 11001-03-15-000-2005-00824-00(AC)
[October 2006] COS, Fourth Chamber. See also the Judgment of the COS, Second Chamber [10 September
2006] in judgment T-057-97 CC (for the idea of violation of judicial independence); and Reference No:
25000-23-24-000-2006-00650-01(AC) [29 June 2006] COS.
252
Reference No: 11001-03-15-000-2004-00308-01(AC) [9 July 2004] COS, First Chamber [translated by
the author]. Accord Reference No: 11001-03-15-000-2006-01238-01(AC) [1 March 2007] COS, First
Chamber; Reference No AC-10203 [29 June 2004], COS; Reference No: 1101-03-15-000-2007-00441-
01(AC) [15 November 2007] COS, First Chamber; and Reference No: 110010315000200400270 [9
November 2004] COS, Full Chamber.
253
Subsection B [translated by the author]. Accord Reference No: 11001-03-15-000-2006-01226-00(AC) [1
00(AC)[28 June 2007] COS, Second Chamber, Subsection B; Reference No: 11001- 03-15-000-2007-
11001-03-15-000-2007-00692-00(AC) [28 June 2007] COS, Second Chamber, Subsection A; Reference
No: 11001-03-15-000-2007-00751-00(AC) [23 August 2007] COS, Subsection A; and Reference No
25000-2325-000-1998-5123-01(4361-02) [20 September 2006] COS, Full Chamber.
254
Reference No: 11001-03-15-000-2005-00824-00(AC) [October 2006] COS, Fourth Chamber [translated
by the author].
255
Reference No: 11001-03-15-000-2004-00308-01(AC) [9 July 2004] COS, First Chamber [translated by
the author]. See Reference No: 11001-03-15-000-2006-01238-01(AC) [1 March 2007] COS, First
Chamber; Reference No: AC-10203 [29 June 2004] COS; and Reference No: 11001-03-15-000-2007-
00441-01(AC) [15 November 2007] COS, First Chamber.
71
In particular, when I have received orders from Ms. CC, I have not complied with
them since her judgment lacks validity because she acted without constitutional authority.
She supplants me as the ultimate tribunal of administrative justice and disregards
constitutional res judicata. That is why her decision did not have any effect on my
judgment. 256
But do not misunderstand me, my disobedience is justified - the relationship with
Ms. CC is not easy. Even in a case where I tried to obey her orders, Ms. CC held that I
had not actually complied with what she had ordered me to do and asked me to deliver a
new decision according to her parameters. I, thus, decided to disobey her new order. 257
Specifically, I did not comply with her decision because it was a de facto act.
Since Ms. CC did not have the authority to deliver a new judicial decision from the
guardianship procedure, her decision constituted a grave organic defect. Furthermore,
according to the statutory regulations of the guardianship action, Ms. CC does not have
authority to look after the compliance with her decisions. 258
I had no other option but to declare Ms. CC’s decision a de facto act that lacks
validity because it went against the 1991 Constitution. Thus, her decision had no effect
on my judgment, which is still valid, constitutes res judicata and cannot be modified for
any further judicial decision. Finally, due to her arbitrary conduct, I submitted a request
for a disciplinary investigation of Ms. CC. 259
Ms. CC’s attitude regarding GAJD was so mistaken that I thought the authorities
must initiate a disciplinary proceeding against her. According to Article 121 of the 1991
256
See Reference No: 11001-03-15-000-2005-00824-00(AC) [October 2006] COS, Fourth Chamber.
257
See Reference No: 25000-2325-000-1998-5123-01(4361-02) [20 September 2006] COS, Full Chamber.
258
Ibid.
259
Ibid.
72
Constitution, no public authority can exercise a jurisdiction different from the one
attributed to it by the 1991 Constitution and the law. Thus, if Ms. CC asserts jurisdiction
that she does not have, she violates the legality principle and must be investigated for
such an act. 260 Instead of being the guardian of the 1991 Constitution, Ms. CC violated
it. 261
The decision to open an investigation against Ms. CC was not a surprising one. In
one of my previous judicial opinions, I had declared that Ms. CC’s judgment against one
of my decisions was not valid since it had been delivered without constitutional authority,
supplanting me in my role as highest judge of administrative justice, and disregarding res
judicata. 262 Thus, her judgment had no effect on my decision which, therefore, remained
valid and was protected by unchangeable and definitive res judicata effect. 263
N: Let me go back to less personal questions. If there is a collision of
principles between legal stability and justice, which principle do you think must
prevail?
COS: I think your question is partially based on a false dichotomy. Legal stability
does not antecede justice but rather integrates it. Justice must prevail when it is found
that a judicial decision violates fundamental rights, since, without doubt, if a judicial
decision violates fundamental rights there is no minimum condition for a claim of legal
stability. 264
260
Ibid.
261
Ibid.
262
Reference No: 110010315000200400270 [9 November 2004] COS, Full Chamber.
263
Ibid.
264
Reference No: 25000-23-24-000-2001-0890-01(AC-1017) [2001] COS, Subsection A [translated by the
author]. See Reference No: 25000-23-24-000-2001-0890-01(AC-1017) [30 August 2001] COS, Second
73
N: If there is not separation between justice and legal stability, is there any
friction between res judicata and GAJD?
COS: Partially. In the cases where I admitted GAJD, I said that res judicata must
be respected, in principle, for its metapositive character. To use GAJD without limit
creates a judicial parallelism not wanted by the 1991 Constitution. 265
When I started holding that GAJD were not viable, I established that GAJD can
seriously violate res judicata and legal stability. 266 I thought, furthermore, that GAJD
went against general, public and social order. Thus, the protection of res judicata should
be absolute. 267 Without legal stability there is neither rule of law nor protection of
fundamental rights. 268
N: Is GAJD legal if, despite the fact that there is res judicata, there was a
judicial error in the procedure? Judges are human and they can err, can’t they?
COS: At the beginning, as you have realised, I thought GAJD could be the way to
correct mistakes. Later, I changed my mind since, under the principle of Constitutional
Supremacy (1991 Constitution Art. 4), all judges must apply constitutional norms and, of
course, protect fundamental rights. Thus, it does not make sense to think of a parallel
Chamber, Subsection A; and Reference No: 11001-03-15-000-2005-01430-00(AC) [16 December 2006]

COS, Second Chamber, Subsection A.
265
Ibid.
266
See Reference No: 88001-23-31-000-2002-0006-01(AC-2931) [October 2002] COS, Second Chamber,
Subsection A; and Reference No: 11001-03-15-000-2005-00824-00(AC) [October 2006] COS, Fourth
Chamber.
267
Reference No: 11001-03-15-000-2006-00447-00(AC) [29 June 2006] COS, Fourth Chamber [translated
by the author].
268
Reference No: 11001-03-15-000-2004-00308-01(AC) [9 July 2004] COS, First Chamber; accord
Reference No: 11001-03-15-000-2006-01238-01(AC) [1 March 2007] COS, First Chamber; and Reference
No: AC-10203[June 29th, 2004] COS. See also Reference No: 11001-03-15-000-2007-00441-01(AC) [15
November 2007] COS, First Chamber.
74
procedure to protect such rights. 269 Besides, despite the fact that Article 86 of the 1991
Constitution does not exclude judges from a guardianship action, Ms. CC herself was the
one who declared GAJD unconstitutional. Furthermore, GAJD must be prohibited for all
types of cases since the qualification of a judgment as a protuberant or grave error is
purely subjective. 270
Nowadays, I think that although res judicata must be protected, judges can err
and this error must be corrected, but the guardianship action is not the appropriate way to
correct mistakes when there is a final decision. Let me explain it to you: any public
authority is potentially able to violate a fundamental right. The fact that the judiciary has
the power to protect fundamental rights does not make it immune from a violation of
them through its activities. Despite the fact that there is a procedural opportunity to
correct mistakes, it is clear that on some occasions procedural remedies are formally and
materially inefficient to protect fundamental rights. If this is the case, violations of
fundamental rights imply state liability and an administrative procedure must be followed
to ask for compensation. 271
N: Do you think the principle of judicial independence limits GAJD?
COS: It is true that the interpretation of the law is dependent on the judge
assigned to the case, but the judge cannot interpret norms against constitutional values.
Judicial autonomy and freedom does not imply manifestations of law that involve the
269
Reference No: 11001-03-15-000-2006-00447-00(AC) [29 June 2006] COS, Fourth Chamber [translated
by the author].
270
Ibid.
271
See Reference No: 1001-03-15-000-2007-00498-00(AC) [12 July 2007] COS, Subsection A. Accord
Reference No: 11001-03-15-000-2007-00934-00(AC) [27 September 2007] COS, Section A; and
Reference No: 11001-03-15-000-2007-01026-00(AC) [11 October 2007] COS.
75
disrespect of fundamental rights.272 In any case, fundamental rights must be protected and
no judge can violate them. 273
It does not follow from what I have said that judges do not have a wide amount of
discretion. As far as the judge interprets a norm according to the 1991 Constitution, she
can interpret and apply it within her jurisdiction. That is why one cannot invade the
jurisdiction of a specialised judge through GAJD when there is no violation of
fundamental rights. 274
But, at other times, I have thought that Ms. CC’s decisions invade jurisdictions
which, as I have mentioned, has lead me not to support GAJD at all. A guardianship
action against judicial decisions implies the transformation of ordinary jurisdiction into
mere executors of Ms. CC’s mandates, to create an exclusive and supreme jurisdiction
and to replace ordinary procedures through the guardianship action. This situation
violates judicial independence, the subjection only to the mandate of law, and res
judicata. We judges have the right to recognise the constitutional and legal jurisdiction of
judges and their ability to make a final decision on matters within their own
jurisdiction. 275
272
Reference No: 11001-03-15-000-2002-0688-02(AC-159) [31 October 2002] COS, Second Chamber,
273
Reference No: 25000-23-24-000-2001-0890-01(AC-1017) [2001] COS, Subsection A [translated by the
author]. See Reference No: 25000-23-24-000-2001-0890-01(AC-1017) [30 August 2001] COS, Second
Chamber, Subsection A; and Reference No: 11001-03-15-000-2005-01430-00(AC) [16 February 2006]
COS, Second Chamber, Subsection A.
274
Reference No: 11001-03-15-000-2002-0688-02(AC-159) [31 October 2002] COS, Second Chamber,
275
Subsection B [translated by the author]. See Reference No: 11001-03-15-000-2006-01226-00(AC) [1
00(AC) [28 June 2007] COS, Second Chamber, Subsection B; Reference No: 11001- 03-15-000-2007-
76
N: One last question: Ms. CC says the 1991 Constitution protects some
individuals in particular and in her judgments she acts in accordance with this
special protection. Do you agree?
COS: Yes. I remember, for example, one case where the protection of an elder
plaintiff was at issue. In this case, I did not ask the plaintiff to have exhausted all the
existent remedies before bringing GAJD. For me, despite the fact that it was necessary to
have used all the legal recourses of the ordinary process before bringing a guardianship
action against a judicial decision, with regard to the equity and the prevalence of
substantive law, it was necessary to mitigate the rigidity of legal requirements and to give
an opportunity to the elder plaintiff. One of the main reasons for my decision was the
constitutional special protection of the elder plaintiff (1991 Constitution, Art. 46). 276
1.4 Conclusion
The systematisation of the Colombian high courts’ reasoning on judicial decisions
regarding GAJD from 1992 to date reveals a long-lasting institutional controversy.
Despite some hesitation from the high courts, the Constitutional Court has almost
invariably supported this review and the Supreme Court of Justice and the Council of
State have almost uniformly rejected this possibility. The main reason for rejecting and
supporting the judicial review of judicial decisions through a guardianship action is an
institutional claim of authority. Based on its role as interpreter and guardian of the
11001-03-15-000-2007-00692-00(AC) [28 June 2007] COS, Second Chamber, Subsection A; and
Reference No: 11001-03-15-000-2007-00751-00(AC) [23 August 2007] COS, Subsection A.
276
See Reference No: 11001-03-15-000-2005-00960-00(AC) [6 October 2005] COS, Second Chamber.
77
highest legal norms, the Constitutional Court claims to have the final say on all types of
judicial decisions if they violate the 1991 Constitution. The Supreme Court of Justice and
the Council of State, on the other hand, claim to have final authority on the cases under
their jurisdiction. And, thus, they claim that their judgments are unreviewable. In the
following chapters I contend that the coexistence of institutional claims of authority
among high courts in Colombia represents a case of legal pluralism within the state.
78
CHAPTER II
CONSTITUTIVE AND COMPLEMENTARY ELEMENTS OF
STATE LEGAL PLURALISM
2.1 Introduction
In Chapter I, I presented the Colombian high courts’ arguments for and against GAJD
(i.e. guardianship action against judicial decisions) and the decision-making conflict these
arguments have involved in the shape of an interview to each of the high courts. In
Chapters III and VI, I will analyze how the Colombian high courts’ controversy regarding
GAJD constitutes a case of state legal pluralism (“SLP”). Nonetheless, before studying
the Colombian case as SLP, in this chapter I set out the necessary theoretical framework
for analysing SLP.
Although authors such as John Gilissen, 277 Jacques Vanderlinden, 278 Gordon
Woodman, 279 Santi Romano, 280 and Boaventura de Sousa Santos 281 have discussed SLP,
277
See generally John Gilissen, "Introduction à l'Étude Comparée du Pluralisme Juridique" in John
Gilissen, ed, Le pluralisme juridique : Études Publiées sous la Direction de John Gilissen (Bruxelles:
Editions de l'Université de Bruxelles, 1972) [Gilissen, "Introduction à l'étude comparée"].
278
Vanderlinden, "Le Pluralisme Juridique", supra note 18. Accord Jacques Vanderlinden, "Vers une
Nouvelle Conception du Pluralisme Juridique" (1993) XVIII Revue de la Recherche Juridique - Droit
Prospectif 573 [Vanderlinden, "Vers une Nouvelle Conception"]; and Jacques Vanderlinden, "Return to
Legal Pluralism: Twenty Years Later" (1989) 28 Journal of Legal Pluralism 149 [Vanderlinden, "Return to
Legal Pluralism"].
279
See Woodman, "Ideological Combat ", supra note 17. See also Gordon R. Woodman, "Book Review of
Legal Policentricity: Consequences of Pluralism in Law Hanne Petersen and Henrik Zahle eds (Brookfield,
Vt. : Dartmouth Pub. Co., 1995)" (1997) 39 Legal Pluralism & Unofficial L 155 [Woodman, “Book
Review”]; and Gordon Woodman, "The Idea of Legal Pluralism" in Baudouin Dupret, Maurits Berger &
Laila al-Zwaini, eds, Legal Pluralism in the Arab World (The Hague: Kluwer Law International, 1999).
280
See Romano, L’Ordre Juridique, supra note 16.
281
See Boaventura de Sousa Santos, Toward a New Common Sense : Law, Science and Politics in the
Paradigmatic Transition (New York: Routledge, 1995) [Santos, Toward a New Common Sense]. Accord
79
the concept remains unclear and ill-defined. My goal in this Chapter is to explain the
constitutive and complementary elements of SLP.
I argue that the legal phenomenon of SLP has four constitutive elements and one
complementary but non-essential element. Specifically, I argue that:
(a) SLP necessarily takes place within the governmental structure of the state;
(b) SLP necessarily includes two or more public institutions within that state;
(c) SLP necessarily involves a tension between or among public institutions over
decision-making responsibilities regarding a particular subject matter;
(d) SLP necessarily includes the lack of an agreed-upon superior norm or an
agreed-upon public institution with the last word on the interpretation of a norm capable
of distributing final (legal) decision-making power among the contending public bodies;
and,
(e) In some cases, SLP includes an underlying ideological difference between the
public institutions in tension. In these cases the tension that SLP involves is likely to be
more severe than in cases that lack ideological difference as an element.
I begin with two concrete cases of SLP, each of which reveals the constitutive and
complementary elements of SLP. I then elaborate on these constitutive and contributory
elements, explaining how they come together and relate to one another in the cases
discussed below.
Boaventura de Sousa Santos, Toward a New Legal Common Sense : Law, Globalization and Emancipation
(London: Butterworths LexisNexis, 2002) [Santos, Toward a New Legal Common Sense]; and Boaventura
de Sousa Santos, "The Heterogeneous State and Legal Pluralism in Mozambique" (2006) 40:1 Law &
Society Review 39 [Santos, “The Heterogeneous State”].
80
2.2 The State of Georgia v. The Supreme Court of the United States
The two cases that follow took place in the United States’ State of Georgia, located in the
American South. As we shall see, the State of Georgia exhibited particular opposition
toward two judgments of the United States Supreme Court (the “US Supreme Court”).
The judgments have a common element: they both deal with racial minorities in the
United States. In Worcester v. Georgia, the State of Georgia wanted to exercise State
prerogatives over the Cherokee tribe that inhabited adjacent territories. In Brown v. Board
of Education of Topeka, African-Americans were subjected to racial segregation in public
schools throughout the United States, including public schools located in the State of
Georgia. The State of Georgia wanted to rule over both subject matters - indigenous
territories and racial integration in public education. Nevertheless, in both cases the US
Supreme Court held that the topics at issue were matters of federal jurisdiction over
which the US Supreme Court had jurisdiction. The State of Georgia opposed federal
regulation of these topics as defined by the US Supreme Court. As a result, a conflict of
public institutions became evident in each instance.
2.2.1 Worcester v. Georgia 282
In Worcester v. Georgia, the plaintiff, Samuel Worcester, entered Cherokee territory as a
missionary under the authority of Samuel Jackson, then President of the United States.
President Jackson’s authority to sanction missionary activity arose from a congressional
282
31 U.S. 515 (1832), infra note 284, at 537.
81
act to promote the civilization of North American Indian tribes. 283 The act authorized
Jackson to appoint persons, with the assent of the tribes, to proselytize and educate North
American Indians. While in Cherokee territory, Georgian public authorities condemned
Worcester to several years of prison for violating the State of Georgia’s law, according to
which no one could enter Cherokee territory without the State of Georgia’s prior
permission. The plaintiff had not sought or obtained the State’s permission. Worcester
challenged the State of Georgia’s decision on the grounds that it was inconsistent with
treaties signed between the United States and the Indian tribes, according to which each
participating Indian tribe was considered a sovereign nation and the regulation of Indian
tribes was exclusively within federal jurisdiction.
After asserting its jurisdiction to decide the case, the US Supreme Court ruled in
favour of the plaintiff, holding the State of Georgia’s laws to be unconstitutional, and
reversed the criminal sentence against Worcester. Before ruling on the merits of the case,
the US Supreme Court inquired whether it had jurisdiction to resolve the dispute,
specifically asking: “does it [the record] exhibit a case cognizable by this tribunal?”284 To
resolve the issue, the US Supreme Court contrasted the nature of the subject matter (in
this case, the question of the validity of a state law that constituted a presumptive
violation of valid United States’ treaties and the Constitution of the United States) with
the jurisdiction of the US Supreme Court as established in section twenty-five of the
283
The use of the term “Indians” to refer to the Cherokee population is taken textually from the judgment.
Per standard US usage, Native peoples or persons will be referred to as “North American Indians” or
simply “Indians.” See Worcester v. Georgia, 31 U.S. 515 (1832), at 546, 587, and 588, among others.
284
Worcester v. Georgia, 31 U.S. 515 (1832), at 537 [Worcester v. Georgia].
82
Judiciary Act. 285 After engaging in this contrast, Chief Justice Marshall, who delivered
the opinion of the US Supreme Court, unhesitatingly asserted that it was
too clear for controversy, that the act of congress, by which this court is
constituted, has given it the power, and of course imposed on it the duty, of
exercising jurisdiction in this case. This duty, however unpleasant, cannot
be avoided. Those who fill the judicial department have no discretion in
selecting the subjects to be brought before them. We must examine the
defence set up in this plea. 286
Chief Justice Marshall reiterated the US Supreme Court’s authority to decide the
case by holding that the US Supreme Court had jurisdiction over issues related to
personal liberty—in this case, the personal liberty of Worcester—in the following terms:
Had a judgment… been rendered for property, none would question the
jurisdiction of this court. It cannot be less clear when the judgment affects
personal liberty, and inflicts disgraceful punishment, if punishment could
disgrace when inflicted on innocence. 287
After asserting jurisdiction to decide the controversy, Chief Justice Marshall
stated that it was the exclusive power of the government of the United States of America
to regulate “the trade with the Indians, and [to] manag[e] all their affairs, as
[congressperson] think proper”, as provided by Article 9 of the Act of 1828 concluded
between the United States and the Cherokee nation. Therefore, Chief Justice Marshall
explained that the laws of the State of Georgia could have no effect over the Cherokee
285
According to Section 25 of the Judiciary Act of 1789, the US Supreme Court must have the final
judgment or issue the final decree:
where is drawn in question the validity of a treaty, or statute of, or an authority exercised
under, the United States, and the decision is against their validity; or where is drawn in
question the validity of a statute of, or an authority exercised under any state, on the
ground of their being repugnant to the constitution, treaties or laws of the United States,
and the decision is in favour of such their validity; or where is drawn in question the
construction of any clause of the constitution, or of a treaty, or statute of, or commission
held under the United States, and the decision is against the title, right, privilege or
exemption, specially set up or claimed by either party under such clause of the said
constitution, treaty, statute or commission.
286
Worcester v. Georgia, supra note 284, at 541.
287
Ibid at 562.
83
nation, including the ability of persons to enter into the Cherokee nation, nor could any
Georgian enter into Cherokee territory without federal authorisation. 288
President Jackson was well known for supporting the interests of whites seeking
to colonise the Indian nations, including those that were of interest to the State of
Georgia, 289 and for going against the interests of the Indians. 290 Once the decision was
delivered, President Jackson openly defied it and is alleged to have said that “Justice
Marshall has made his decision, now let him enforce it.” 291 President Jackson not only
failed to implement the US Supreme Court’s decision, he also backed the State of
Georgia’s actions by reprimanding Worcester. Jackson removed Worcester from a
postmastership, 292 notwithstanding that it was Jackson who had initially authorised
Worcester’s entry into Cherokee territory. Implementation of the US Supreme Court’s
judgment would have required the forcible removal of all the State of Georgia’s agents
from Cherokee territory, an action that President Jackson refused to undertake. Jackson
believed that, because the State of Georgia had extended its laws into Cherokee territory,
federal treaty law was no longer applicable to the State.293 Moreover, President Jackson
argued that he did not have the power to implement decisions delivered against the
States. Presidential powers, according to Jackson, were limited to implementation of
rulings where the Union was involved. 294
288
See Worcester v. Georgia, supra note 284 at 561.
289
See Richard P. Longaker, "Andrew Jackson and the Judiciary" (1956) 71:3 Political Science Quarterly
341 at 343.
290
Ibid at 347.
291
Ibid at 341; accord Edwin A. Miles, "After John Marshall's Decision: Worcester v. Georgia and the
Nullification Crisis" (1973) 39:4 The Journal of Southern History 519 at 519.
292
See Longaker, supra note 289 at 344.
293
Ibid at 345.
294
Ibid at 346.
84
Behind Jackson’s sonorous disobedience is the State of Georgia’s opposition to
the US Supreme Court’s order. Indeed, if Jackson in fact uttered the phrase “Justice
Marshall has made his decision, now let him enforce it,” it was only against a background
presumption that the State of Georgia had not and would not comply with the order of the
US Supreme Court, and so federal action would be needed to implement it. 295 In fact, the
State of Georgia violently resisted implementing the US Supreme Court’s decision. 296
Since the State of Georgia was the defendant in the case, the actual conflict of
authority was between the US Supreme Court and the State of Georgia. President Jackson
was not claiming authority over the issue of access to Cherokee lands, but rather was
supporting the State of Georgia’s claim of authority vis-à-vis the alleged authority of the
US Supreme Court. With regard to the State of Georgia’s disobedience, it has been said
that the actual content of Jackson’s statement should have been “John Marshall has made
his decision and he can try to enforce it. I cannot. Even if the Executive wished to enforce
the mandate it is not powerful enough to oppose the tide of feeling in the South.” 297
It has been argued that Georgian authorities were willing to liberate the
missionary but not to concede any legal force to the decision of the US Supreme Court. 298
The State of Georgia, through its governor, delayed the liberation of Worcester until he
wrote a letter leaving the question of his remaining in prison to “the magnanimity of the
State.” 299 It was only after the recognition of the right of the State of Georgia to hold him
and his invocation of the magnanimity of the State that the Governor of Georgia released
295
See Miles, supra note 291 at 527-529.
296
Ibid at 535.
297
Longaker, supra note 289 at 349.
298
See Miles, supra note 291 at 520.
299
Ibid at 540.
85
Worchester from prison. It is important to see that the Governor’s proclamation of liberty
supported the State of Georgia’s assertion of rightful action vis-à-vis missionaries and
access to the Cherokee nation, and that the decision to free Worcester came from, in the
view of the State of Georgia, the magnanimity of the State rather than the authority of the
US Supreme Court over acts of the State.300
2.2.2 Brown et al. v. Board of Education of Topeka et al.
The State of Georgia’s defiance of the US Supreme Court’s authority did not stop in the
19th century; indeed, it continued to display open disobedience to the implementation of
Brown I and Brown II. As is well known, in 1952 the US Supreme Court decided to study
four cases related to racial segregation in American public schools. 301 Ultimately, the
consideration of the consolidated case was postponed until 1954. In Brown I, the US
Supreme Court asserted its authority over the subject matter in the following terms: “The
plaintiffs contend that segregated public schools are not ‘equal’ and cannot be made
‘equal,’ and that hence they are deprived of the equal protection of the laws. Because of
the obvious importance of the question presented, the Court took jurisdiction.” 302
The US Supreme Court’s stress on the lack of equality in racially segregated school
districts stemmed from a prior US Supreme Court case, Plessy v. Ferguson, in which the
300
See ibid at 541.
301
Brown et al. v. Board of Education of Topeka et al. 344 U.S. (1953) 1 at 1 and 2 [Brown v. Board]. The
five states that were party to the process in Brown were Delaware, Kansas, South Carolina, and Virginia.
Although Georgia was not included within these states, the ruling of the US Supreme Court applied to all
states permitting segregation in public education. In the words of the US Supreme Court “we hold that the
plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the
segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth
Amendment.” [Emphasis added].
302
See ibid at 488 [emphasis added].
86
US Supreme Court upheld racial segregation by finding that the systems of segregation
used by states and localities were “separate but equal.” 303
In Brown I, the US Supreme Court also argued that the cases were before it under
the authority created in 28 U.S.C. § 1253 304 (Judiciary and Judicial Procedure, Part IV -
Jurisdiction and Venue Chapter 81 - Supreme Court). This section established the
jurisdiction of the US Supreme Court to hear direct appeals from decisions of three-judge
panels, 305 as was the case in the four lawsuits regarding racial segregation. In so
asserting, the US Supreme Court claimed jurisdiction and, thus, affirmed its authority to
decide the cases.
In the 1955 Brown II case, the US Supreme Court gave power to the federal
district courts to implement racial desegregation in the face of strong opposition to
desegregation on the State and local levels in many areas across the United States. The
US Supreme Court was clear on the fact that there could be no opposition to this ruling,
although accommodation to local circumstances could be necessary. Indeed, the US
Supreme Court admitted that lower courts acted as equity courts, but made it clear that “it
should go without saying that the vitality of these constitutional principles [of no
discrimination] cannot be allowed to yield simply because of disagreement with them.”306
And the US Supreme Court emphasised that, despite their equitable powers, “the courts
will require that the defendants make a prompt and reasonable start toward full
303
Plessy v. Ferguson, 163 U.S. 537 (1896) [Plessy v. Ferguson].
304
See Brown v. Board, supra note 301 at 286, footnote 1.
305
“Except as otherwise provided by law, any party may appeal to the Supreme Court from an order
granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action,
suit or proceeding required by any Act of Congress to be heard and determined by a district court of three
judges.” 28 U.S.C. § 1253.
306
349 U.S. 294 (1955), at 300.
87
compliance.” 307 Finally, the US Supreme Court left no doubt about the fact that the
federal district courts retained jurisdiction over implementation until the decision was
equitably implemented: “During this period of transition [in which the courts will attend
to local characteristics], the courts will retain jurisdiction of these cases.” 308
In addition to the express assertions of jurisdiction over the racial segregation
cases, each time the US Supreme Court heard these cases, it tacitly reiterated its
jurisdiction over them. In fact, Brown v. Board of Education of Topeka was argued on
December 9, 1952, reargued on December 8, 1953, and decided on May 17, 1954, when
the US Supreme Court determined that racial segregation in public education was
unconstitutional. Additionally, the final remedy was issued in 1955, when, as explained
above, the decision was remanded to the federal district courts in order for them to
examine the local particularities of school segregation and the good faith of school
authorities in the implementation of school desegregation with all deliberate speed.
Many states in the American South were unhappy with the US Supreme Court’s
ruling. 309 I focus on the open defiance of the State of Georgia and its authorities to Brown
I and Brown II which was specially blatant. After the decision of the US Supreme Court
was delivered, public authorities from the State of Georgia ferociously opposed the
desegregation order and, simultaneously, the authority of the US Supreme Court to
decide the subject matter of the case. Herman Talmadge, then Governor of Georgia, after
learning of Brown, asserted: “The Court has thrown down the gauntlet…Georgians
accept the challenge and will not tolerate the mixing of the races in the public schools or
307
Ibid.
308
Ibid at 301.
309
Among other southern states, Florida, Mississippi, and Kentucky rejected the ruling.
88
any of its tax-supported public institutions.” 310 Indeed, the Governor and his political
machine promoted a “massive resistance” to the US Supreme Court’s decision within the
State of Georgia. 311
Marvin Griffin, then Lieutenant Governor of Georgia and later the successor to
Talmadge, promised the electorate that races would never mix “come hell or high water!”
In the same vein, the State of Georgia’s Attorney General, Eugene Cook, openly asserted
that Brown II did not apply to Georgia and would not be enforced “until we are forced to
abandon [segregated schools] by legal action applied to every school in the state.” 312
This decision was backed by the State of Georgia’s representatives in the United
States Senate, along with other Southern state representatives, in the “Declaration of
Constitutional Principles” or “The Southern Manifesto,” a document that promoted
disobedience to the US Supreme Court’s ruling. 313 In the Southern Manifesto it was
asserted that: “The unwarranted decision of the Supreme Court in the public school cases
is now bearing the fruit always produced when men substitute naked power for
established law.” 314 Thus, for the signatory representatives, the decision of the US
Supreme Court was an exertion of “naked power” while the Southern opposition was
established law. Therefore, denial of the US Supreme Court’s authority and simultaneous
assertion of the authority of the opponents of the decision was clear. The Southern
Manifesto also asserted that the Constitution had not given any power to the US Supreme
310
Kevin Michael Kruse, White Flight : Atlanta and the Making of Modern Conservatism (Princeton, N.J.:
Princeton University Press, 2005) at 131.
311
Ibid.
312
Ibid.
313
Ibid at 132.
314
See The Southern Manifesto, online: American Radio Works
<http://americanradioworks.publicradio.org/features/marshall/manifesto.html>.
89
Court to decide the case—an assertion that sought to deny jurisdiction to the US Supreme
Court - but rather had given the jurisdiction to regulate education to the States, an
assertion of State authority:
We regard the decisions of the Supreme Court in the school cases as a clear
abuse of judicial power. It climaxes a trend in the Federal Judiciary
undertaking to legislate, in derogation of the authority of Congress, and to
encroach upon the reserved rights of the States and the people. The original
Constitution does not mention education. Neither does the 14th Amendment
nor any other amendment. The debates preceding the submission of the 14th
Amendment clearly show that there was no intent that it should affect the
system of education maintained by the States. 315
The Southern Manifesto ended by appealing to the Constitution and
simultaneously backing the massive resistance efforts to the US Supreme Court’s
decision. This Manifesto asserted:
We reaffirm our reliance on the Constitution as the fundamental law of the

land. We decry the Supreme Court's encroachment on the rights reserved to
the States and to the people, contrary to established law, and to the
Constitution. We commend the motives of those States which have declared
the intention to resist forced integration by any lawful means.
…We pledge ourselves to use all lawful means to bring about a reversal of
this decision which is contrary to the Constitution and to prevent the use of
force in its implementation. 316
Georgian public authorities did not limit their opposition to the US Supreme
Court’s decision to polemics. As a strategy for concrete resistance, and after asserting
that “we can separate schools regardless of the U.S. Supreme Court,” 317 Governor
Talmadge, along with Marvin Griffin and Ernest Vandiver, Griffin’s successor,
implemented the “private-school plan.” This plan consisted of the State of Georgia giving
bonuses to students to pay their tuition at the private school of their choice instead of
315
Ibid.
316
Ibid.
317
Kruse, supra note 310 at 132.
90
using tax money to sustain public education. 318 As private schools were not covered
under the Brown decisions, this was a way to ensure and encourage the continuation of
racial segregation in education. During Vandiver’s electoral campaign, he promised that
if he was elected governor, no black student - “no, not one!” - would attend a white
school. 319 Vandiver based his segregationist discourse and the “private-school plan” on
the constitutional guarantees of “freedom of association” and “freedom of choice.” He
proposed an amendment to the Constitution of the State of Georgia according to which
“freedom from compulsory association at all levels of public education shall be preserved
inviolate.” In the end, the proposed amendment obtained enough support for enactment
within the State of Georgia’s Constitution. 320
Within the State of Georgia, there was also disobedience at the local level. After
the US Supreme Court decision, the then Mayor of Atlanta announced that “the city of
Atlanta is now engaged in defense of segregation in the public schools of Atlanta…and
we expect to continue to defend that suit.” 321 Moreover, after open resistance, a method
of token desegregation was used by local authorities in the State of Georgia, in particular
by Atlanta’s mayor. This strategy involved keeping school integration to a minimum 322 in
order to avoid further federal interference. Forms of keeping school desegregation at a
token level included provisions allowing communities to close schools ordered to
desegregate, pupil placement plans, and tuition grants to pay private schools. However,
318
Ibid at 132.
319
Ibid at 146.
320
Ibid at 162. See Georgia Constitution of 1976, Section VIII, Paragraph I. Freedom of Association,
online: <http://georgiainfo.galileo.usg.edu/con1976h.htm>.
321
Kruse, supra note 310 at 135.
322
Ibid at 151.
91
this desegregation attempt was said to be more a public relations ploy than an actual plan
to encourage and implement racial integration.323
As is explained in greater detail below, the abovementioned cases clearly have the
constitutive and complementary elements of SLP.
2.3 Constitutive Elements of State Legal Pluralism
2.3.1 Location at the Governmental Structure of the State
The first element of SLP is institutional. In order for SLP to exist, this phenomenon must
be circumscribed to the governmental structure of the state. Before limiting the scope of
SLP to the governmental structure of the state, however, it is necessary to establish that
legal pluralism is a phenomenon that can take place within this structure.
Although it has become fairly common for legal scholars to pay attention and give
credit to the idea of legal pluralism, the concept of SLP remains foreign to some scholars
and sounds contradictory to others. This is because, as is explained below, legal
pluralism focuses on recognising law outside of the state and, simultaneously, does not
focus on law coming from the state. From a mainly descriptive perspective, 324 several
323
Ibid at 141.
324
As Woodman and Griffiths assert, legal pluralism should be empirically based and descriptively driven.
For a detailed explanation of the descriptive aim of legal pluralists, see Woodman, "Ideological Combat ",
supra note 17; and John Griffiths, "What is Legal Pluralism?" (1986) 24 Journal of Legal Pluralism and
Unofficial Law 1 at 1 and 2. Nonetheless, as Santos adduces:
the designation ‘legal pluralism’ has a definite normative connotation, in that whatever
is designated by it must be good because it is pluralistic or, in any case, better than
whatever is its non-pluralistic counterpart. This connotation may be a source of error and
should therefore be avoided. To my mind, there is nothing inherently good, progressive,
or emancipatory about ‘legal pluralism’. Indeed, there are instances of legal pluralism
that are quite reactionary.
(Santos, Toward a New Legal Common Sense, supra note 281 at 89). Furthermore, for Tamanaha, any
definition of law, even that of legal pluralists, is an ideological construct (see Tamanaha, “The Folly”,
supra note 13 at 196). Tamanaha questions the ability of legal pluralists to actually describe the facts since
92
legal pluralists have claimed that state law, understood as the static centralist unitary
version of law that comes from top to bottom, from a hierarchical state to a given society,
disregards the coexistence of numerous state and non-state dynamic legal orders within a
social field. 325 In this vein, for example, state law disregards the important role that
religious beliefs, such as those held by Muslims and Jews, have in the actual regulation of
daily lives. Accordingly, for legal pluralists the archetype of state legal centralism is a
myth or an illusion. 326 Some legal pluralists assert that, along with societal normative
systems, the normative system of the state is one among equals. 327
One of the main critics of the focus of legal studies on the state is John Griffiths.
He emphatically criticises legal theorists who have tried to define law descriptively as the
now it is recognized that even hard scientists describe phenomena based on “shared paradigms.” Ibid at
198. Moreover, from their external perspective, legal sociologists usually challenge the presuppositions that
lie under lawyers’ internal understandings. Ibid at 197.
325
John Griffiths defines law by contrast. Law is not the law of the state. See Griffiths, “What is Legal
Pluralism?” 24 J. Legal Pluralism & Unofficial L. 1 1986 at 1. Legal pluralism is an attribution of a social
field where more than one source of law or more than one legal order—law understood as social self-
regulation—is present or observable (see ibid at 1 and 38). But see Tamanaha, "The Folly", supra note 13
at 211-212 (arguing for the application of the term “law” not to all normative orders but only to those that
are state-like). For Tamanaha, the extension of the concept of law only to state-like orders lessens the
importance of state law and raises the other orders by borrowing from the prestige of state law (ibid at 205).
Nonetheless, in a later text, Tamanaha questions the equation of law with “normative systems” or “legal
orders” from what he calls a ‘conventional’ approach to legal pluralism. In this approach, law is what
people conceive it to be. The author points out that not all that is recognized by people as law conforms to
pre-established definitions of law (e.g. natural law), not all norms are part of a system (e.g. moral norms)
and, more importantly, not all normative systems are seen by people as law (for example, a university’s or
sport league’s normative systems). See Brian Z. Tamanaha, A General Jurisprudence of Law and Society
(New York: Oxford University Press, 2001) at 198 [Tamanaha, A General Jurisprudence].
326
See Griffiths, supra note 325 at 4. But see Tamanaha, "The Folly", supra note 13 at 195, 196 (arguing
that the legal pluralist assertion that law is conceived as a centralist hierarchical institution is mistaken. This
version disregards, for example, the legal realists’ attacks on what law is).
327
Roderick Macdonald points out that “just as there is no transcendent virtue in the State legal order, there
is also no transcendent virtue in non-State legal orders…” Roderick A. Macdonald, "Metaphors of
multiplicity: Civil Society, Regimes and Legal Pluralism" (1998) 15:1 Arizona Journal of International and
Comparative Law 69 at 87 [Macdonald, “Metaphors of Multiplicity”].
93
law of the state, and he blames the centralist ideological background of these theorists for
this mistake. 328
Nevertheless, as Tamanaha argues, it does not follow from the focus of social
scientists on state legal institutions that they are praising this as the only possible form of
law. It can simply be concluded that this is one of their recurrent objects of study. 329
Moreover, as Woodman argues, the fact that one decides to describe the existence of SLP
does not entail ideological support for the centralisation of law in the state. For
Woodman, neither the description of legal pluralism in general nor of SLP in particular
necessarily involves an ideology. 330
Griffiths goes further and denies the possibility of SLP since he considers that
what is observed within the state is differences of legal doctrine and not empirical
facts. 331 Moreover, Griffiths finds that the existence of legal pluralism within one legal
order, mainly within what he conceives as the centralist state, is inconsistent.332 What
Griffiths sees in the existence of several norms applicable to a purportedly unitary
328
Griffiths, supra note 325 at 3 and 4. See also Macdonald & Kleinhans, "What is a Critical Legal
Pluralism?", supra note 14 at 35-37, 41 and 44 (pointing out the dangers of focusing on state-form-
dependent empiricism; that is to say, the empiricism that, without inquiring about individuals’ concepts of
law, imposes the state as a form of parameter of comparison on which to locate normative systems.).
Macdonald and Kleinhans propose instead a concept of legal pluralism in which “it is knowledge that
maintains and creates realities. Legal subjects are not wholly determined; they possess a transformative
capacity that enables them to produce legal knowledge and to fashion the very structures of law that
contribute to constructing their legal subjectivity” (ibid at 38). Moreover, each legal subject comprises
multiple subjects and, thus, has the ability to imagine his or her world in multiple ways (ibid at 42). Each
subject contrasts his or her narratives of law with those of other subjects, not with an external observer’s
idea of law (ibid at 46).
329
Tamanaha, "The Folly", supra note 13 at 197.
330
Woodman, "Ideological Combat", supra note 17 at 48, 49.
331
Griffiths, supra note 325 at 9-10.
332
Ibid.
94
situation is a lack of legal uniformity, or simple diversity, but not empirically verified
legal pluralism. 333
Woodman responds to Griffiths by claiming that state power usually has material
effects in the social world, which can be empirically verified. Consequently, state law
will coincide with a description of some aspects of social reality.334 Furthermore, as could
be argued in the two cases above, there is also a social reality of state agents or state
institutions—a social reality based on how these agents and institutions actually
behave—that goes beyond legal doctrine and can be empirically verified as an example
of irresoluble tension and plurality within the state. In this vein, different public
institutions can be considered semi-autonomous social fields. Once plurality within the
state is accepted, social observation of the inside of allegedly unitary legal orders can be
further developed. 335
Vanderlinden’s latest writings also question the possibility of pluralism within the
state. 336 In his more recent work, Vanderlinden denies the possibility of pluralism within
a system due to an alleged internal contradiction in terms: the state is a system, and a
system is unitary in nature. 337 As Woodman has pointed out, however, Vanderlinden’s
333
Ibid at 11, 14.
334
See Woodman, "Ideological Combat", supra note 17 at 35. For a complementary response to Griffiths,
see Woodman, "The Idea of Legal Pluralism", supra note 279 at 10 (arguing that the only difference
between Griffiths’s strong and weak, or state, legal pluralism is that in the latter different bodies of law are
parts of a wider normative body, while in strong legal pluralism different bodies of law have different
sources).
335
See Woodman, "Ideological Combat", supra note 17 at 50.
336
An idea he defended in Vanderlinden, "Le Pluralisme Juridique", supra note 18.
337
Vanderlinden, "Return to Legal Pluralism", supra note 278 at 152. Vanderlinden argues that:
Tout système juridique est moniste dans son totalitarisme. Ceci exclut l’existence de
systèmes juridiques pluralistes. Le pluralisme n’en est pas moins la caractéristique
essentielle du juridique. Ce pluralisme, qui ne peut se situer au niveau du système social,
se rencontre à celui de l’individu faisant nécessairement partie de systèmes sociaux,
donc de systèmes juridiques, ce qui justifie sa qualification de sujet de droits….Le
pluralisme juridique est la situation, pour un individu, dans laquelle des mécanismes
95
concept of pluralism rules out by definitional fiat the possibility of pluralism within a
regulatory system. By unjustifiably positing a system as indivisible, any possible internal
plurality is excluded. 338 Woodman argues that Vanderlinden’s problem lies in
considering the state as a system, a concept whereby Vanderlinden presupposes the
impossibility of internal division. But, as in set theory, it is impossible to deny a priori the
existence of subsets; there are no indivisible units, even at the level of the state.
The possibility of legal pluralism within the state is reinforced if one takes into
account that, as legal pluralists argue, all coexisting normative systems are markedly
heterogeneous, multiple, dissonant and fluid from within. 339 Consequently, concepts of
justice, for example, are numerous within seemingly organised institutional settings. 340
This plurality that unavoidably permeates normative systems from within is inevitable at
the public level. For example, Harry Arthurs recalls the highly decentralised state of
affairs in English administrative law in the nineteenth-century as a case of legal
pluralism. 341
In favour of the recognition of cases of SLP, Roderick Macdonald has pointed out
that the common division made by legal pluralists between official and non-official (or
manifest and latent, or express and implicit) law is insufficient. Macdonald argues that
juridiques relevant d’ordonnancements différents sont susceptibles de s’appliquer à cette

situation. (Vanderlinden, "Vers une Nouvelle Conception", supra note 278 at 583)
Note the clear influence of the writings of Griffiths’s “What is Legal Pluralism” on Vanderlinden’s new
approach. In his work, Griffiths sees systems as closed units.
338
See Woodman, "Ideological Combat", supra note 17 at 46.
339
See Roderick A. Macdonald, "Critical Legal Pluralism as a Construction of Normativity and the
Emergence of Law" in Andrée Lajoie et al., eds, Théories et Émergence du Droit: Pluralisme,
Surdetérmination et Effectivité (Montreal: Les Éditions Thémis 1998) at 23 [Macdonald, “Critical Legal
Pluralism”] (for plurality within seemingly homogeneous normative regimes).
340
Macdonald, "Metaphors of Multiplicity", supra note 327 at 77.
341
H.W. Arthurs, 'Without the Law' Administrative Justice and Legal Pluralism in Nineteenth-Century
England (Toronto and Buffalo: University of Toronto Press, 1985).
96
official institutions are more heterogeneous than is apparent from this dual categorisation.
Within the state, there are many manifestations of normative institutions, understood as
organisations in which power is exercised at the direction of a norm-generating legitimate
authority. 342 Some of these institutions, moreover, rather than being isolated, interact and
overlap without a fixed hierarchy among them. 343 In similar vein, Ido Shahar argues that
the state, far from being a monolithic entity, is as a decentralized group of institutions
that constantly interact in harmonious or conflicting ways. 344
As is evident in the cases involving the State of Georgia, far from delivering
univocal orders, competing state public institutions simultaneously issue or deliver
diverse and sometimes contradictory decisions on the same issue. When simultaneous
and interactive wills to regulate arise within the state, and the regulatory agents are
public, one is witnessing SLP. 345
One might object that, in the Brown cases, the State of Georgia was acting as a
collective private actor and, therefore, a case of SLP did not exist. It is true that, in the
Brown cases, there was private resistance and that government actors were influenced by
private agents. For example, in the State of Georgia numerous citizens acting as private
agents took part in the HOPE (Help Our Public Education) movement. The movement
342
Macdonald, "Les Vieilles Gardes", supra note 14 at 242.
343
See ibid at 245. Accord Macdonald & Kleinhans, "What is a Critical Legal Pluralism?", supra note 14 at
41.
344
Ido Shahar, "State, Society and the Relations Between Them: Implications for the Study of Legal
Pluralism" (2008) 9 Theoretical Inquiries in Law 417 at 420 and 434. Note, however, that Shahar
mistakenly finds SLP in the interaction of religious law and state law.
345
See Jean-Guy Belley, "Le Pluralisme Juridique de Roderick Macdonald: une Analyse Séquentielle", in
Guy Rocher, Roderick Macdonald, André Lajoie and Richard Janda, eds, Théories et Émergence du Droit:
Pluralisme, Surdétermination et Effectivité (Montreal: Les Éditions Thémis, 1997) at 64 (the terminology
of “interactive wills” employed by Belley in a context of legal pluralism is reasonable if one considers that
not all interactions are harmonious. Accordingly, eventual conflicts within legal pluralism are a form of
interaction).
97
began as a result of the concerns of some middle-class white housewives regarding the
“school situation.” What began as small meetings of white housewives ended up, in 1958,
in massive rallies against desegregation. 346 Despite the wide participation of private
individuals, a large number of officials of the State of Georgia, within their official
regulatory capacities, chose to resist the implementation of the US Supreme Court’s
decision. Additionally, the public regulation of a subject matter of daily life such as
school education can lead to a private agent’s reaction to, interest in, and influence on the
publicly regulated issue when private agents disagree with the content of public
regulation, as occurred with the HOPE movement.
It could also be argued that in both the Brown cases and the Worcester case, the
State of Georgia’s reaction was a mere refusal to be subject to federal law with which it
disagreed. This assertion, nonetheless, is inaccurate. First, a disposition to regulate a
particular subject matter, and consequently to disobey another authority who seeks to
regulate the same, can result in a disagreement with the decision of the other institution,
but this does not mean that the disobedient institution is simply acting outside of “the
law.” One central claim of SLP is that state institutions can be in tension with regards to
which institution is supposed to regulate certain matters and what the content of the
applicable law is. Therefore, it is not possible to talk about “the law” as a singular and
exclusive phenomenon, since the content of law cannot be determined by pointing to
which institution is authorised to have the final say over a disputed issue, as will be
explained below under element (d) of SLP. For SLP, multiple regulations in tension
346
See Kruse, supra note 10 at 138.
98
within the state structure are simultaneously considered law. Accordingly, Georgia’s law
was as much law as the US Supreme Court’s decisions.
Also, it could be said that the State of Georgia had generally accepted the
authority of the US Supreme Court, but in these cases did not like the final decisions
issued by the US Supreme Court and so refused to implement them, which would
implicitly deny that the cases are instances of SLP. But it does not follow from the fact
that the State of Georgia recognised the US Supreme Court’s authority on other subject
matters that in the cases under study there was not an episode of SLP. Pluralism within
the state can be dynamic, and thus casuistic and temporary.
Some argue that, within a general legal pluralist approach to law, the response to
the question of what is “law” is arbitrarily determined. 347 In contrast to general legal
pluralism’s problem of defining what is and what is not law, 348 the description of SLP
offered here does not include the difficulty of identifying the state’s institutional
normative discourses as law. 349 The greatest difficulty lies in identifying judicial
decisions as general sources of law in a civil law system. And yet, at least in their inter
partes effect, civil law lawyers consensually identify judgments as a source of law. For
civil law lawyers, the judgment is law for the parties to the process. Following H.L.A.
347
See Richard Janda, "Beyond Legal Pluralism", in Guy Rocher, Roderick Macdonald, André Lajoie and
Richard Janda, eds, Théories et Émergence du Droit: Pluralisme, Surdétermination et Effectivité (Montreal:
Les Éditions Thémis, 1997) at 77.
348
See e.g. Tamanaha, A General Jurisprudence, supra note 325 at 172-205 (for a comprehensive
discussion of this problem).
349
As Tamanaha observes, “[current definitions of law, including those of legal pluralists, encompass] state
law as one of its members.” He finds that this is evidence of “the versatile nature of state law, and it is a
product of the fact that state law served as the model for most theorists when formulating their abstract
concept of law.” (Tamanaha, A General Jurisprudence, supra note 325 at 192). Tamanaha asserts that there
is one non-discussable shared point on which legal pluralists have agreed: the fact that they reject the idea
of legal centralism (ibid at 175). It does not follow from the former assertion, however, that these scholars
deny the status of law to state regulation, among other forms of law. Moreover, a state’s institutions
identify their commands as legal ones, which will be enough to give them the status of law from a
consensualist approach to the concept of law.
99
Hart, 350 it could be said that, from an internal point of view, civil law lawyers use and
accept the remedy as a guide of conduct, as a basis for demands for conformity in case of
disobedience, and this demand for conformity is seen by other lawyers as well founded.
That the state is a site where law takes place makes SLP a field worth studying for legal
scholars.
The Georgian cases confirm the abstract possibility of SLP and the actual
presence of different applicable laws within a single state. In these cases, two public
institutions of the United States of America, one on the federal level and the other as a
member state, were involved in undeniable conflict. This controversy clearly took place
within one state: the United States of America. The fact that the U.S.A. is a federal state,
and that within this type of regime member states have considerable autonomy, does not
change the claim regarding the possibility of legal pluralism within the larger, federal
state. In an “ideal” federal state, federal and member state jurisdictions would be so
clearly divided that no tension would exist between the member state and the federal state
and, if a tension did exist, the supreme court or a previously designated superior body
would have the authority to decide the case and have its decisions implemented without
further conflict. This theoretical aspiration, however, is eroded by the presence of
irresoluble conflicts over jurisdiction at the local and federal level.
I have stated above that it is possible to have legal pluralism within one state.
Now it is important to note that the phenomenon of SLP takes place exclusively within
the state context. That is to say, there is not a case of SLP when one unitary state
coexists, peacefully or tensely, with laws coming from contexts different from the state
350
H.L.A. Hart, The Concept of Law, First ed (Oxford: Clarendon Press, 1997) at 89- 91 (for the concept of
the internal point of view regarding what a rule is).
100
(e.g. with religious law in a state that is not officially ruled by religious law). If this were
the case, the phenomenon would be at most one of legal pluralism in general but not SLP.
Neither would SLP exist as a result of a tension or a conflict between or among states.
Nor would a pure case of SLP result from a situation in which several tensely coexistent
public institutions (such as the federal and state institutions in the Brown cases) have
differences with non-state institutions. This could be a phenomenon of mixed state and
general legal pluralism but not one of SLP exclusively.
For further illustration of the institutional element of state legal pluralism, below,
I present cases that have been classified as SLP, but are actually examples of the unitary
notion of a state. Within this approach, Vanderlinden, in his early work, asserted that
there was legal pluralism when the state simultaneously recognised different legal
regimes (e.g. statutory law and customary law). For the early Vanderlinden, recognition
by a single authority such as the state does not deny pluralism but makes the situation one
of controlled legal pluralism. 351 The problem with this version of SLP is that it sees the
state as an indivisible institution that recognises external law, and that the “recognised”
law is, by definition, dependent on the state, which denies plurality. The “legality” of the
recognised legal field will depend on the will of the state, thus making the former a
subordinate of the latter, and not an instance of an independent source of law. 352
351
Vanderlinden, "Le Pluralisme Juridique", supra note 18 at 47-48.
352
Vanderlinden himself later re-evaluated the idea of legal pluralism derived from state recognition. He
hesitated about the validity of the approach of SLP as recognition by considering the fact that when
reasoning in terms of a hierarchy of one legal order vis-à-vis others, we cannot talk about pluralism. On the
contrary, legal pluralism considers that systems of law—the state’s included— operate on equal levels and
thus they are not in the position to determine whether one of the other systems constitutes law. See
Vanderlinden, "Vers une Nouvelle Conception", supra note 278 at 577. Regarding his rejection of the
concept of hierarchy, Vanderlinden also reconsidered his first definition of legal pluralism in which he
stated the concept of society as a site where different legal mechanisms are applied. To talk about a society
is to privilege this site vis-à-vis other sites, thus attributing to it a superior status. See ibid at 579. If any
hierarchy is to be given to any legal order it is the individual who is supposed to confer this in practice
101
In addition to the inapplicability of SLP to cases in which the state validates or
recognises law external to it, SLP does not exist when one unitary state is in tension or
conflicts with another unitary state—this is a difference of public international law. In
this situation, the idealised notion of a unitary state is not questioned. The state continues
to speak with one voice and the site of divergence is outside its territory.
2.3.2 Involvement of More than One Public Authority
SLP sees the state as a complex institution within which several public institutions are
entitled to rule and, thus, can overlap and differ in regards to the exercise of their
functions. For a case of legal pluralism to exist, two or more public institutions must be
interested in exercising jurisdiction over a particular case. When a single public
institution changes its stance over time, such as the case of a court overruling a previous
decision or a constitutional amendment approved by Congress, there is no pluralism
within the state with respect to this matter because, in this given moment, the state
presents only one unified position over a subject matter.
Moreover, consistent with the first constitutive element of SLP, for a case of SLP
to exist the institutions in conflict must be public institutions. If the conflict exists
between a privately authorised decision-making authority and a public body, the case will
not meet the criteria of SLP developed above. This would be the case, for example, when
the ruling of a privately authorised arbitration tribunal conflicts with a ruling of a state
institution.
when she chooses to apply one of the competing legal mechanisms to regulate her conduct. If the selection
is made by a given system within which the different choices are located, one would be facing a totalitarian
monism potentially inherent in any system. See Ibid at 581. But, as Woodman says, Vanderlinden’s
problem here lies in the fact that he denies all possibility of a system’s being plural.
102
The US Supreme Court’s analysis of Plessy v. Ferguson within its decision in
Brown v. Board of Education of Topeka illustrates an example of when this second
element is not met. Although the US Supreme Court overruled Plessy v. Ferguson 353
when it held that state racial segregation in public schools based on the doctrine of
separate but equal violated the American Constitution, 354 this change in legal doctrine did
not amount to legal pluralism. An overruling court decision is a typical example of the
idea that there can only be one law applicable at a time in one state—an idea that SLP
questions. When the US Supreme Court decides to change its mind, the previous case law
is no longer good law. Thus, with respect to the relevant subject matter, no competing
norms simultaneously exist.
I have stated that a case of SLP needs the presence of more than one public
institution. Now, if two or more offices of one public institution held different answers to
a given problem at the same moment, and both offices claim to have authority over the
issue, this situation will also meet the second element of SLP.
2.3.3 Presence of Tension over a Decision on the Same Subject Matter
It is not enough to have several public institutions acting within the state with a harmonic
division of tasks. For a case of SLP to exist, two or more public institutions must claim
the right to rule on an identical subject matter and must aim to retain this right. This
simultaneous will to retain authority leads to tension. Accordingly, if there are two or
more public authorities that have different ideological perspectives, but they have not
353
163 U.S. 537 (1986).
354
According to the US Supreme Court “Any language in Plessy v. Ferguson contrary to this finding is
rejected” Brown v. Board, supra note 301, at 494 – 495.
103
been brought into tension through the existence of an actual case, there will be no SLP,
but only an abstract ideological difference in a unitary state.
This would be the case where the local government is liberal and the federal
government conservative but, respecting the constitutional division of powers, they do
not claim jurisdiction over the same issue. Alternatively, if public authorities claim
jurisdiction over the same issue in abstract terms but have not had an opportunity to
exercise this jurisdiction over an actual case, SLP does not arise. That would be the case
when there is a difference between the federal government and a member state over
whether a member state has extra-territorial jurisdiction over its residents, but none of the
residents within the member state have yet traveled outside the state. On the contrary, the
third element of SLP was clearly present when equity courts and common law courts had
simultaneous jurisdiction and both claimed the right to rule over the same case, as
Vanderlinden observes. 355
The constitutive element under analysis was neglected by early studies of SLP.
For some authors, the fact that there were diverse regulations within the state to regulate
different issues was enough to demonstrate the existence of SLP. For example, John
Gilissen considers the simultaneous regulation of one form of conduct by criminal and
disciplinary law to be a case of SLP. While statutory law integrally regulates criminal
law—due to the principle of nullum crimen sine lege—it leaves normative room for the
customs and practices of different professions in the case of disciplinary law. 356 Gilissen
also finds traces of legal pluralism within state law in the fact that, in a civil law system,
355
Vanderlinden, "Vers une Nouvelle Conception", supra note 278 at 25.
356
Gilissen, supra note 277 at 8-11.
104
le droit civil and le droit comercial accept different types of evidence to prove the same
fact, the latter being more open to diverse types of evidence. 357
Woodman classifies Gilissen’s approach as one of SLP. 358 Note, however, that as
Griffiths asserts, Gilissen’s examples of SLP are difficult to classify as such since, in the
case of disciplinary law or rules pertinent to the exercise of a given profession by an
individual, Gilissen relies on the centralised recognition of custom by state law in the
genesis of custom as law. 359 Moreover, Gilissen does not show whether several
manifestations of state law are simultaneously contradictory or simply regulate different
situations under different parameters.
Like Gilissen, the early Vanderlinden claimed that legal pluralism existed when
the state had different legal mechanisms to be applied to what he calls identical
situations. 360 According to Vanderlinden, there is plurality when there is different
regulation of a social group by the same institution because this group is considered
inferior vis-à-vis another group. As an example, Vanderlinen cites the different
regulations for children and adults under the same circumstances in criminal and civil
matters. 361 He places the differential public law regulation of minority group rights due to
their salient linguistic, racial or gender features within the same category of pluralism. 362
And yet, the above examples are not cases of legal pluralism since the former
examples group the application of different treatment for different situations under the
centralised notion of an equal protection clause (i.e. equal treatment for equal situations
357
Ibid at 12.
358
Woodman, "Ideological Combat", supra note 17 at 22.
359
Griffiths, supra note 325 at 10-11.
360
Vanderlinden, "Le Pluralisme Juridique", supra note 18 at 19.
361
See ibid at 23.
362
Ibid at 24.
105
and different treatment for different situations). Thus, it is a central monolithic authority
(i.e. the state conceived as indivisible unit) that provides different treatment in different
situations. Different authorities which determine how one or plural situations must be
regulated do not exist, as legal pluralists will require for pluralism to exist.
For SLP to exist, tension, but not conflict, must exist. Before conflict exists as a
result of SLP, the simultaneous claims of authority by public institutions may co-exist in
a strained mutual relation that may appear peaceful but is prone to collapse given the
opposing claims of authority on an actual case. To see this tension by way of illustration,
suppose the State of Georgia accepted the US Supreme Court’s ruling not because it
thought that the US Supreme Court had authority to decide the matter, but because States
using segregation would no longer have access to federal funding of local initiatives.
Since in this hypothetical the State of Georgia never recognises the right of the US
Supreme Court to rule over the issue, but rather maintains its own right to do so, at any
moment segregation is liable to return. Conflict, of course, can flow from such a tension,
and makes SLP readily visible, as illustrated by the State of Georgia’s massive resistance
to Brown and its open opposition to implementing Worcester.
Mere tension can also develop into accommodation where the tension does not
disappear but its intensity (or likelihood to produce conflict) diminishes. Accommodation
implies a willingness to deal expressly with the tension in order to achieve a compromise
that minimises strain. In any accommodation there is an agreement that benefits the
parties in tension and allows them to achieve a measure of détente. Tension does not
disappear, however, since the parties do not renounce their claim to authority when they
106
accommodate one another. Since tension does not disappear in the case of
accommodation, so understood, the possibility of future conflict is always present.
Tension, then, can lead to conflict or be softened by accommodation. But tension
is significant in its own right. One can see the significance of tension by contrasting it
with Philipp Pettit’s concept of domination. Pettit argues that the republican conception
of freedom is the absence of domination. Domination is the mere capacity to intervene
arbitrarily in the choices others have the ability to make. 363 Domination does not require
arbitrary interference per se, but the mere ability to interfere arbitrarily. A slave is no less
a slave, and thus is no less subject to dominion, if her master treats her kindly and does
not impose on her. 364 It is the mere capacity of the master to impose his will arbitrarily
that makes the slave’s condition one of domination. In the case of SLP, legal pluralism
exists when the difference between public institutions amounts to an actual possibility of
conflict between them, a possibility that exists even if the institutions do not actually
come into conflict with one another.
To see accommodation, by way of illustration, consider the Brown II formula of
implementation. In Brown I, the US Supreme Court had ruled that racial segregation was
against the Constitution. When the US Supreme Court tailored the remedy in Brown II,
however, it made clear that this process of desegregation should be done “with all
deliberate speed.” The US Supreme Court was aware of the difficulty of implementation
but at the same time did not want to dilute its message of authority regarding the
constitutional prohibition of school segregation. Inclusion of the formula “with all
363
Philip Pettit, Republicanism: A Theory of Freedom and Government (Oxford: Oxford University Press,
1999) at 24, 52, 54, 63 and 79.
364
Ibid at 22, 32-33, 41 and 64.
107
deliberate speed” asserted the authority of the US Supreme Court but simultaneously
recognised that the implementation of its judgment required some deference to state local
authority. Reading the US Supreme Court’s formula as narrowly as possible against a
background narrative of open resistance to desegregation, the State of Georgia’s local
authorities, in particular Atlanta’s mayor, used a method of token desegregation. This
strategy involved acts of desegregation but, simultaneously, keeping school integration to
a minimum 365 in order to avoid further federal interference. Accordingly, this
desegregation attempt was a public relations ploy rather than an actual plan to encourage
and implement racial integration. 366 Despite the State of Georgia’s slow pace, the US
Supreme Court’s implicit assertion of a right to decide how fast the judgment must be
implemented opened a space of accommodation between the authority of the US
Supreme Court and the purported authority of this segregationist State. In sum, the
difference between mere tension and accommodation lies in the fact that accommodation
implies an explicit understanding between the parties in tension that wish to avoid
conflict, but nonetheless retain a claim of authority over the disputed subject matter.
A state of accommodation resembles Rawls’s condition of modus vivendi. For
Rawls, parties in conflict can agree that they will respect or accept certain authorities as
far as this agreement benefits them. If conditions change and the arrangement is no
longer favourable to self or group interest, the arrangement may be broken. 367 Thus,
although a pact can bring peace, in a case of modus vivendi there is inherent tension since
the agreement is fragile by nature.
365
See Kruse, supra note 310 at 151.
366
Ibid at 141.
367
John Rawls, Political Liberalism (New York: Columbia University Press, 2005) at xl-xli and 147.
108
As in a modus vivendi, if a case of accommodation exists, SLP will continue if
neither of the institutions definitively renounces its claim of authority over the subject
matter. In other words, under these conditions of accommodation, neither of the
authority-claiming institutions would be irrevocably subordinated to the other.
Accordingly, if SLP exists, compliance with an order of authority-claimant A by
authority-claimant B must come from B’s free and revocable choice, not from the fact
that A issued the order. In the situation of a modus vivendi-type agreement regarding the
disposition of a particular case, authorities together determine the content of the case’s
resolution and, thus, like in the Brown II case, neither of them is subordinated to the
other. For SLP to persist in this situation of accommodation, any modification to the
content of the agreement must be made on the basis of mutual consent.
Since, in the condition of accommodation, institutions retain their (self-
proclaimed) right to assert and exercise exclusive authority, each institution is free to
unilaterally withdraw from the agreement, thus breaking the state of accommodation.
Once institutions break the agreement, mere tension or eventual conflict can follow. As
an example of mere tension following accommodation, suppose that the State of Georgia
stops the token desegregation strategy, but the US Supreme Court does not issue a
contempt of court order exclusively because it considers the federal army’s involvement
in the implementation of racial desegregation too expensive and not because it recognises
the State of Georgia’s authority over the issue of racial desegregation. 368 As a case of
conflict following the end of a state of accommodation, consider the above situation but
368
Conflict can follow tension since at any given moment the Supreme Court’s cost benefit analysis can
vary.
109
with a strong contempt of court order issued by the US Supreme Court against the State
of Georgia’s persistent segregationists officials.
2.3.4 Existence of Hierarchically Irresoluble Tension
The public authorities in tension must not have a commonly recognised superior norm
that resolves the tension or a commonly recognised interpreter of the superior norm who
can resolve the difference. One could think that talking about a state necessarily implies
the existence of a common norm that will solve the tension between authorities.
However, it is possible that the constitution of the state did not foresee how to resolve a
clash of jurisdictions that develops after its ratification. And, even if it could be argued
that the framers of the constitution thought about the tension between or among
authorities and solved it through the creation of certain superior norms, there may be
situations in which the coexisting authorities cannot agree over the interpretation of this
difference-solving norm and will not recognise any other public authority as the
interpreter with constitutional authority.
The State of Georgia’s massive disobedience of the US Supreme Court’s Brown
decisions clearly exemplifies a case in which hierarchical norms are insufficient to
resolve the conflict. The US Supreme Court asserted jurisdiction to decide the Brown
cases in order to protect the Fourteenth Amendment to the Constitution of the United
States, which provides for equal protection of laws. As mentioned before, in Brown I, the
US Supreme Court took jurisdiction “Because of the obvious importance of the question
presented.” 369 And it was clear to the US Supreme Court that 28 U.S.C. § 1253 370 gave it
jurisdiction over the controversy. The State of Georgia, however, did not recognise the
369
See Brown v. Board, supra note 312 at 488.
370
Ibid at 286, footnote 1.
110
US Supreme Court as the competent authority to resolve the case. To Georgian public
authorities, the federal Constitution had given the states the power to regulate education
and, thus, the US Supreme Court had no power to intervene in the matter of racial
segregation in schools, or to order the desegregation of schools. And, as was asserted in
the Southern Manifesto, to the State of Georgia and its officials, the US Supreme Court
was abusing its judicial power and encroaching on the State’s jurisdiction regarding
education.
In the case of Worcester v. Georgia, the US Supreme Court also claimed
jurisdiction to decide the case. As analysed above, for the US Supreme Court it was “too
clear for controversy, that the act of congress, by which this court was constituted, had
given it the power to exercise jurisdiction over the case. This was not a chosen task but an
imposed and unavoidable duty.” 371
In Worcester, the State of Georgia, by openly disobeying the US Supreme Court’s
decision, tacitly denied the validity of the US Supreme Court’s claim to jurisdiction and,
simultaneously, denied the US Supreme Court’s authority to interpret the treaties of the
United States regarding the relationship of the federal government and the Cherokee
nation. Since there is no judicial authority in the United States superior to the US
Supreme Court, and the State of Georgia did not recognise the US Supreme Court as its
hierarchical superior for the subject matter in Worcester, the fourth element of SLP
existed.
Two authors in the field of SLP recognise that a necessary element of SLP is the
impossibility to resolve tension among public authorities through a decision of a
371
Worcester v. Georgia, supra note 284 at. 541.
111
commonly recognised hierarchically superior authority. Gordon Woodman considers the
involvement of different ‘state sectors’ in irresoluble tensions or contradictions between
the applicable sources of law as a clear case of SLP. For these tensions to be irresoluble,
and thus an instance of SLP, there cannot be an overriding superior norm that resolves the
difference. 372 Although Woodman does not provide a particular example of this
irresoluble situation, one can think about two administrative agencies, one federal and
one provincial, both arguing jurisdiction over a case but neither being hierarchically
superior to the other, that have to decide the same case of liability for problems in the
construction of a highway. One argues that federal regulation X must be applied and,
thus, there should be no liability, while the other argues that according to provincial
regulation B, the builder of the highway must be held liable for the damages caused by
construction problems. For SLP to exist, there cannot be a norm accepted by both
institutions that establishes which of the normativities, federal or provincial, must be
applied to resolve the dispute.
Although Santos does not explicitly recognise an absence of hierarchical superior
to resolve institutional tension as a necessary condition of SLP, he tacitly asserts this.
Santos considers that different forms of regulation can exist in one state and can render
the state contradictory because there is a lack of regulatory unanimity within it. Given
this situation, according to Santos, intra-state social-fields become “microstates” with
“partial sovereignty.” 373 Santos specifies the scope of microstates by saying that “[n]ot
only are different sectors of state activity developing at different paces and sometimes in
372
Woodman, "Ideological Combat", supra note 17 at 47. Woodman adds that even different structures
within the state can present self-contradictions. See ibid at 54.
373
Santos, Toward a New Common Sense, supra note 281 at 281. Accord Santos, Toward a New Legal
Common Sense, supra note 281 at 199-200.
112
opposite directions, but there are also disjunctures and inconsistencies in state action, and
so much so that sometimes no coherent pattern of state action can be discerned
anymore… As a result, the state itself becomes a configuration of microstates…”.374
If there are disjunctures and inconsistencies in “state action” this is because there
is an actual regulation of the same subject matter by the institutions that constitute
microstates. Thus, different state entities clash and contradict each other in their attempt
to regulate a given matter or area. Also, if microstates claim to have partial sovereignty
this is because they want to rule over the same subject matter and to prevail over other
microstates. Indeed, sovereignty (under this conception) implies supremacy vis-à-vis
another institution in respect of power, domination, or rank for the purpose of asserting
supreme dominion or authority conjoined to a de facto ability to rule.
Santi Romano had already developed the idea of several legal orders within the
state. Nonetheless, his conception of plural laws within the state cannot amount to a case
of SLP, as will be explained below. For Romano, law equals legal orders and all
institutions are legal orders in themselves. 375 The state is just one of these institutions
and, thus, just one of the existent legal orders. 376 The state is comprised of several
institutions and these institutions are relevant to law; 377 indeed, these institutions are law
since all institutions are a legal order. 378 The relationship of these institutions vis-à-vis the
state is that of internal divisions, of parts that form a whole. 379 According to Romano, the
state as a whole is superior to the institutions and the internal institutions are, therefore,
374
Ibid at 95.
375
Romano, supra note 16 at 10, 19.
376
Ibid at 81, 90.
377
Ibid at 64-66.
378
Ibid at 161.
379
Ibid at 108 and 161.
113
subordinated to the state. 380 Nevertheless, the institutions that constitute the state are not
completely regulated by rules coming from the state. They have internal regulations
issued by each institution. These internal regulations neither depend on nor are they
relevant to the state as a whole. In this sense, institutions internal to the state are
autonomous and conform themselves legal orders. 381
Santi Romano envisioned the possibility of having several laws within the state by
having numerous institutions that constitute it, institutions with independent internal
regulations. Nonetheless, Romano did not analyse the relationship of these internal
institutions vis-à-vis each other and, thus, did not envision eventual conflicts among
them. Nor did Romano question the possibility of the absence of a hierarchical superior
between or among internal institutions since he did not explore the relationship among
them. He only studied the relationship of the institution with the state institution as
superior one, as comprehensive of internal institutions. Therefore, it is not possible to
assert that Romano fully developed a theory of SLP.
2.3.5 Existence of Ideological Difference (complementary element)
Abstract ideological differences between public institutions could promote concrete
tension of authority claims over a single case. Nonetheless, it could be the case that
abstract ideological discrepancies between public authorities never materialise in an
actual tension of authority claims. In this case, the discrepant approaches to law will not
constitute a case of legal pluralism.
380
Ibid at 28 and 108.
381
Ibid at 162-163.
114
In a unitary state, there are latent differences but this will not necessarily imply a
tension between public institutions. This will be the case of the structure of the legislative
branch, where discrepant approaches coming from different political parties interact
without consolidating a tension of public authorities if majority rules are accepted by all
parties involved in the process.
In light of the element under study, Santos’ definition of legal heterogeneity can
be questioned. Santos has defined SLP, which he calls “legal heterogeneity,” as a feature
of state regulation that exists whenever diverse political and ideological logics of
regulation are perceived in different spaces of public action. 382 Rather than placing
emphasis on the actual tension between authority claiming institutions, he places
emphasis on the ideological difference within the state. The problem with his definition
can be seen in the example that he uses to illustrate legal heterogeneity in Mozambique.
Santos studies the case of Mozambique, a former Portuguese colonial regime that, after
several ruptures of political regimes, now claims to have an official democratic, unified
legal system. Mozambique’s public institutions mix and overlap the application of
colonial, Marxist, neo-liberal and Anglo-Saxon democratic ideologies, all of which have
been present in Mozambique at one time or another. Santos denominates this case as a
“palimpsest phenomenon.” Moreover, institutions such as the statutorily recognised
community courts of Mozambique sometimes follow the language of official justice and
sometimes that of traditional and customary informal language with mainly oral
procedures—a phenomenon Santos calls “hybridization.” Santos calls these two forms of
382
Santos, Toward a New Common Sense, supra note 281 at 271.
115
pluralism “heterogeneity of state regulation.” 383 And yet, in the case of Mozambique, it is
not clear how these ideological differences or ideological discrepancies first overlap and
second, in case of overlap, could end up constituting a tension between authority
claiming institutions within the state.
Certainly, different logics of regulation facilitate a case of legal pluralism because
it is possible that if the moment to rule over the same case arrives each authority may
seek to exercise a right to rule in order for its regulations and ideals to prevail. But a case
of legal pluralism mainly needs a tension between authority claiming institutions or a
clash of intentions to rule a situation. Authority, as explained in detail in chapter IV, is
content-independent and deliberation-excluding. Once one public authority establishes
the authority or the right to rule, the content of her ruling cannot be questioned by her
subject or by her challenger. Ideological argumentation beyond the crude right to rule or
the attempt to show why a certain ruling should trump is unessential to the concept of
authority.
In both the Brown cases, although there was an ideological tension between the
US Supreme Court and the State of Georgia, the central publicly avowed reason for the
State of Georgia’s disobedience was its claim of authority over the issue. This is why, in
the Southern Manifesto, the State of Georgia, among other Southern states, neither
claimed that segregation was ideal nor stated its reason for so arguing. What existed in
the Southern Manifesto was a protest against the US Supreme Court for its perceived
abuse of power, and for its encroachment over states’ rights regarding education.
383
Santos, "The Heterogeneous State", supra note 281.
116
In the same vein, in Worcester v. Georgia, the State of Georgia agreed to free
Worcester only after he appealed to “the magnanimity of the State.” 384 Thus, even if the
outcome was the same as that ordered by the US Supreme Court, what prevailed in the
State of Georgia’s decision to free Worcester was his recognition of state superiority over
the jurisdiction of the US Supreme Court. If the State of Georgia had not claimed
authority over education and the regulation of Indian territories, the existence of
ideological differences would not have amounted to a conflict and SLP would not have
existed.
2.4 Conclusion
I have explained that legal pluralism is a phenomenon that can take place within the state,
contrary to what some legal pluralists have argued. Aiming for clarity and precision, I
have defended four constitutive elements of SLP: 1) it takes place within the
governmental structure of the state; 2) it includes two or more public institutions within
that state; 3) it involves a tension between or among public institutions over decision-
making responsibilities regarding a particular, single subject matter; and 4) it lacks an
agreed-upon superior norm or an agreed-upon superior public institution with the last
word on the interpretation of a norm capable of distributing final (legal) decision-making
power among the contending public bodies. In addition to determining the constitutive
elements of SLP, I also suggested that SLP may include an underlying ideological
difference between or among the public institutions in tension, cases in which the tension
384
Miles, supra note 291 at 540.
117
that pluralism involves is likely to be more severe than it is in cases that lack ideological
difference. With this theoretical framework in mind, I will proceed to analyse the
Colombian high courts’ conflict over GAJD as a case of SLP.
118
CHAPTER III
THE COLOMBIAN HIGH COURTS: A MULTI-HEADED DRAGON
WITH TWO CONSTITUTIONAL IDEOLOGIES
3.1 Introduction
In Chapter II, I laid down the constitutive and complementary elements of SLP. Based on
the theoretical framework presented in the previous chapter, I now analyse the conflict
among the Colombian high courts to determine whether it constitutes a case of SLP. The
first two constitutive elements of SLP are easily verifiable in the conflict among the
Colombian high courts. First, since the high courts involved in the conflict are part of the
Colombian judiciary, it is clear that the case under analysis takes place within the
governmental structure of the state. Second, since the Supreme Court of Justice, the
Council of State and the Constitutional Court are involved in the conflict, the Colombian
controversy involves more than one public institution. Below, I explain the existence of
two constitutive elements that are not immediately visible. I first argue that in the conflict
among the Colombian high courts there is no hierarchical superior that can decide the
conflict of whether guardianship review of judicial decisions is legally possible.
Moreover, I contend that the conflict among high courts is permeated by an ideological
difference. This difference acts as a complementary element of SLP that reinforces the
Colombian case as one of SLP.
119
3.2 The Colombian Judiciary as a Multi-headed Dragon
As explained in Chapter II, in order for SLP to exist, the public authorities in conflict
cannot have a commonly recognized superior norm that resolves the conflict or a
commonly recognised authorised interpreter of a superior norm who can resolve the clash
of authorities. In the Colombian case, the high courts resemble the heads of a multi-
headed dragon. In the case of a multi-headed dragon, all the different heads want to
command over the dragon’s body, but no one head exercises command over any other.
The issue of guardianship action against judicial decisions (GAJD) is the dragon’s body
over which the high courts want to command in an exclusive manner. But as in the case
of a multi-headed dragon, there is no high court that is commonly recognised as superior
to the other courts with regards to GAJD. Moreover, the 1991 Political Constitution of
Colombia (“1991 Constitution”) and the statute that regulates judicial activities do not
provide a clear and unequivocal solution to the dispute. In other words, neither
constitutional nor statutory law contemplates this kind of judicial conflict, nor have the
courts themselves recognised any institution as having jurisdiction to resolve it, as
explained below.
There are two possible circumstances in which the high courts will come into
conflict over the issue of GAJD: as guardianship judges 385 or as guardianship judge and
defendant. In the first instance, the high courts can differ on the validity of this review as
guardianship judges. On the one hand, the different chambers of the Supreme Court of
Justice and the Council of State have jurisdiction to decide guardianship actions brought
385
As was explained in Chapter I, all judges in Colombia can act as guardianship judges, high courts
included. In their role as guardianship judges, the SCJ and the COS have the opportunity to decide over all
types of guardianship lawsuits, including those brought against judicial decisions.
120
against judicial decisions of other chambers of the same court, according to Decree
1382/00, 386 articles 1, numeral 2, and 4. In the exercise of this jurisdiction, the Chambers
of the Supreme Court of Justice and the Council of State act either as trial guardianship
judges or as appellate guardianship judges. For example, the Supreme Court of Justice,
Criminal Chamber, can act as the trial judge in a guardianship action against the Supreme
Court of Justice, Civil Chamber, and the Labour Chamber can be the appellate
guardianship judge of this same case. The Constitutional Court, on the other hand, acts as
a guardianship judge when it reviews a guardianship judgment under its discretionary
selection criteria. This procedure is explained below in a numbered sequence.
1. An individual brings a guardianship action against a judgment of one of the
chambers of the Supreme Court of Justice or the Council of State. The Supreme Court of
Justice and the Council of State as high courts have legal personality and, thus, can be
sued. Each of the chambers of these high courts has no legal personality on its own.
Nonetheless, in the lawsuit, the guardianship plaintiff must specify the chamber that
delivered the judgment that allegedly violated fundamental rights.
2. A chamber of the court to which the defendant chamber belongs, other than the
chamber acting as the defendant, can act as the trial guardianship judge (i.e. if a
guardianship action is brought against a chamber of the Supreme Court of Justice,
another chamber of the Supreme Court of Justice will decide the case. If a guardianship
action is brought against a chamber of the Council of State, another chamber of the
Council of the State will decide the case). While acting as the trial guardianship judge,
the chamber gives its opinion on guardianship review of judicial decisions.
386
In Colombia, decrees are regulatory norms that develop the content of statutory laws. Decree 1382/00
develops Decree 2591/91, a Decree of statutory nature, which determines the jurisdiction over guardianship
actions.
121
3. After the trial judgment is delivered, if a motion to appeal is brought, a
different chamber than the chamber acting as the defendant and the chamber acting as the
trial judge can act as an appellate guardianship judge. While acting as an appellate
guardianship judge, this chamber gives its opinion on guardianship review of judicial
decisions.
4. After the guardianship judgment is delivered, either at the appellate level or at
the trial level if no motion to appeal is brought, the Constitutional Court can review the
judgment at its discretion. While acting as a reviewer, the Constitutional Court gives its
opinion on guardianship review of judicial decisions. 387
One could think that because the Constitutional Court acts as a potential reviewer
of all guardianship judgments - judgments delivered by the Supreme Court of Justice and
the Council of State included - the Constitutional Court would be the hierarchical
superior for the issue of judicial review of judicial decisions. Nevertheless, in order to
avoid the Constitutional Court’s review powers, the Supreme Court has taken to retaining
the guardianship action files so as not to transmit them to the Constitutional Court for its
review. The Supreme Court of Justice argues that no guardianship review of judicial
decisions is valid and, through an interlocutory decision, does not grant leave to proceed
with the guardianship action brought against judicial decisions. Since the Constitutional
Court is supposed to review all guardianship judgments, and an interlocutory decision is
not a judgment, the Supreme Court of Justice does not send their decisions to the
387
No external institution can question the Constitutional Court. Parties to the guardianship process,
including guardianship processes that review judicial decisions, may only present writs of nullity before the
Constitutional Court to question its decisions. Article 49, Decree 2067/91, which regulates Constitutional
Court’s powers, establishes that “against constitutional court judgments no judicial action is viable.” This
article has not been modified or sued against nor, consequentially, has it been declared unconstitutional.
Besides the self-recognition of the Constitutional Court as the final arbiter of fundamental rights issues (see
SU-1219-01 CC), the statutory prohibition of review precludes the possibility of an external judge
confronting the Constitutional Court.
122
Constitutional Court. In response to the absence of cases to review, starting on April 16,
2008, the Constitutional Court decided to receive and review the interlocutory decisions
and to file the cases as if they were guardianship judgments susceptible to its review. 388
In this way, even if the Supreme Court of Justice failed to transmit the guardianship
actions for review, the Constitutional Court has been able to review the previously
“retained” cases. 389
So far, no decision of the Supreme Court of Justice has been declared null and
void after the Constitutional Court’s forced review in these circumstances. If the
Constitutional Court were to declare a “retained” decision null and void, it remains to be
seen if the orders of the Constitutional Court would be complied with. Only if final
compliance were to follow the judgment of the Constitutional Court could it be said that
the Constitutional Court is recognised as the hierarchical superior of the other two high
courts in regards to guardianship review of judicial decisions. And yet, if one observes
the current reluctance of the other two high courts to obey the Constitutional Court’s
decisions, the likelihood of compliance with the Constitutional Court’s decisions in
guardianship cases seems remote, especially when the Constitutional Court’s review of a
guardianship case is only possible due to a forced study.
In the second instance of conflict, the high courts can differ regarding the validity
of guardianship review of judicial decisions as guardianship judge and defendant. In
theory, there cannot be a judicial conflict of powers between the parties to the process
and the judge, but rather only between the entities that are acting as judges. When
388
In interlocutory decision A-100-08 CC, the Constitutional Court argued that the decision to file
guardianship actions against judicial decisions equated to a final judicial decision. Thus, the guardianship
plaintiff had the right to bring this decision directly to the Constitutional Court, along with the guardianship
lawsuit, for eventual review of the Constitutional Court.
389
See e.g. judgment T-051-09 CC; and T-301-09 CC.
123
guardianship actions against judicial decisions are brought against a chamber of the
Supreme Court of Justice or a chamber of the Council of State, this chamber acts as
defendant and, if the case is selected for review, the Constitutional Court acts as
guardianship judge. The high courts’ position as judge and defendant constitutes a major
obstacle to finding a hierarchically superior entity that could solve the conflict.
One could argue that defendants are subject to the decision of the judge (i.e. the
Supreme Court of Justice or the Council of State acting as defendants would be subject to
the Constitutional Court acting as guardianship judge), which makes it unnecessary to
examine the possibility of judicial conflict. Nonetheless, as we saw in Chapter I, the
Supreme Court of Justice and the Council of State argue that the Constitutional Court
lacks constitutional authority to review issues that are within the jurisdictional subject
matter of the other high courts. Consequently, they argue that they are under no duty to
obey the decisions of the Constitutional Court in these particular matters. 390
A third reason for the lack of a hierarchically superior conflict-solving institution
is that, when the Constitutional Court reviews a judgment of one of the other two high
courts, it is not deciding the identical subject matter that was decided by the other high
court involved in the action. On the one hand, the Supreme Court of Justice and the
Council of State decide cases that deal with labour, criminal, commerce, family, or
administrative law as subject areas. On the other hand, the Constitutional Court reviews
the conduct of these courts acting as private or administrative law judges in light of
fundamental constitutional rights. Given the lack of identical subject matter when a case
390
The high courts are notified of the guardianship lawsuit brought against them. Accordingly, they have
the opportunity to participate in the proceedings. Nevertheless, they almost always have opted not to
present any defence.
124
is brought to the Constitutional Court for judicial review, it is logically impossible to
have a traditional conflict of judicial powers and authority, as explained below.
1. Typical conflict of jurisdiction:
Case under study: subject matter is criminal, labour, civil, family, or
administrative law.
1.1. Neither judge A nor judge B want to study the case; or
1.2. Both judge A and B, elect to study the case.
2. Tension in case of judicial review of judicial decisions:
2.1. As the hierarchical superior in their corresponding jurisdiction, the
Supreme Court of Justice or the Council of State delivers a decision over a
private or administrative law subject matter.
2.2. One of the parties in a private or administrative law case uses a
guardianship action to question the way in which the Supreme Court of
Justice or the Council of State acted.
2.3. A guardianship judge decides the appropriateness of conduct of either
of the high courts in light of the 1991 Constitution.
2.4. The Constitutional Court eventually reviews the judgment regarding
the conduct of the courts in light of the 1991 Constitution. The subject
matter under study is the conduct of the judge in light of the 1991
Constitution.
As evidenced in sequence 2, there is no single identical case over which the
Supreme Court of Justice or the Council of State, on the one hand, and the Constitutional
125
Court, on the other, adjudicate. The parties and the object of study of the cases are
different.
It could be said that the Constitutional Court has reviewed the substance of the
Supreme Court of Justice’s and the Council of State’s judgments, and thus has studied the
same subject matter as that studied by these high courts. This is particularly true when the
Constitutional Court is analysing substantive defects of the Council of State’s or the
Supreme Court of Justice’s judgments. As explained in Chapter I, substantive defects
look at the application of the appropriate norm to resolve a case or at the reasonable
interpretation of a given norm vis-à-vis the 1991 Constitution. Despite the substantive
similarity of the object of study, the theoretical difference of the object of study (i.e. in
theory, what the Constitutional Court reviews is the conduct of the judge and not the case
decided by the judge), has so far made it impossible to formulate and solve an actual
conflict of powers.
Although a typical “conflict of jurisdictions” such as the one illustrated in the
sequence 1 above is difficult to portray, 391 there is still a “conflict” between the high
courts regarding the possibility of judicial review of judicial decisions. Thus, it is worth
considering whether there is a judge who is not involved in the conflict and who could
resolve this tension. In Colombia, there is an institution equivalent to a high court which
is in charge of organising the system of the administration of justice: the Superior
Council of the Judiciary (“the Superior Council”). Although the Superior Council is
charged with resolving conflicts of jurisdiction, whether they consist in two judicial
institutions claiming authority over a specific matter or two judicial institutions claiming
391
This is because the difference is between the first-instance merits and the constitutional legality of the
decision under review.
126
that there is no such authority, a conflict between the Colombian high courts has never
been studied or resolved by the Superior Council.
Moreover, neither the 1991 Constitution nor the power and authority-distributing
statute of the judiciary (Statute 270/96) give the Superior Council the power to decide
which court must have the final say on the matter of judicial review of judicial decisions.
The 1991 Constitution does, however, give the Superior Council the authority to decide
conflicts of authority between different jurisdictions (Article 256, numeral 6). 392 One
could argue that, since constitutional jurisdiction and ordinary and administrative
jurisdictions are different, the Superior Council should be competent to resolve conflicts
regarding judicial review of judicial decisions. Nevertheless, the high courts have not
referred conflicts to the Superior Council, and the Superior Council has not asserted that
it has authority over these specific matters.
One reason for the Superior Council not having authority over the controversies
related to guardianship actions against judicial decisions is the fact that ordinary judges
acting as guardianship judges act within the boundaries of constitutional jurisdiction. In
fact, the Constitutional Court has argued that, when acting as guardianship judges and
independently of their areas of expertise (e.g. criminal, labour or family law), judges are
functionally part of the constitutional jurisdiction, the highest arbiter of which is the
Constitutional Court. Thus, in the case of a lack of common hierarchical superior
according to their expertise, the hierarchically superior common authority to resolve the
conflict would be the Constitutional Court. 393 This argument would leave the Superior
392
This ability is reiterated in Article 112, numeral 2, of the Organic Statute of the Judiciary (Statute
270/96).
393
See interlocutory decisions A-027-01 CC, A-031-02 CC, and A-003-06 CC, where judges acting as
guardianship judges argued that they did not have authority to decide the case, and did not have any
127
Council without jurisdiction over potential conflicts of jurisdiction. 394 Nevertheless, it
would not guarantee that the Constitutional Court would be recognised by the other two
high courts as the judicial authority competent to have the final say on issues regarding
judicial review of judicial decisions.
Additionally, neither the Colombian Congress nor the Colombian Government
has issued a regulatory norm that determines, once and for all, whether a guardianship
action against a judicial decision is viable. 395 Finally, the 1991 Constitution neither
clearly foresaw the conflict nor, consequently, proposed a solution for the clash of
authorities. Although there was a dispute about whether to create a Constitutional Court
common hierarchical superior. Thus, the Constitutional Court assumed jurisdiction to solve the negative
conflict of authorities as the hierarchical superior organ of constitutional jurisdiction. Accord interlocutory
decision A-233-08 CC, in which the guardianship plaintiffs brought a guardianship action against the
Constitutional Court for not having selected the guardianship judgment that had decided their case for
further review. The guardianship action against the Constitutional Court was brought in front of the COS.
The COS considered that, by analogical application of article 1, numeral 2 of Decree 1382/01, the
Constitutional Court should decide the action brought against its decision. Therefore, the COS sent the
case to the Constitutional Court for its decision.
The Constitutional Court argued, first, that it had no jurisdiction to act as a guardianship trial judge. Its
only jurisdiction regarding guardianship actions was to eventually review any guardianship judgment at its
discretion. Second, and more relevant, the Constitutional Court argued that it was impossible to have a
conflict of authority regarding a guardianship case when the Constitutional Court was one of the
conflicting judges. The reason why no conflict of authority was possible was that, when acting as
guardianship judges, all Colombian judges belonged to the constitutional jurisdiction and, due to its
jurisdiction for eventual review of any guardianship action, the Constitutional Court was functionally
superior to all judges acting as guardianship judges. In this case, the COS was a functionally inferior judge
within the constitutional jurisdiction and did not have the ability to claim a conflict of negative
competence.
394
The fact that the Superior Council has no jurisdiction to resolve the conflict of authorities among the
courts does not mean that the Superior Council does not have an official position regarding the viability of
guardianship action against judicial decisions. For the Superior Council all judicial decisions can be
reviewed through a guardianship action. Accordingly, Ruben Darío Henao, former President of the
Superior Council, stated that the SCJ has a “capricious and illegal attitude” and “it quit being Supreme
several years ago…it is simply a court of cassation.” For Justice Darío Henao, “this is not a clash of trains
but of vanities led by the arrogance and ignorance of the SCJ”. He says that for the SCJ “it is more
important to show off as the Supreme judicial authority than to demonstrate its legal knowledge.” “There is
no end to the clash among high courts”, Ámbito Jurídico (23 October to 5 November 2006) [translated by
the author].
395
Furthermore, it is not clear that either the Colombian Government or the Congress would have the legal
power to issue such a norm. The eventual regulation would be, thus, beyond their authority. And even if the
Congress or the Colombian Government had the authority to regulate, compliance with the regulation of
guardianship review of judicial decisions could not be guaranteed
128
within the Constituent National Assembly that drafted the 1991 Constitution, it was never
imagined that, were one to be created, the Constitutional Court would clash with the
Supreme Court of Justice and the Council of State. The central justification for the
creation of a Constitutional Court was the need for unified constitutional law
interpretation which could not be achieved, it was argued, if ordinary judges, according to
their own criteria, decided the constitutionality of norms on a case by case basis. 396
María Teresa Garcés, speaker of the Constituent National Assembly, argued that
the Constitutional Court would provide a coherent interpretation of the 1991 Constitution
that would provide legal stability to Colombian people. 397 In the same vein, and seeking a
unified specialised interpretation, the Minister of Government argued in favour of the
creation of a new court. 398
As stated above, the Constitutional Court was never intended to oust the
jurisdiction of the other courts. On the contrary, the Constitutional Court was thought of
as an entity that would deal with constitutional public law issues, while the Supreme
Court of Justice would deal with private, ordinary law topics. 399
Regarding the judicial review of judicial decisions, Maria Teresa Garcés and José
María Velasco Guerrero, speakers of the Constitutional National Assembly, were of the
opinion “that [it] will make never-ending judicial procedures, besides establishing
396
See Gazette 36, Constituent National Assembly, Fourth Commission, April 9, 1991, at 18, 20-21.
397
Ibid at 31.
398
Ibid at 34.
399
Gazette 36, Constituent National Assembly, Fourth Commission, May 2nd, 1991, at 8. During the
discussions on whether to create a Constitutional Court it had not been yet defined if this Constitutional
Court would deal with concrete review of constitutionality or guardianship action, since this was going to
be a new legal figure in Colombia. Ibid at 30. Thus it was impossible to foresee the war between courts
regarding GAJD.
129
unnecessary work load on the Constitutional Court which would make it unworkable.” 400
Nevertheless, the conflict among courts was not clearly stated and, thus, it was not
determined who would solve the conflict among courts in case of controversy.
3.3 The Colombian High Courts: a Multi-headed Dragon with Two Constitutional
Ideologies
In Chapter II, I argued that ideological discrepancies between official authorities,
although not an essential element of SLP, do enhance this form of pluralism. This is
because tension between authority claiming institutions may occur as the result of
ideological differences.
Colombia, as a unitary state, has one constitution, the 1991 Constitution. As was
explained in Chapter I, three high courts coexist within the Colombian judiciary: the
Supreme Court of Justice, the Council of State and the Constitutional Court. As
suggested in section 1 of this Chapter, the Colombian high courts resemble a multi-
headed dragon where no head commands the other. Moreover, each of these high courts,
or each head of the dragon, views the 1991 Constitution from a different ideological
perspective. On the one hand, the Constitutional Court tends to view the 1991
Constitution as a document whose main purpose is to entrench fundamental rights and
make them legally binding. On the other hand, the Council of State and the Supreme
Court of Justice tend to emphasise the 1991 Constitution as a document that distributes
powers among various authorities and gives considerable discretion to the authority to
which a power is delegated. A progressive rights-based constitution prevails in the view
400
Legislative project, Constituent National Assembly, Constitutional Gazette April 4th 1991, at 14
130
of the Constitutional Court, while a traditional liberal power-distributing constitution
exists in the view of the Council of State and the Supreme Court of Justice.
This ideological difference intensifies the tension over who has the jurisdiction to
decide private and administrative law cases and, simultaneously, over the possibility of
further judicial review of judicial decisions. Decisions in private and administrative law
cases in tension could differ in their ruling if one studies these cases from the ideological
perspective of the Constitutional Court or from the ideological perspective of the
Supreme Court of Justice and the Council of State. For example, from the perspective of
the Constitutional Court, an employee has the right to a pension while from the point of
view of the Supreme Court of Justice this right would not be recognised, as happened in
Cadena Antolinez v. Supreme Court of Justice, Labour Chamber, judgment SU-1185-01
CC. Also, a government employee who was fired and wanted his job back could be
reintegrated to his job from the perspective of the Constitutional Court, while for the
Council of State it would be possible to fire this employee due to the alleged
discretionary power of the administration, as occurred in Mejía Castaño v. Council of
State, judgment T-295-98 CC. The possibility of different outcomes encourages the high
courts to claim final jurisdiction over cases in which there are ideological differences
between the various courts.
Moreover, in order to prevent future decisions with which the Supreme Court of
Justice and the Council of State will disagree, the potential differences in outcome
encourage these courts to deny the possibility of any judicial review of previous judicial
decisions. The greater the likelihood that judicial review of a judgment will result in a
different decision by another court, the more likely it is that a court will deny judicial
131
review in order to preserve its exclusive authority to resolve the particular matter in
dispute according to its ideology.
No matter the outcome of a case, the ideological contrasts also encourage the
courts to differ as to the mere possibility of having judicial review of judicial decisions—
as will be explained in Chapter IV, a progressive perspective mandates preserving it
while a traditional liberal one tends to deny it.
Nevertheless, beyond the possibility of dissimilar outcomes due to ideological
differences, there is a content-independent intensifier of tension. Tension may arise when
courts feel their authority threatened or diminished. Having authority on certain issues
justifies the existence of an institution within the state structure. Indeed, one of the
reasons state reforms take into account when suppressing one institution is that the
authority on a certain issue attributed to the suppressed institution now belongs to a
different institution or is no longer necessary. Accordingly, it could be said that a threat
to the authority of an institution - judicial institutions included - is a threat to its
existence, or at least to its role. This is because the right to rule on certain issues, a right
that justifies its existence, will no longer be within its domain. If the existence or role of
an institution is at risk, a defensive reaction by the threatened institution against the
institution that posses the threat is foreseeable.
In what follows, I focus on the tension derived from the different understandings
of the 1991 Constitution by the Colombian high courts. I provide two examples of how
the ideological differences have resulted in different outcomes; contrasting decisions that,
simultaneously, enhanced the tension between the contending courts. Indeed, almost
every time the Constitutional Court declares a judgment of any of the other high courts
132
null and void, the high courts which were overruled react severely and attempt to close
the opportunity of review of judicial decisions even further. Later on, I analyse the
content of the contrasting constitutional ideological backgrounds of the courts.
3.3.1 Pension Rights
Pachón Guevara et al. v. Supreme Court of Justice, judgment SU-120-03 CC, embodies
the contrast of two conflicting judicial decisions supported by two different views of the
1991 Constitution. As will be seen, on the one hand, the Supreme Court of Justice based
its decision on a reading of the 1991 Constitution under which fundamental rights and
principles are not binding, but merely provide guidance should the judiciary need to fill
out statutory lacunas. On the other hand, the Constitutional Court decided this case on a
reading of the 1991 Constitution under which principles are clearly binding for the
purposes of judicial interpretation.
The plaintiffs in this case retired from their jobs as soon as they completed the
requisite term of employment necessary to earn a pension and waited several years after
retirement until they reached the second requirement to obtain pension benefits - the
mandatory age for pension. Once the plaintiffs reached the appropriate age, their former
employer recognised their pensions based on the amount of the last working salary
earned by the plaintiffs, but without indexation of this salary. This decision considerably
lowered the amount of the pension received by the plaintiffs. Accordingly, the workers
brought a lawsuit against their former employers for not applying indexation to their
salary when calculating their pensions.
When deciding the case, the Supreme Court of Justice found that there was no
norm that controlled the case. In order to decide whether to index in the absence of a
133
norm that expressly established such an obligation, the Supreme Court of Justice based its
decision on contract law principles established in the Colombian Civil Code (the Civil
Code). According to the Supreme Court of Justice, the Civil Code established that all
obligations coming from a contract should have been clearly established by the parties to
the contract, even in the case of indexation of the obligation. As a default rule, the law of
contracts of the Civil Code is based on a monetary nominalist criterion. That is to say,
obligations should be paid in the monetary value specified in the contract, unless this
would be contrary to the agreement. If, in case of a labour law contract, the parties had
not established the duty to index, no indexation is applied to these obligations. Moreover,
to apply equity principles in order to require the indexation of any obligation - indexation
of the salary to calculate pension salary included - would affect legal stability in
economic relationships. Finally, to fill out the lacuna with equity principles would
amount to the Supreme Court of Justice becoming a legislative body. Accordingly, the
Supreme Court of Justice held that the defendant employers were not obliged to index the
plaintiffs’ pensions.
The plaintiffs in the labour law case brought a guardianship action against the
Supreme Court of Justice, Labour Chamber’s judgment for violation of their fundamental
labour law rights as recognised by the 1991 Constitution. The Constitutional Court
selected the Supreme Court of Justice’s decision for review. According to the
Constitutional Court, the Supreme Court of Justice’s decision constituted a violation of
the 1991 Constitution on several grounds. First, although the judges were autonomous,
there were mandatory hermeneutical Constitutional interpretative criteria. One of these
criteria was the equity principle established by the 1991 Constitution (Article 230). In the
134
application of this principle, in order to fill the lacuna, judges of the Supreme Court of
Justice should have restored the equilibrium that must exist in labour law relationships,
an equilibrium constantly threatened due to the weak position of the employee in
relationship to the employer, at least in theory. Moreover, the Constitutional Court found
that the Supreme Court of Justice had neglected to apply the Constitutional principle of
preservation of acquisitive value of pension salaries (Article 48 of the 1991 Constitution).
Furthermore, the Constitutional Court held that the Supreme Court of Justice had ignored
the application of the constitutionally entrenched favorability principle in case of
interpretative doubts regarding labour law (Article 53 of the 1991 Constitution). 401 For all
of these reasons, the Supreme Court of Justice’s interpretation of labour law’s silence
regarding pension’s indexation was found to be contrary to the 1991 Constitution, and its
judgment was declared null and void and remanded to the Labour Chamber for further
decision following appropriate Constitutional parameters.
In the aftermath of the case, neither court varied their positions. The Supreme
Court of Justice did not issue a new judgment and in subsequent labour law cases it
continued to use its monetary nominalist doctrine. On the other hand, the Constitutional
Court continued declaring all pension-related labour law judgments that did not apply
indexation to be null and void. 402 Furthermore, through its decision in Jaramillo Murillo,
judgment C-862-06 CC, a judgment of constitutionality with erga omnes effect, the
Constitutional Court declared that the legislative failure to establish the indexation of the
salary to calculate pension benefits was an unconstitutional lacuna. Therefore, all labour
401
According to the favorability principle, in case of conflicting interpretations of labour law, the judge
must apply the interpretation most favorable to the employee.
402
For an example of both the failure to change by the SCJ and the CC’s insistence on the application of
indexation to calculate pension salaries, see judgments: T-805-04 CC; T-815-04 CC; T-013-05 CC; T-296-
05 CC; T-098-05 CC; T-045-07 CC; T-425-07 CC; and T-1055-07 CC.
135
law judges, Supreme Court of Justice justices included, should apply indexation;
otherwise, they would be acting against the 1991 Constitution. The Supreme Court of
Justice has, so far, ignored the erga omnes mandate coming from Jaramillo Murillo
judgment.
3.3.2 State v. Individual
Perea Arias v. Council of State, judgment T-1232-03 CC, represents a clash between the
Council of State and the Constitutional Court regarding Constitutional state-centered and
individual-centered understandings. A citizen brought a lawsuit to the Council of State,
Fifth Chamber, against Edgar Perea Arias, a Colombian congressperson, for having
violated a Constitutional rule according to which congresspersons could not occupy
public or private posts or employment while still in office (Article 180 of the 1991
Constitution). Mr. Perea had been a sports narrator before becoming a congressperson.
While occupying a seat in the Congress, the defendant narrated some sports events.
According to the citizen plaintiff, Mr. Perea’s narration constituted a violation of Article
180 of the 1991 Constitution.
The defendant, Mr. Perea, argued that this activity fell under the exception to
Article 180 of the 1991 Constitution, according to which congresspersons can participate
in “scientific, artistic, cultural, educative, and sport activities.” He argued, moreover, that
he had not received any monetary compensation for this activity. Additionally, Mr. Perea
said he had never left his post as congressperson unattended because of the sports
narration. Rather, he argued that he engaged in the narration for personal enjoyment and
no other benefit.
136
The Council of State found that Mr. Perea had violated the Constitutional
prohibition of Article 180 and ordered that he vacate his congressional seat. To reach to
the conclusion that Mr. Perea had occupied a public or private post or employment, the
Council of State held that, according to several dictionaries - legal dictionaries included –
a post or employment could mean a craft. Sports narration was held to be a craft even if
no salary had been received and there had not been subordination, as is required by a
labour relationship. It was not relevant to the Council of State that the tasks of acting as a
congressperson had been faithfully executed by Mr. Perea; in the eyes of the Council of
State, the activity prohibited by the 1991 Constitution had occurred and that was all that
was necessary to justify the order that Mr. Perea vacate his congressional seat. The
purpose of the prohibition was to avoid a conflict of interest between the public interest
and any personal interests that could be involved in the parallel activities of a
congressperson. By narrating the sporting event, Mr. Perea could have mixed private and
public interests.
Finally, for the Council of State it was clear that the plaintiff had not participated
in a sports activity as the exception to the prohibition contemplates, but rather he had
exercised a craft, which was prohibited by the 1991 Constitution. Mr. Perea contested the
Fifth Chamber’s decision through the extraordinary resource of supplication, but the
Council of State’s Full Chamber confirmed the decision of the Fifth Chamber.
After exhausting all the administrative law avenues of recourse, Mr. Perea
brought a guardianship lawsuit against the Council of State before the Constitutional
Court. According to Mr. Perea, the decision of the Council of State constituted a de facto
act due to an irrational interpretation given to Article 180 by the Council of State and the
137
lack of consideration of the conditions in which he, for mere enjoyment, narrated sports
activities. Moreover, Mr. Perea argued that the Council of State was violating his
constitutional right to occupy a public office, his freedom of expression, and his freedom
to exercise a profession or craft.
In Perea Arias, the Constitutional Court held that, for several reasons, the
interpretation given to Article 180 by the Council of State was a violation of the 1991
Constitution. First, the Constitutional Court argued that the principle of hermeneutical
favorability should have been applied to determine the proper scope of Article 180. The
Constitutional Court held that to lose a seat in Congress corresponded to a disciplinary
sanction and in all areas of law that involve sanctions (i.e. criminal law and disciplinary
law), according to the 1991 Constitution, the interpretation most favourable to the person
facing sanction must be applied.
In addition, the Constitutional Court found that the interpretation of the Council
of State was so exaggerated that it could lead to congresspersons limiting their ordinary
daily life activities. Parenting, gardening, and cooking could also be seen as crafts, the
Constitutional Court argued, and because of this they could be part of Article 180
prohibition. All public or private posts or employment implied a craft, but not all crafts
constituted a public or private post or employment, according to the Constitutional Court.
For the Constitutional Court, it was necessary that either all the elements of a labour
relationship existed - monetary compensation, subordination and permanency - or that
another public post actually regulated by law was occupied by a congressperson in order
for there to be a real violation of Article 180. Crafts that did not involve such
characteristics were thus not prohibited. To interpret Article 180 otherwise would have
138
limited the constitutionally entrenched free development of Mr. Perea, the Constitutional
Court reiterated. No matter how important congressional activity is, the Constitutional
Court established that Article 180 cannot attempt to denaturalise a human being by
limiting her pursuit of legitimate interests that do not interfere with her ability to perform
her congressional tasks.
The purpose of Article 180 of the 1991 Constitution is to guarantee dedication
and efficiency in the performance of congressional activities, not to prohibit any type of
parallel activity by those holding congressional office. In addition, it was found that the
Council of State violated the principle of equal protection of the law. In previous cases,
for example, where a congressperson had written a newspaper column (an activity that
resembled sports commentaries), this activity had not been held contrary to Article 180,
and therefore the Council of State’s interpretation was irrational and excessive. This
caused the Constitutional Court to declare the judgment under review null and void.
Restoration of Mr. Perea to his congressional seat was not ordered because his
congressional term had already expired.
After being notified of the Constitutional Court’s decision, the then chief Justice
of the Council of State and one of the Justices of the Council of State brought a petition
of nullity against Perea Arias before the Constitutional Court. The petitioners argued that
the judgment should be declared null and void since it did not follow the Constitutional
Court’s precedent according to which the extraordinary resource of supplication, decided
by the Council of State Full Chamber, was the only valid judicial mechanism to bring
against judgments of the Council of State.
139
According to the Constitutional Court, there was no violation of its precedent
since what the Constitutional Court had asked for was an exhaustion of all ordinary
procedures before bringing any guardianship action. The Constitutional Court had not
argued that once all the ordinary procedures were exhausted it was not possible to use the
guardianship action against judicial decisions as a subsidiary remedy for fundamental
rights violations. If the violation of fundamental rights persisted despite the exhaustion of
extraordinary resources within the administrative jurisdiction, the guardianship action
would be viable, the Constitutional Court held.
The Constitutional Court reiterated that the Council of State, as with any other
judicial institution, should interpret the law according to the 1991 Constitution. The
decision also reiterated that the Constitutional Court is the organ that establishes what the
meaning of the 1991 Constitution is—including the meaning of constitutionally
established restrictions on congresspersons. Otherwise, according to the Constitutional
Court, it would be possible to say that the authorised interpreter of the 1991 Constitution
is not authorised by the 1991 Constitution to interpret it, or that it renounces its
jurisdiction as guardian of the 1991 Constitution as attributed by the 1991 Constitution
itself.
The fact that the Council of State opposed the Constitutional Court’s guardianship
judgment through a petition of nullity was the first sign of tension between the courts due
to different understandings of the 1991 Constitution. Nevertheless, the tension between
courts manifested itself in other ways. In a dissenting opinion to interlocutory decision A-
057-04 CC, 403 it was evident that, after the guardianship judgment in Perea Arias, the
403
Three out of nine Constitutional Court Justices asserted that although the Constitutional Court was, in
principle, the interpretive authority of the 1991 Constitution, the 1991 Constitution itself apportioned the
140
Council of State continued to interpret Article 180 of the 1991 Constitution in the same
manner as it had in the case of Mr. Perea. That is to say, besides demonstrating its
disagreement with Perea Arias through the recourse of nullity, the Council of State
openly disobeyed the precedent established by the Constitutional Court in Perea Arias.
3.3.3 The 1991 Constitution as Rights-entrencher
The outcomes of the above opinions are consistent with the way the Constitutional Court
understands the 1991 Constitution. Colombian scholar, Diego López Medina,
acknowledges that Colombia’s juridical turning point from French codified legislative
formalism to constitutional judicial anti-formalism occurred during the 1990s, in
particular after the enactment of the 1991 Constitution. According to López Medina by
the 1990s progressive Colombian jurists had based their anti-formalist and pro-judicial
activism claims on the acceptance of ambiguity in language and the possibility of judicial
argumentation supported by Hart and Dworkin. 404 This trend of thought influenced the
then new Constitutional Court.
In addition, new judicial vision in the 1990s supported the inclusion of the moral
and political role of law and its relationship with justice in the decision making process.
Moreover, the 1990’s school emphasized judicial argumentation rather than textualism.405
Finally, this school was influenced by Anglo-Saxon theory, ignored in Colombia until
interpretation of Constitutional incompatibilities of congressmen to the COS in an electoral procedure.

Thus, in order for an interpretation of the COS to be declared null and void it should be openly arbitrary
and not only opposite to the one given by the Constitutional Court. For the dissenting justices, the
interpretative arbitrariness was non-existent, mainly taking into account that the COS is the highest court in
terms of administrative law, including the electoral process.
404
Diego Eduardo López Medina, Teoría Impura del Derecho: La Transformación de la Cultural Jurídica
Latinoamericana (Bogotá: Legis Editores, 2004) at 3-5.
405
Ibid at 409.
141
that point, with its constitutionalisation and judicialisation of law. 406 By the 1990s, the
empowerment of the Colombian judiciary coincided with the disempowerment of the
legislative branch, which was no longer seen as the sanctuary for the volonté generale. 407
Supported by Dworkin’s ideas of the possibility of a principle-based correct
interpretation of law, justices of the Constitutional Court began to interpret the 1991
Constitution based on constitutional law principles. The possibility of taking principles
into account when deciding cases opened the door to the concept of social justice in the
judicial decision-making process. 408 Anchored in a Colombian reading of Dworkin, social
rights began to be taken seriously and to be understood as directly justiciable. 409
Consequently, the Constitutional Court began to emphasise the fact that social, economic
and cultural rights either have a minimum content that must always be protected or are
connected with basic liberties and are, thus, directly justiciable. 410
This new emphasis on anti-formalism, anti-textualism and judicial activism has
been evident in the controversies between the Constitutional Court and the high courts of
ordinary jurisdiction. In this high courts interaction, the Constitutional Court has used the
anti-formalist approach to justify its actions against what it sees as a strictly literalist and
positivistic ordinary jurisdiction. 411
The Constitutional Court generally claims that the 1991 Constitution is a
substantively driven document whose main purpose is to entrench fundamental rights as
part of its discourse to support judicial review of decisions. If the 1991 Constitution
406
Ibid at 410.
407
Ibid at 412.
408
Ibid at 453-455.
409
Ibid at 457.
410
Ibid at 458.
411
Ibid at 414-415 and 436-437.
142
distributes powers to various authorities, the power conferred must be used to protect
citizens’ rights. 412 Authorities, judges included, are under the substantive 1991
Constitution and not above it. 413 Indeed, judges are servants of the law, the Constitutional
Court says. 414
The Constitutional Court questioned its position on judges as actual servants of
the law for a short period when it emphasised respect for judicial powers and, thus, the
denial of judicial review of decisions. 415 Nonetheless, the Constitutional Court quickly
reasserted its former position of protecting fundamental rights by means of the concept of
de facto acts. 416
In addition, the Constitutional Court emphasises that the 1991 Constitution
embraces a system of Social State Law. This kind of state should protect substantive law
over procedural law. 417 The Social State aims at wealth redistribution among society and
the protection of citizens vis-à-vis the state. 418 Moreover, in this system the state is seen
as an institution created to serve rather than command citizens. 419 For the Constitutional
Court, the 1991 Constitution is a document that protects fundamental rights, in particular
those rights of citizens who are placed at significant disadvantage vis-à-vis other citizens
or the government itself 420 —for example, children 421 and convicted persons. 422
412
See T-223-92 CC.
413
See T-223-92 CC; and T-006-92 CC.
414
For examples of the emphasis on judges as public servants and servants of the law see T-1017-99; T-
079-93; and SU-478-97 CC.
415
See C-543-92 CC.
416
See T-079-93 CC.
417
See T-006-92 CC, majority opinion. Accord T-223-92 CC.
418
See C-543-92 CC, dissenting opinion.
419
See T-006-92 CC.
420
See C-543-92 CC.
421
143
The Constitutional Court also places emphasis on its being the highest court of
Constitutional jurisdiction and, thus, entitled to unify the interpretation of fundamental
rights. 423 Nevertheless, the Constitutional Court criticises the emphasis placed by the
Supreme Court of Justice and the Council of State on the concept of hierarchy instead of
on the protection of fundamental rights. 424
As explained below, this Constitutional, substantively driven concept embraced
by the Constitutional Court contrasts with the power-distributing procedural approach
largely supported by the other high courts - the Supreme Court of Justice and the Council
of State.
3.3.4 The 1991 Constitution as a Power-distributor
The Supreme Court of Justice’s decision in the pension case is no accident; it is rooted in
the Supreme Court of Justice’s power-distributing understanding of the 1991
Constitution. López Medina argues that, after 1991, legal formalism found support in the
Supreme Court of Justice and the Council of State. Traditional understandings of codified
areas of law such as labour law, commercial law, criminal law, and administrative law
seemed to fit more into a statutory and textualist reading of law. Supporters of this
reading have tried to repress anti-formalist views of constitutional law. 425
The Supreme Court of Justice’s concept of the 1991 Constitution mirrors Kelsen’s
ideal model of a constitution. In order to expose the considerable similarities, I first
outline the main elements of the Kelsenian concept of a constitution. I then highlight the
422
See T-006-92 CC. Accord T-413-92 CC; T-474-92 CC; and T-173-93 CC.
423
424
See T-413-92 CC.
425
López Medina, supra note 404 at 438-439.
144
Supreme Court of Justice’s view of the 1991 Colombian Constitution, a view that has
been defended along the lines of the controversy over GAJD.
Kelsen affirms the supremacy of a constitution as the highest norm of norms. 426
Nevertheless, a constitution in its proper sense, for Kelsen, is about the determination of a
state’s order and the determination of law-making and law-enforcing procedures. 427 It is
only when discussing a rights-based constitution or a constitution in the larger sense that
Kelsen includes fundamental rights as part of the basic norm and sees them as a limit on
the content of statutes. 428 But even when he mentions fundamental rights as part of a
constitution, Kelsen asserts only that “the constitution may authorize or proscribe certain
contents for general norms—i.e. for legislation.” 429 Regarding unwritten principles,
Kelsen argues that they are not legally binding. 430 From the fact that the constitution is
the basic norm, it does not follow for Kelsen that supra-positive values ought to be
included in it. 431
Additionally, since natural law values are to be separated from positive law,
Kelsen contends that a law could be both simultaneously unjust and valid. 432 For Kelsen,
in a purely positivistic legal order, the question of validity is not related to ethical-
426
Kelsen, Pure Theory of Law, supra note 3 at 195.
427
Kelsen, "La Garantie Jurisdictionnelle de la Constitution", supra note 1 at 204-205.
428
Ibid at 205 and 206. For an argument regarding the complementary or secondary place of fundamental
rights as part of the constitution, see also Hans Kelsen, General Theory of Law and State, translated by
Anders Wedberg (Cambridge, Massachusetts: Harvard University Press, 1945) at 124 [Kelsen, General
Theory]. Note that Kelsen speaks of the rights-based constitution as referring to a state’s order and the
power-distributing constitution as referring to fundamental rights entrenched in the constitution. However,
since the current sense of power-distributing and rights-based constitution is the opposite, I will use the
latter even when referring to the Kelsenian concept of constitution.
429
Kelsen, Pure Theory of Law, supra note 3 at 223 [emphasis added].
430
Kelsen, "La Garantie Jurisdictionnelle de la Constitution", supra note 1 at 239-240.
431
432
Ibid at 219. See also Vinx, supra note 3 at 23.
145
political justification or to a minimum standard of justice. 433 Kelsen not only rejects a
necessary relationship between justice and validity but also openly supports a constitution
that does not include open-textured values such as justice. He argues that this type of
constitutional law phrasing would impose too much weight on the judiciary and take
power away from parliamentary forces. 434
This Kelsenian approach exerts considerable influence on the Colombian
Constitutional debate. In Colombia, traditional lawyers have maintained a concept of
non-binding rights-based constitutional norms. Several judges of the Supreme Court of
Justice are traditional lawyers. According to López Medina, for the traditional lawyers,
fundamental constitutional rights and principles are non-binding. The only binding norms
are those explicitly found in statutes. If statutory law has not developed and specifically
implemented constitutional law, the latter is seen as merely aspirational. 435
López Medina argues that the Supreme Court of Justice’s denial that it is possible
for ordinary law interpretation to be guided by fundamental rights could be supported by
the Colombian reading of Kelsen. According to this reading, since there is no necessary
relationship between law and morality, the state is not presumed to regulate or intervene
in the private sphere through the rights-based aspect of the 1991 Constitution. In the
private sphere, individual autonomy is the rule. 436
433
434
Kelsen, "La Garantie Jurisdictionnelle de la Constitution" supra note 1 at 241-242.
435
See López Medina, supra note 404 at 446. This approach in some respects mirrors the ‘dualist’ approach
to international law traditionally found in commonwealth jurisdictions. According to this approach,
international law is not binding but merely persuasive for purposes of statutory interpretation unless
international law is specifically implemented by domestic law.
436
Ibid at 385. In Colombia, fundamental rights have been considered binding for the state and for private
individuals. That is why cases of the ordinary jurisdiction that deal with the relationship of private
individuals have been studied through a guardianship action.
146
Traditional lawyers in Colombia have used the Kelsenian separation of law and
morality to support a textualist approach to law and to reject a principle-based
understanding. For traditional lawyers, hard law is still law. Colombian traditional
lawyers see the 1991 Constitution as a power-distributing document, not a rights-based
one. That is to say, it provides regulation of functions and jurisdictions of the public
powers, but is not a binding charter of fundamental rights. 437 Moreover, for the Supreme
Court of Justice, there is a strict separation of morality and law. In addition, for the
Supreme Court of Justice judicial decisions are not source of law. Also, despite the
double roles of ordinary and guardianship jurisdiction held by Colombian judges, for the
Supreme Court of Justice ordinary judges are supposed to apply only rights statutorily
recognised and not those that are constitutionally based. 438
López Medina argues that the traditional lawyers operate in Kelsen’s shadow and
assumes that the apex of law is the 1991 Constitution. The 1991 Constitution is the rule
of recognition, but it does not have any rights-based binding content (i.e. the 1991
Constitution does not have a role when it comes to interpreting statutes). The emphasis
on the power-distributing constitution severely limited the possibility of using the 1991
Constitution as a substantive limit for lower norms and has limited the scope of
progressive judges. Kelsen was read in Colombia to support a vision of law centered on
statutory supremacy; that is, where binding norms are concerned, statutes are paramount
and cannot be read down or invalidated by reference to substantive constitutional texts. 439
437
Ibid at 407-408.
438
Ibid at 448 and 449.
439
Ibid at 390-391.
147
The Kelsenian-based traditional lawyers’ approach has been exemplified by the
Supreme Court of Justice’s discussion on GAJD. First, the Supreme Court of Justice has
been emphatic regarding the fact that, due to its superior ranking in the judicial hierarchy,
as protected by the 1991 Constitution, 440 and the autonomy and independence that comes
with its hierarchical standing, no review whatsoever of its judgments must be allowed. 441
Fundamental rights are not supposed to determine how ordinary legal adjudication is
decided. 442 Statutory law, on the contrary, is binding and determinate with respect to the
adjudicative role of judges. 443 This emphasis is supported in a power-distributing concept
of the 1991 Constitution.
Following the Kelsenian ideal of not placing emphasis on the substantive-moral
content of the 1991 Constitution, but rather on the powers and procedures that the basic
norm establishes, the Supreme Court of Justice finds that the 1991 Constitution does not
take sides to favour any particular group of people. 444 And the few times the Supreme
Court of Justice has granted guardianship protection against a judge it has been for lack
of jurisdiction over the case. 445
440
See File No. 10797 Record No. 11[3 April 2000] SCJ, Labour Chamber; see also Judgment of the SCJ,
Civil Chamber acting as guardianship judge in judgment T-006-92 CC; and File Nº 13396 Record Nº 11
[19 March 2002] SCJ, Labour Chamber, regarding compliance with judgment T-1306-01 CC.
441
See File No. 12316 Record No. 69 [October 2003] SCJ.
442
See Judgment of the SCJ, Civil Chamber acting as guardianship judge in the judgment T-006-92 CC.
443
See File Nº 13396 Record Nº 11 [19 March 2002] SCJ, Labour Chamber, regarding compliance with
judgment T-1306-01 CC; accord judgment of the SCJ, Civil Chamber, acting as a guardianship judge in T-
006-92 CC.
444
Ibid.
445
See Judgment [23 September 1994] SCJ, Civil Chamber, acting as appellate judge in judgment T-057-
95 CC; see also Judgment of the SCJ acting as trial guardianship judge in judgment T-249-95 CC (for a
different case where the SCJ, Civil Chamber, granted guardianship protection).
148
3.3.5 The 1991 Constitution as a Power-distributor with Some Rights-based
Features
Finally, the Council of State’s decision in Mr. Perea’s case was not accidental
either. It came from a mostly formal understanding of the 1991 Constitution by the
Council of State. Like the Supreme Court of Justice, the Council of State emphasises
judicial autonomy and independence as the elements that the 1991 Constitution
protects. 446 To justify the non-reviewability of its judgments, the Council of State refers
to the 1991 Constitution as establishing the Council of State as a conclusive organ of
administrative jurisdiction 447 while, simultaneously, failing to attribute the power to
review any judgment through a guardianship action to the Constitutional Court. 448 For the
Council of State, the Constitutional Court lacks the power to entertain these forms of
review since the 1991 Constitution does not mention the Constitutional Court as the
hierarchical superior of all the judiciary, 449 or the conclusive organ of this branch, and
446
See the judgment of the COS, Second Chamber, acting as guardianship judge in judgment T-258-94 CC;
accord Reference: 11001-03-15-000-2007-00441-01(AC) [15 November 2007] COS, First Chamber, citing
the Full Chamber decision of February 3rd, 1992, in the case AC-015; see also Judgment of the COS,
Fourth Chamber, acting as guardianship judge in judgment T-117-93 CC; Judgment of the COS, First
Chamber, acting as guardianship judge in judgment T-147-93 CC; and Reference: 11001-03-15-000-2005-
00145-00(AC) [2005]COS, Second Chamber.
447
See Reference: 11001-03-15-000-2006-01318-01(AC) [29 March 2007] COS, Second Chamber,
Subsection B. Accord Reference: 11001-03-15-000-2006-01226-00(AC) [1 November 2006] COS, Second
Chamber, Subsection B; Reference: 11001-03-15-000-2007-00660-00(AC) [28 June 2007] COS, Second
Chamber, Subsection B; Reference: 11001- 03-15-000-2007-01009- 00(AC) [27 September 2007] COS,
Second Chamber, Subsection B; Reference: 11001-03-15-000-2007-00560-00(AC) [5 June 2007] COS,
Second Chamber, Subsection B; Reference: 11001-03-15-000-2007-00753-00(AC) [19 July 2007] COS,
Second Chamber, Subsection A; Reference: 11001-03-15-000-2007-00751-00(AC) [23 August 2007] COS,
Subsection A; and Reference: 11001-03-15-000-2007-00489-00(AC) [14 June 2007] COS, Fifth Chamber.
448
See Reference: 11001-03-15-000-2005-00824-00(AC) [October 2006] COS, Fourth Chamber. See also
Reference: 25000-23-24-000-2006-00650-01(AC) [29 June 2006] COS.
449
See Reference: 11001-03-15-000-2005-00824-00(AC) [October 2006] COS, Fourth Chamber.
149
does not give it the last word over administrative law matters. 450 This emphasis is based
on the above explained Kelsenian view that the 1991 Constitution distributes powers and
does not impose rights-based limits once those powers are conferred.
Nonetheless, the Council of State has sometimes been open to the binding
character of fundamental rights and has understood their respect as a minimum condition
for justice to be served and for administrative action to be valid. 451 Yet, the Council of
State has also held that, according to the Constitutional distribution of powers, the
protection of such rights belongs to ordinary judges in ordinary procedures. 452 To accept
a guardianship action to protect fundamental rights, the Council of State argues, would be
to replace ordinary procedures and attribute to the Constitutional Court a supreme
jurisdiction that the 1991 Constitution does not provide. 453
Finally, unlike the Supreme Court of Justice, which denies that the 1991
Constitution embodies special protections for particular sectors of the population, the
Council of State has occasionally recognised that to respect the 1991 Constitution implies
450
See Reference: 11001-03-15-000-2004-00308-01(AC) [9 July 2004] COS, First Chamber. Accord
Reference: 11001-03-15-000-2006-01238-01(AC) [1 March 2007] COS, First Chamber. See also AC-
10203 [June 29th, 2004] COS; see also Reference: 11001-03-15-000-2007-00441-01(AC) [15 November
2007] COS, First Chamber.
451
See Reference: 25000-23-24-000-2001-0890-01(AC-1017) [2001] COS, Subsection A. Accord
Reference: 25000-23-24-000-2001-0890-01(AC-1017) [30 August 2001] COS, Second Chamber,
Subsection A; and Reference: 11001-03-15-000-2005-01430-00(AC) [16 September 2006] COS, Second
452
See Reference: 1001-03-15-000-2007-00498-00(AC) [July 12th, 2007] COS, Subsection A; accord
Reference: 11001-03-15-000-2007-00934-00(AC) [September 27th, 2007] COS, Section A; and Reference:
11001-03-15-000-2007-01026-00(AC) [October 11th, 2007] COS.
453
See Reference: 11001-03-15-000-2006-01318-01(AC) [March 29th, 2007] COS, Second Chamber,
Subsection B; accord by the same subsection of the COS, Reference: 11001-03-15-000-2006-01226-
00(AC) [November 1st, 2006]; Reference: 11001-03-15-000-2007-00660-00(AC) [June 28th, 2007];
Reference: 11001- 03-15-000-2007-01009- 00(AC) [September 27th, 2007]; Reference: 11001-03-15-000-
2007-00560-00(AC) [June 5th, 2007]; Reference: 11001-03-15-000-2007-00600-00(AC) [June 14th,
2007]; and Reference: 11001-03-15-000-2007-00753-00(AC) [July 19th, 2007]; see also Reference: 11001-
03-15-000-2007-00692-00(AC) [June 28th, 2007] COS, Second Chamber, Subsection A; and Reference:
11001-03-15-000-2007-00751-00(AC) [August 23rd, 2007] COS, Second Chamber, Subsection A.
150
giving special treatment to some individuals. 454 In conclusion, although closer to a
power-distributing conception of the 1991 Constitution, the Council of State does not
always oppose a rights-based conception of Colombia’s highest norm.
3.4 Conclusion
The Colombian high courts’ debate on GAJD is a conflict within the state and among
state institutions. In addition, there is no hierarchically superior authority commonly
recognised by the three courts that can solve the conflict. Therefore, three constitutive
elements of SLP are identifiable. The legal pluralism within the state is emphasized by
the high courts’ contrasting understandings of the 1991 Constitution. Nevertheless, the
presence of these three necessary elements and one complementary element of SLP are
not enough for SLP to exist in the Colombian controversy. In Chapters IV and V, I
explore how the Colombian case involves a tension among public institutions over
decision-making responsibilities regarding a particular subject matter. This tension is
better described as a conflicting coexistence of authority-claiming institutions, and is the
fourth necessary condition of SLP.
454
See Reference: 11001-03-15-000-2005-00960-00(AC) [October 6th, 2005] COS, Second Chamber.
151
CHAPTER IV
THE COEXISTENCE OF AUTHORITY-CLAIMING INSTITUTIONS
AND THE LACK OF OBEDIENCE
4.1 Introduction
Legal pluralist authors typically view the coexistence of competitive authority-claiming
institutions and the existence of either disobedience or accommodation as independent
indicia of legal pluralism. That is, legal pluralists usually regard each of these phenomena
as a sufficient condition of legal pluralism. Perhaps for this reason, legal pluralists tend to
discuss these phenomena separately and discretely. Nonetheless, I argue that there is a
strong connection between these features of legal pluralism. I contend that disobedience
and accommodation are species of the lack of obedience overall. I assert that, if the
subject denies recognition of authority, it follows that there is no duty to obey the ruler’s
commands. And, subsequently, a lack of obedience follows from this lack of a duty to
obey. I also assert that to generally disobey or merely comply with authority’s commands
signals the denial of recognition of authority. Finally, I argue that a refusal to recognize
the authority of a particular authority-claiming institution is indicative of the coexistence
of putative authorities, and vice-versa.
152
Accommodation as Separate Indicia of Legal Pluralism
Several legal pluralists claim that the coexistence of competitive authority-claiming
institutions is a sufficient condition of legal pluralism. Tamanaha argues that, although
coexisting and overlapping legal systems could be diverse in their internal characteristics,
they share the claim to legitimate normative authority, thus leading to simultaneous
claims of authority. 455 In the same vein, Macdonald argues that a climate of institutional
normative systems that compete for citizens’ loyalty always exists in the midst of a
situation involving legal pluralism. 456
The concept of institutionalized normative systems competing for citizens’ loyalty
goes hand-in-hand with the idea of simultaneous claims of authority. This is because
normative competition for attention to an issue is not self-referential. This competition
necessarily implies the existence of a norm-issuing authority that claims a final say over
an issue and the existence of an authority to compete against. Moreover, the goal of a
competition is to win. And aiming to win citizens’ loyalty implies an assertion by the
authority-claimant that it has the final say on a particular matter, and this type of claim
denotes potential authority over both the competing institution - or institutions - in terms
of the identity of the norm-issuer and over the individuals who decide to follow one or
the other of the institutions. Conversely, the coexistence of authority-claiming institutions
can go hand-in-hand with competition between or among these institutions. In principle,
455
Brian Z. Tamanaha, “Understanding Legal Pluralism”, supra note 13 at 1, 35, 43-44.
456
Macdonald, "Metaphors of Multiplicity", supra note 327 at 86. Accord Macdonald, “Critical Legal
Pluralism”, supra note 339 at 17 (asserting that in a situation of legal pluralism “there exist innumerable
institutionalized processes for patterning human interaction that compete for one’s loyalty”).
153
if more than one institution simultaneously claims authority over the same matter, these
authority-claiming institutions are at least tacitly competing for the final say over the
matter. 457 The legal subject over which the competing institutions claim authority will
decide which institution to follow.
In addition to competitive coexisting authority-claiming institutions, some authors
have identified disobedience to authority’s commands as a sufficient condition of legal
pluralism. Despite the fact that disobedience, viewed as a failure to conform to
authority’s commands, 458 is not necessary for legal pluralism to exist,459 the existence of
disobedience signals conflict-driven legal pluralism. 460 One way disobedience can
manifest itself is through resistance.
Roel de Langue notes that problems of obedience and disobedience are related to
the phenomenon of legal pluralism. For him disobedience may arise from conflicts of
obligations. 461 Likewise, Sally Engle Merry asserts that legal pluralism is an appropriate
framework in which to understand resistance. 462 Resistance implies opposition to a
command. A person who resists a command is, necessarily, not conforming to it, or can
457
Legal pluralism implies tension but does not necessarily result in conflict. It can also be manifested in
accommodation. Thus, this competition will exist if, in a tense atmosphere of coexistence, there is a clear
institutional demonstration of a will to have exclusive authority over the same subject matter.
458
Disobedience for reasons other than major force.
459
See Vanderlinden, "Le Pluralisme Juridique", supra note 18 at 49.
460
In Chapter II it was explained that conflict is not the only possible manifestation of legal pluralism.
Mere tension and accommodation could also characterize a legal pluralist scenario. In the case of mere
tension or accommodation, compliance with the orders of an authority-claiming institution can be present.
Note, however, that it does not follow from the act of compliance that there is recognition of the authority
of the normative issuing institution. Compliance is different from obedience: obedience, but not
compliance, involves doing what an institution commands precisely because the subject recognizes the
authority of the institution.
461
Roel de Lange, "Divergence, Fragmentation and Pluralism" in Hanne Petersen and Henrik Zahle, ed,
Legal Polycentricity, Consequences of Pluralism in Law ( Brookfield, Vt.: Dartmouth Pub. Co., 1995) at
115.
462
Merry, supra note 15 at 890.
154
be said to disobey it. Thus, for Merry, disobedience - an element present in resistance -
can plausibly be framed within legal pluralism.
In a similar vein, Vanderlinden suggests that the existence of armed resistance
movements working against an official regime represents a case of antagonistic legal
pluralism. These armed resistance movements pursue an idea of justice different from
that of the state. Thus, in this situation, two versions of what is just confront each other:
one version regards clandestine activities against the state as acts that are to be punished,
while the other version views resistance as the only morally permissible response. 463 It is
axiomatic that one must be resisting something if resistance in fact exists. The
“something” being resisted is the challenged regime and its commands. Therefore,
disobedience exists in a case of antagonistic legal pluralism.
Finally, for some legal pluralists, accommodation, interaction, and mutual
influence constitute the proper dynamics for the relation between or among different
normative orders. 464 Normative orders are not static. Actors in these normative orders
constantly reformulate them from within and accommodate the normative orders with
one another. 465
Descriptively, legal pluralists argue that accommodation does not deny plurality.
As Vanderlinden asserts, the fact that there is no opposition, but rather complementarity,
between state law and non-official legal orders does not exclude pluralism. In the case of
complementarity, the determining feature of pluralism is that of the absence of
submission to state control. That is to say, for legal pluralism to exist in a state of
463
464
See Macdonald, "Les Vieilles Gardes", supra note 14 at 256-257 and 262-263.
465
See generally Macdonald & Kleinhans, "What is a Critical Legal Pluralism?", supra note 14.
155
complementarity it is necessary that there be a voluntary accompaniment—one institution
being willing to follow the other—rather than a surrender of one normative system to the
other, in which the will of one institution disappears. 466
Along similar lines, Gordon Woodman points out that accommodation is a
concept not excluded by pluralism. Analyzing the accommodation of state law with other
coexistent laws, Woodman affirms:
[No] writer has suggested that legal pluralism exists only when there are
contradictions between the constituent elements, nor that the state or any
other legal order cannot accommodate itself to other legal orders with which
it coexists. 467
An agreement does not necessarily involve permanent submission, and
accommodation can coexist with latent autonomy. 468 In other words, a person can follow
another because she or he wants to do so and can simultaneously still be autonomous.
Beyond these descriptions, some legal pluralists search for continuous mediation
and accommodation among the legal orders existing in a given context. 469 Within
accommodation each legal regime has its own conception of law, but respects the
conception of the others and, simultaneously, takes into account how other legal regimes
evaluate it from their conception of law. 470
In a descriptive or prescriptive state of accommodation, it is possible to think
about one legal order respecting the regulation of another legal order, but not because of a
belief that one legal order has authority over another. In accommodation there is still a
466
467
Woodman, "Ideological Combat and Legal Observation", supra note 17 at 34, 35, footnote 7.
468
Ibid.
469
See Macdonald, "Critical Legal Pluralism", supra note 339 at 18 and 19.
470
Ibid at19.
156
claim of authority and final say over the subjects, but the attempt to impose one
authority-claimant’s view over the other authority-claimant is absent.
Accommodation as Correlated Indicia of Legal Pluralism
So far, legal pluralists have made separate arguments regarding the coexistence of
competitive authority-claimants and disobedience or accommodation as sufficient
elements of legal pluralism. I now argue that disobedience and accommodation belong to
the same overall species: lack of obedience. I also argue that there is a strong connection
between the lack of obedience and the coexistence of competitive authority-claimants. I
develop my argument based on political theory scholarship on the doctrine of political
authority. My inquiry into political theory regarding the ideas of authority and obedience
is justified by the essential role these concepts play in the doctrine of political authority
and the consequent in-depth study of their content and scope within this doctrine.
By taking into account the doctrine of political authority, my intention is not to
prove that there is an actual correlation between political authority and the citizen’s duty
to obey. That is to say, I do not argue that citizens have a general duty to obey
governmental commands. Rather, I consider a premise that has not yet been questioned
by political theorists: from a general duty of obedience follows a subject’s recognition of
state authority. Based on this premise, I conversely argue that, if the alleged subject of
authority denies the authority of the ruler, it follows that the subject does not have a duty
to obey the ruler’s commands. And from the lack of a duty to obey follows a lack of
obedience. Obedience implies acting out of a sense of duty and, in particular, following a
157
command because one has a duty to obey the commander. It is following what the
authority-claimant says just because the authority-claimant says it. 471 Thus, if there is
no duty to obey the law, it is, as a conceptual matter, impossible for one to obey the law
(in the relevant sense) because obedience means acting out of a sense of a duty to obey
authority’s commands. I also argue that—since obedience to authority’s commands is an
act expected from authority472 —failure to obey authority’s commands signals the denial
of recognition of authority. 473
And the denial of an authority’s recognition signals the coexistence of putative
authorities. If one does not recognize putative authority A this is because one is placing
A’s authority over putative authority B. 474 Alternatively, if one does not recognize A’s
authority this is because one is claiming this authority for oneself over the same subjects
as putative authority A, and even over A itself. 475 Thus, coexistence of authority-claiming
institutions exists.
As an example of this corelationship between disobedience and the coexistence of
authorities, consider the interaction between the Colombian guerrilla movement auto-
471
Simmons differentiates between reasoned acceptance and compliance with an order and obedience to an
order. While the former involves a judgment regarding the content of the order, the latter is content-
independent or absent of judgment: I obey you because you command me to do something. A moral duty to
obey the law would be a duty to do what the law says because the law says it. See Wellman & Simmons,
supra note 21 at 95. Accord Jeffrey H. Reiman, In Defense of Political Philosophy; a Reply to Robert Paul
Wolff’s In Defese os Anarchism (New York: Harper and Row, 1972). According to Reiman, “A person who
‘obeys’ a command because it coincides with his autonomous decision is not obeying authority.” ibid at
11.
472
See Green, The Authority of the State, supra note 23 at 60.
473
Failure to obey can be manifested in disobedience to mandates or in compliance with them, as
acceptance of authority’s mandates for reasons different from the issuer of the command. Authority’s
commands could be followed despite the non-recognition of authority; in this case, however, there would
not be an act of obedience but rather one of compliance or content-dependent and reasoned acceptance. We
shall, thus, experience a case of accommodation within legal pluralism.
474
I do not include in my claim the case of the anarchist who, after denying the authority of the authority-
claiming institution, asks for autonomy or self-government.
475
This is not the same case of the anarchist. The anarchist does not aim to rule any subject. Her goal is
only self-government.
158
denominated Revolutionary Armed Forces of Colombia – Popular Army (FARC-EP or
the FARC) and the Colombian government. In principle, the Colombian state claims
exclusive jurisdiction over all Colombian territory. From this claim of jurisdiction
follows an implicit, basic command before any exercise of jurisdiction has taken place;
this command takes the form of a tacit prohibition. From this assertion of jurisdiction,
other agents are tacitly prohibited from exercising jurisdiction over the same territory. 476
Although some have argued that part of the FARC’s agenda is to require the
Colombian government to comply with the government’s functions as the provider of
public services for all the Colombian population, 477 others have argued that the FARC
aims to build a new government, one in which the FARC will replace the existing
Colombian governmental structure. 478 In order for this goal to be achieved, the FARC has
established an alternative citizenship project (alterciudadanía), a project in which the
population obeys the FARC rather than the official Colombian government. 479 By
building up its project of alterciudadanía, the FARC disobeys a tacit prohibition issued
by the Colombian government, namely that no entity other than the Colombian
government shall rule over its sovereign territory, which includes the right to paramount
authority status in citizenship issues. Besides defying the Colombian government’s
monopoly of jurisdiction by establishing a parallel citizenship system, the FARC, through
476
This tacit prohibition of the exercise of jurisdiction will exist unless there is express authorization by the
state. Think, for example, about the Colombian constitutional authorization for indigenous peoples to
exercise their jurisdiction under the framework of the 1991 Constitution (Art. 246).
477
See María Clemencia Ramírez, "The Politics of Recognition and Citizenship in Putumayo and in the
Baja Bota of Cauca: The Case of the 1996 cocalero movement", (2001) online: Reinventing Social
Emancipation <http://www.ces.fe.uc.pt/emancipa/research/en/ft/marchas.html>.
478
See Juan Guillermo Ferro & Graciela Uribe, "Las Contradicciones Políticas Presentes en las Marchas de
los Cocaleros del Departamento de Caquetá, Colombia (1996)" (2002) 49 Cuadernos de Desarrollo Rural
59 at 71-77.
479
Ibid at 67.
159
its establishment of a separate army, also defies the prohibition on the private use of force
that follows from the Colombian government’s claim to a monopoly on the legitimate use
of force within its sovereign territory. In addition, when the FARC decides to actually
rule over a territory, it ignores the rules and jurisdiction of the Colombian government,
and simultaneously disobeys the regulation of subject matter and jurisdiction that is
claimed by the government. 480 In the case of the FARC, disobedience of the laws of the
Colombian government sends two messages: first, that the FARC does not recognize the
Colombian government as an authority and, second, that the authority that the FARC
denies by disobeying the Colombian government is assumed by the FARC.
The Colombian government, on the other hand, does not recognize the FARC as
an authority and, simultaneously, disobeys the FARC. The fact that the Colombian
government does not recognize the FARC as an authority is evidenced in the Colombian
government’s designation of the FARC as a “terrorist group,” and its denial of any formal
belligerent status to the FARC. 481 In addition, the tacit prohibition that follows from the
exercise of jurisdiction by the FARC and the commands derived from this exercise are
not only disobeyed, but are also directly confronted by the Colombian national army.
This military strategy aims to eliminate the FARC in parts of the Colombian territory
where it still has a significant presence or is trying to assert its armed movement. 482
480
See Juanita León, Country of Bullets: Chronicles of War, translated by Guillermo Bleichmar
(Albuquerque: University of New Mexico Press, 2009) at 23-45.
481
"Comunicado de Prensa 062" (2008) online: Presidencia de Colombia
<http://web.presidencia.gov.co/comunicados/2008/enero/62.html>. According to the President of Colombia
“all violent groups in Colombia are terrorists. Terrorists are the FARC, the ELN and the paramilitary
groups that have not been dismantled” [translated by the author].
482
"Gobierno Anuncia Ofensiva Militar Contra las FARC" (2009) online: Caracol Noticias
<http://www.caracol.com.co/nota.aspx?id=787449>.
160
The Colombian government and the FARC claim authority over the Colombian
territory and disobey each other’s commands. By continuously disobeying each other’s
commands, both entities deny that the other has authority. The authority that is denied
through disobedience is at the same time asserted by the disobeying entity. This case
shows how disobedience and the coexistence of putative authorities go hand-in-hand.
As for accommodation - a species of the lack of obedience - as a correlative
feature of the coexistence of putative authorities, one may think about a peace process
where the FARC and the Colombian government make mutual concessions:
a. Both parties agree to a ceasefire during negotiations.
b. The Colombian government allows the FARC to have control over certain
territory during negotiations.
c. The FARC agrees to stop kidnapping members of the civilian population during
negotiations.
Neither the Colombian government nor the FARC is obeying the other since all
the actions are followed autonomously and for each party’s convenience, after previous
agreement. This would be a case of compliance rather than obedience. Compliance would
not be due to the authority of the other agent or to the acknowledgment of any such claim
to authority. And this lack of obedience, even during the time of negotiations, will signal
a lack of recognition of the other party’s asserted authority. 483
To further elaborate the relationship between lack of obedience and a denial of
authority, I shall first describe what authority consists of—in particular, I touch upon its
content-independent and deliberation-excluding duty to obey. As will be further
483
See León, supra note 480 at 74-94 (narrating the events of Caquetania a temporary government
exercised by the FARC over Caqueta’s territory during the peace process that took place under the
presidency of Andrés Pastrana).
161
elaborated, this type of duty exists even if one considers that an institution must comply
with certain substantive elements in order to be legitimate. The content-independent duty
to obey remains because, once the institutional authority has been recognized as
legitimate, its commands must be followed independently of their content. If a subject
disobeys the relevant commands due to their arbitrary content, she is questioning the
existence of legitimate authority itself. Later, I elaborate on the relationship of authority
to the concepts of obedience and lack of obedience: to accept the duty to obey implies
recognizing authority; to no recognize authority implies not accepting a duty to obey; and
to generally not accept the duty to obey signals a refusal to recognize the relevant
authority.
Before elaborating on the abovementioned ideas, it is important to keep in mind
that, as a species of legal pluralism, SLP also includes the relationship between non-
recognition of an authority-claiming institution, which in this case is an official
institution, and the lack of obedience. The inclusion of this relationship within SLP is
supported by the analysis of the concept of the rule of law where governmental
institutions are supposed to be subjects of the law—and, thus, of the lawmaker. 484 I
develop this idea in Chapter V.
4.3.1 Content-independence
Among political theorists, there is a wide acceptance of authority as a right to rule that
implies a content-independent duty to obey on the part of those subject to the authority.
Accordingly, if one has authority or holds “the right to rule those who are subject to
484
The lawmaker could be either the legislature, the courts—as far as their precedent is binding—or the
government—regarding issues of its jurisdiction.
162
it,” 485 one does not need to justify one’s command in order for one’s subjects to have a
duty to obey. 486 A command coming from an authority is intended to be a reason to obey
by itself - a content-independent reason. 487 Before elaborating on the content-independent
constitutive element of authority, it is important to clarify that this element does not
imply absolutism; it merely implies that authority, properly constituted, gives us a reason
to obey, independent of the content of the command. Since authority needs to be properly
constituted, a putative authority’s commands are not binding unless the authority
possesses the elements that render it a legitimate authority.
As a content-independent notion, authority does not require persuasion of its
subjects. Indeed, Hannah Arendt suggests that an authority who aims to persuade its
485
See Joseph Raz, "The Obligation to Obey: Revision and Tradition" in William A. Edmundson, ed, The
Duty to Obey the Law: Selected Philosophical Readings (Lanham, Md. : Rowman & Littlefield Publishers,
1999) at 160. See also Robert Paul Wolff, "The Conflict Between Authority and Autonomy" in William A.
Edmundson, ed, The Duty to Obey the Law: Selected Philosophical Readings (Lanham, Md. : Rowman &
Littlefield Publishers, 1999) at 63-64 and 66; and Rolf Santorius, "Political Authority and Political
Obligation" in William A. Edmundson, ed, The Duty to Obey the Law: Selected Philosophical Readings
(Lanham, Md.: Rowman & Littlefield Publishers, 1999) at 144-145 (defining political authority as the right
to engage in certain acts not available to private citizens and differentiating political authority from mere
power).
486
In addition to the right to command, authority also implies the right to legislate, to grant permissions, to
give authoritative advice, and to adjudicate, among many other rights. See Raz, The Authority of Law,
supra note 28 at 11. Nevertheless, since the majority of political science doctrine is built around the idea of
authority as the right to command, without denying the other rights implicit in authority, I will refer
exclusively to the right to command.
487
See Hart, Essays on Bentham, supra note 22 at 255. In the same vein, Hobbes claimed that
“COMMAND is where a man saith, Doe this or Doe not this, without expecting other reason than the Will
of him that sayes it.” Here, authority as the source of command is the only reason provided to ask for
obedience. Opposite to this, “COUNSEL is where a man saith Doe, or Doe not his, and deduceth his
reasons from the benefit that arriveth by it to him to whom he saith it.” Leviathan pt. II, ch. 25, cited by
Green, The Authority of the State, supra note 23 at 37. Green also cites Locke in his Second Treatise (ss.
87) for whom “All private judgment of every particular member being excluded, the community comes to
be umpire, by settled standing rules; indifferent and the same to all parties.” See ibid at 37. But see Raz,
who argues that authoritative commands are not properly characterized by virtue of being content-
independent reasons for action, since this is not a unique feature of authoritative commands (promises and
vows also generate content-independent reasons for action). What is particular of authoritative commands,
for Raz, is that they are peremptory reasons for action, and they impose obligations. Raz, The Morality of
Freedom, supra note 20 at 35 and 37. Note, however, that Raz does not deny that besides being
peremptory, authoritative commands are also content-independent.
163
subjects in order for them to obey would be a contradiction in terms. 488 In this vein, for
example, judicial decisions are to be obeyed not because they are correct but because
judges are authorized by general law to decide a case within the system of governmental
authority. 489 Also, because of the content-independent notion of authority, one does not
need to be an expert on a matter in order to rule. 490 One must differentiate theoretical or
expert authority, which bears on reasons we have to believe X, from practical authority,
which bears on reasons for action.
Along with its content-independent element, the duty to obey authority excludes
deliberation. To Hart, a content-independent and deliberation-excluding duty to obey is
the nucleus of the general notion of authority, 491 and is the basis for legal authority. 492
According to the deliberation-excluding element of authority, the duty to obey does not
leave subjects room for discussion of the merits of an order issued by the authority. 493 A
command is not intended to function as one among various reasons for acting, but as the
488
Hannah Arendt, "What Was Authority?" in Carl J. Friedrich, ed, Authority (Cambridge, Massachusetts:
Harvard University Press, 1958) at 82; see also Green, The Authority of the State, supra note 23 at 27-29.
But see Heidi M. Hurd, Moral Combat, First ed (Cambridge; New York: Cambridge University Press,
1999) (arguing that the nature of law’s authority is not practical authority, but epistemic authority, expert
authority in particular).
489
See Vinx, supra note 3 at 152. Accord Green, The Authority of the State, supra note 23 at 28.
490
Ibid at 27. But see Raz, The Morality of Freedom, supra note 20 at 52-53 (arguing that the point of view
of an authority takes into account the same sources that one would take into account independently. In this
way, theoretical authorities resemble practical ones).
491
Hart, Essays on Bentham, supra note 22 at 256. But see Kent Greenawalt, "Legitimate Authority and
the Duty to Obey" in William A. Edmundson, ed, The Duty to Obey the Law: Selected Philosophical
Readings (Lanham, Md. : Rowman & Littlefield Publishers, 1999) at 177 – 187 (arguing that there is no
necessary linkage between a legitimate government and a duty to obey. The duty to obey adds effectiveness
to a legitimate government, but the former does not follow from the latter); and M. B. E. Smith, "Is there a
Prima Facie Obligation to Obey the Law?" in William A. Edmundson, ed, The Duty to Obey the Law:
Selected Philosophical Readings (Lanham, Md. : Rowman & Littlefield Publishers, 1999) (denying the
necessary relationship between legitimate authority and a general duty to obey).
492
Hart, Essays on Bentham, supra note 22 at 268.
493
See Green, The Authority of the State, supra note 23 at 59, and 262-263.
164
reason for doing so; it requires action and, thus, is peremptory. 494 Since authority implies
a deliberation-excluding duty to obey, unless there is a jurisdictional error, 495 one is
supposed to accept a valid decision notwithstanding one’s opinion that it is wrong. 496
Although Raz agrees with the fact that authority is to be obeyed by a subject
irrespective of the subject’s judgment of the merits of the authority, he argues that it does
not follow from this that an authoritative command inhibits independent deliberation or
any discussion or reflection on the merits of action. Subjects can judge the content of a
rule. Nevertheless, Raz argues that subjects should accept that they must obey even if,
balancing their own arguments, they would have reached a different conclusion. Thus,
authorities are supposed to pre-empt, not eliminate, judgment on the merits of an
authoritative command. 497
4.3.2 Legitimate Authority
The elements of content-independence and deliberation-exclusion are compatible with
the notion of a legitimate authority. In order to have legitimate authority, some political
theorists argue that the subject should consent to the exercise of authority over her. Other
authors argue that general consent is far too utopian and that authority is legitimate in the
absence of the subject’s approval when the authority-claimant has met some substantive
conditions. Nonetheless, as will be explored, neither of these approaches assimilates
practical authority with expert authority and, thus, with the content of the mandate.
494
Hart bases his assertion on the following Hobbes quote: “Command is when a man saith do this or do
not do this yet without expecting any other reason than the will of him that saith it.” (Leviathan, Chap
XXV). See Hart, Essays on Bentham, supra note 22 at 253.
495
A jurisdictional error renders a decision void. A decision taken under a jurisdictional error, in principle,
is not binding as authoritative directive. See Raz, The Morality of Freedom, supra note 20 at 62.
496
See Vinx, supra note 3 at 152.
497
See Raz, The Morality of Freedom, supra note 20 at 39 – 40. For a longer explanation of the pre-
emptive thesis, see ibid at 46.
165
As noted, some political theorists argue that practical authority does not exist
without the subject’s consent. For consent theorists, one can unilaterally claim to have
authority, but the claim to have authority as the right to be obeyed—the prescriptive
aspect of authority—does not follow from this claim. According to consent theorists, one
owes a duty of obedience—that is to say, one recognizes another’s legitimate authority -
only after a deliberate act that forms a voluntary agreement or undertaking. For these
theorists, it is the actual, personal consent that binds one to the commands of an authority,
though consent in principle can be express or tacit.498 Having authority comes only after
those being ruled consensually acknowledge the ruler as their authority. 499
The fact that authority needs the subject’s consent, however, does not mean that
there is a nexus between practical authority and the content of the authority’s mandates.
One claims authority when one makes demands of another and expects that these
demands will be taken as binding reasons for action independent of their content. And
one recognizes authority when one takes these content-independent demands as
binding. 500
The content-independent duty to obey a legitimate authority also exists in the
theories of authors for whom the legitimacy of authority lies in non-consensual elements.
Evan Fox-Decent claims that what distinguishes mere power from legitimate authority is
498
See Wellman & Simmons, supra note 21 at 116-117 (for a description of consent theories); see also
Green, The Authority of the State, supra note 23 at 161-162 and 166.
499
Jeremy Waldron, states that, for consent theorists, to uphold an authority as a legitimate one, consent is
necessary. See Jeremy Waldron, "Special Ties and Natural Duties" in William A. Edmundson, ed, The Duty
to Obey the Law: Selected Philosophical Readings (Lanham, Md. : Rowman & Littlefield Publishers, 1999)
at 290. See also Raz, "The Obligation to Obey", supra note 485 at 172.
500
See Green, The Authority of the State, supra note 23 at 59 and 60. Green uses a clear, logical formula to
express the relational but content-independent notion of authority. For Green, “A has authority over B if
and only if the fact that A requires B to Z (i) gives B a content-independent reason to Z and (ii) excludes
some of B’s reasons for not-Z-ing.” See ibid at 41-42.
166
the state acting as a fiduciary agent vis-à-vis its subjects. 501 The more the state fulfils its
fiduciary obligations the more legitimate its authority is and vice versa. Despite the fact
that, for Fox-Decent, authority must be legitimate to be differentiated from mere power,
the binding character of the mandates of authority, as far as it complies with the relevant
legitimacy requirements, does not depend on the merits of the particular law. Therefore,
authority is content-independent within the limits that define it as legitimate.
A relevant exponent of a non-consensual based notion of authority is Joseph Raz.
Raz recognizes a duty to obey just institutions. 502 Raz’s notion of authority is built on
three key theses: the pre-emptive thesis, the dependence thesis and the normal
justification thesis. For Raz, authority’s reasons are pre-emptive reasons for action. A
pre-emptive reason is one that, after the authority takes into account the reasons that
would have applied to the subject of authority before the rule of authority, excludes or
replaces these reasons as reasons for action. 503
501
For Fox-Decent, neither express or tacit consent nor the reception of benefits entails a duty to obey. It is
from authority legitimated by the fiduciary duty that follows a prima facie defeasible duty to obey the law.
It is the trust-based fiduciary relationship, and the state’s duty to act for the benefit of citizens—a duty that
follows from the actual exercise of public power by the state and the incapacity of citizens to assume these
public tasks - which legitimate the state’s power and create a prima facie duty to obey the state’s mandates.
Evan Fox-Decent, Sovereignty's Promise: The State as Fiduciary (Oxford: Oxford University Press,
Forthcoming 2011).
502
Raz, The Morality of Freedom, supra note 20 at 66. Nonetheless, Raz does not recognize a general duty
to obey the law. That is to say, for Raz there is a case-by-case duty to obey authority when, regarding the
command in question, the dependence and the normal justification theses are complied with.
503
Ibid at 42, 46 and 59. Margaret Martin argues that, in his piece “The Problem of Authority: Revisiting
the Service Conception,” Raz changed his mind on the content-independent character of the norm. She
asserts that for Raz the content of the norm determines law’s normative force. Margaret Martin, "Raz's
Morality of Freedom: Two Conceptions of Authority" (2009, Draft) online: University of Western Ontario
< http://www.law.uwo.ca/publiclaw/PublicLaw_Documents/Martin_Raz_Morality.pdf>. For so arguing,
Martin cites the following paragraph: “So when an action is rightly required by authority (i.e., when there
are conclusive reasons for it, independently of the authority's intervention), we may (in both senses) do as
we are required either because we are so required, or for the reasons that justify the requirement, or both.”
(Joseph Raz, Between Authority and Interpretation (Oxford: Oxford University Press, 2009) at 144-5).
Nonetheless, Martin does not shows how, despite Raz’s alternative character of the reason for action (i.e.
either because it is required or due to the reasons that justify the requirement), the mere fact of something
having been required does not constitute by itself a content-independent reason for action.
167
Authority-based commands are pre-emptive reasons for action only when they
come from a legitimate authority. 504 A legitimate authority is one that, first, is supposed
to base its directives on reasons that directly apply to subjects as reasons for action under
the circumstances regulated by the directive, reasons that Raz calls dependent reasons. 505
Also, for an authority to be legitimate its mandates must lead to a better-off result for the
subject; that is, the subject would not have gotten the same result for herself acting
individually under the dependent reasons—what Raz calls the normal justification
thesis. 506 In sum, an authority is a legitimate one if, having taken into account the
dependent reasons, it is in a position to rule such that its subjects would be better off than
if they decided and acted by themselves based on the relevant dependent reasons. 507 As
far as the elements for the dependence and normal thesis are present in a particular case,
the mandate of the authority should be followed as pre-emptive of further judgments,
independent of its content.
In addition to arguing for a duty to obey institutions only if they are just, Raz
argues for a qualified and partial duty to obey these institutions. The appropriateness of
the partial duty will be determined by the application of the normal justification thesis to
each individual, given his or her expertise on the subject matter the authority is ruling
over and his or her ability to get a better outcome. 508 A general duty to obey just
institutions will exist if an individual consents to this general duty. This will be a
504
See Raz, The Morality of Freedom, supra note 20 at 46.
505
Ibid at 47.
506
Ibid at 53. Due to the better outcome of authority’s mandates vis-à-vis the course of action that an
individual will follow without the presence of authority, authority’s reasons become pre-emptive reasons.
Ibid at 69.
507
See ibid at 55. A complete justification of authority, a legitimate authority, implies the addition of the
dependence and the normal thesis in order to accept authority and the absence of reasons to reject it (e.g.
that there is no other institution with a better claim of authority on the same subject matter). Ibid at 56-57.
508
Ibid at 100.
168
voluntary obligation. 509 This general duty will also exist if the subject, following her
belief in the obligation to obey the law, has an attitude of respect for law. This is what
Raz denominates as a “semi-voluntary performative submission.” 510 And yet, neither
consent nor respect will be enough to generate a general duty to obey authority if this is
not a just authority; consent to authority will be binding only if it is given to just
authorities. 511
Other authors argue that the subject’s belief in authority - or the subject’s
recognition of authority as such - is central to determining the existence of legitimate
authority. From the perspective of the social sciences, this belief in authority can be a
sufficient element of legitimate authority to exist. Weber considers that authority is a
species of power–or ability to carry out one’s will—that differs from mere power since it
is legitimate domination. 512 Weber notes that the legitimacy of an order consists of its
being considered binding by the subject. 513 This legitimacy, according to Weber, can
come from the subject’s beliefs on: sanctity of age, which creates traditional authority; 514
legality of enacted rules, which creates legal-rational authority; 515 or devotion to the
exemplary character of an individual, which creates charismatic authority. 516 Likewise,
509
Ibid at 99. Note that Raz clarifies that if someone does not give her general consent to a just
government, she is guilty of no wrong. In his Ethics in the Public Domain, Raz is clear that general or
unqualified consent to government is impossible to give since it will violate autonomy. It is only possible to
give consent if consent is given to a government that respects autonomy and does not commit atrocities (i.e.
a legitimate government). Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and
Politics (Oxford: Clarendon Press, 1994) at 346, 348, 350.
510
511
Ibid at 90, 92.
512
See Anthony T Kronman, Max Weber (London: E. Arnold, 1983) at 37.
513
See Max Weber, Economy and Society: an Outline of Interpretive Sociology, vol I, Guenter Roth and
Claus Wittich eds, E. Fischoff et al. trans (Berkeley: University of California Press, 1978) at 31.
514
See Kronman, supra note 512 at 45.
515
Ibid.
516
Ibid at 47.
169
to determine the presence of legitimate authority, Weber considers it relevant that the
subject treats the claims of legitimate authority as valid.517 And, according to Weber, if
the authority claimant is legitimated by any of these three sources of authority, the
command is to be followed because it comes from authority. 518 Following the Weberian
idea of the subject’s belief as a sufficient element of legitimate authority, Charles Taylor
argues that legitimacy is connected to society members’ attitudes and beliefs. 519 For
Taylor, legitimacy exists when members of a society understand and view their society as
legitimate and are ready to embrace the burdens that belonging to this group entail. 520
Conversely, there is no legitimacy if society members’ belief in institutional legitimacy is
lacking. 521
The idea that the subject’s recognition of authority is relevant for a legitimate
authority to exist also can be found in political philosophy. Nonetheless, for political
philosophers, the subject’s recognition of authority as such is a necessary, but not a
sufficient, element of legitimate authority. Although A. John Simmons does not support
the idea of a subject’s “belief” in authority as a sufficient element for legitimate authority
to exist, for him, a subject’s recognition of authority as such, through the subject’s
consent, is also relevant for its legitimacy. Simmons distinguishes between the state’s
justification and the state’s legitimacy. Following Locke’s conceptual distinction between
517
See Weber, supra note 513 at 214-216.
518
See Kronman, supra note 512 at 39.
519
Simmons recognizes that there is a tendency of social scientist to join legitimacy with subjects’ attitude
of approval towards state’s actions and burdens. This approach, Simmons notes, is inspired by Weber’s
concept of belief in the legitimacy of power as constitutive of its legitimacy. See A. John Simmons,
Justification and Legitimacy: Essays on Rights and Obligations (Cambridge, UK ; New York, NY, USA
Cambridge University Press, 2001) at 131-133 [Simmons, Justification and Legitimacy].
520
See Charles Taylor, "Alternative Futures: Legitimacy, Identity and Alienation in Late Twentieth
Century Canada" in Alan Cairns & Cynthia Williams, eds, Constitutionalism, Citizenship and Society in
Canada (Toronto: Toronto University Press, 1985) at 186-187 [Taylor, “Alternative Futures”].
521
Ibid at 190.
170
justification and legitimacy, 522 Simmons notes that there must be moral grounds that
justify the existence of the state. 523 For Simmons, a state is justified if it is shown that,
overall, it is morally permissible and preferable to all other realizable proposals different
from the state proposal. 524 Nonetheless, he claims that legitimacy, or the state’s right to
command and coerce its subjects, needs the subject’s consent, a consent that can be
manifested by the subject wilfully receiving the benefits of the state or by other
significant moral relationships between the subject and the state. 525
Simmons worries about the self-referential problem of what he calls the social
sciences’ attitudinal concept of legitimacy (i.e. the subject’s “belief” in the legitimacy of
authority as a sufficient element for this legitimacy). The circularity of this argument can
be summarized as follows: the state is legitimate because I say so. 526 In addition,
Simmons has some de facto concerns. He is concerned about the means by which an
“evil” state can construct and shape the beliefs of its subjects. For example, a state could
brainwash its citizens in order to gain their belief in its legitimacy. 527 Simmons argues
that this means of gaining the subject’s approval will not be possible if subjects must
consent to the State, and not simply believe in it. This is because consent is only valid if it
is freely provided and given in a legitimately informed manner. 528 Simmons notes a final
possible objection to what he calls attitudinal accounts of legitimacy: they provide no
522
See Simmons, Justification and Legitimacy, supra note 519 at 128-129.
523
Ibid at 125.
524
Ibid at 125-126.
525
Ibid at 130, 137, 138 and 155.
526
Ibid at 133.
527
Ibid at 134.
528
Ibid. For consent as requiring a free and informed consenter, see ibid at 176.
171
moral objective reference point for the subject to use in order to validate whether the state
is legitimate or illegitimate. 529
Leslie Green serves as a conciliatory point between social scientists and
Simmons’ objections to attitude-based accounts of legitimate authority. Green asserts that
legitimate authority is a form of triadic social relation in which there is 1) a person’s
claim to authority, 2) a subject’s recognition of this authority, and 3) a claim to and
recognition of authority that involves the fact that the subject regards the person’s
commands as content-independent reasons for action. 530 Authority exists only if these
three elements are present. In Green’s words:
Someone claims authority when he makes requirements of another which he

intends to be taken as binding, content-independent reasons for action; his
authority is recognized when another so treats the requirements; and in the
standard case, authority exists when its claims are generally recognized.
From either point of view, the authority is regarded as legitimate, and this is
a privileged point of view in its identification. 531
Following this statement on authority, Green asserts that, for a state to exist, its
subjects’ dispositions and attitudes of acceptance toward the state’s claims must be taken
into account. 532 Subjects accept authority if they consider its commands to be binding,
content-independent reasons to act. 533 Likewise, for Green, a state’s existence depends on
the subjects’ general obedience to the state. 534
529
Ibid at 133, footnote 29.
530
See Green, The Authority of the State, supra note 23 at 19, 40 and 42.
531
Ibid at 60.
532
Ibid at 73. See also Leslie Green, “Support for the System” (1985) 15:2 British Journal of Political
Science 127 at 140-141.
533
Ibid at 75 and 151. See also, Leslie Green, "Who Believes in Political Obligation?" in William A.
Edmundson, ed, The Duty to Obey the Law: Selected Philosophical Readings (Maryland: Rowman &
Littlefield Publishers, 1999) at 309.
534
Ibid at 239.
172
Although Green states that in the above-described triadic social relationship
authority is morally neutral, 535 he does not believe that authority can command subjects
to agree to acts of gross immorality or that state’s authority could be unlimited. On the
contrary, Green asserts that the state’s authority may be limited, and indeed that the
state’s authority is better when the range of conduct authority regulates is limited. 536
Moreover, for Green, in the same way that promises to act in a grossly immoral way do
not bind, 537 authority cannot command its subjects to commit acts of gross immorality. In
Green’s conception of authority, authority’s validity would be intolerable if it had no
limits. 538 Green’s notion of the obligation to obey is neither absolute in range, nor does it
include fundamentally unjust circumstances. 539
Moreover, the scope of authority, or the range of activities that can be regulated
by authority, does not have to be unlimited in order for authority to exist. Green asserts
that authority can exist only intra vires, or within the range of authority of a person or of
an official body. 540 Therefore, Green argues for an attitudinal and, in principle, morally
neutral concept of authority, but not for a morally unlimited or unbounded one.
Simmons’ fears of state abuse of the attitudinal approach to legitimacy can be
dispelled by taking into account Green’s idea of moral limits constitutive of authority.
That is to say that no authority can command gross immoralities. Taking into account
535
See Green, The Authority of the State, supra note 23 at 59 and 61.
536
Ibid at 61.
537
Ibid at 47.
538
Ibid at 48 and 240. See also Leslie Green, "Law and Obligations" in Jules Coleman & Scott Shapiro,
eds, The Oxford Handbook of Jurisprudence & Philosophy of Law (New York: Oxford University Press,
2004) at 522 [Green, “Law and Obligations”].
539
See Green, "Who Believes in Political Obligation?", supra note 533 at 309. Note that Green is
describing rather than supporting political obligation understood as the duty of all persons to obey all the
law.
540
See Green, The Authority of the State, supra note 23 at 50 and 51.
173
Simmons’ division between justification and legitimacy, one can say that for a state to be
justified it should have some minimal moral boundaries; and for a state to be legitimate,
subjects must recognize its authority.
Political philosophy and social sciences can also be reconciled by taking into
account social science’s descriptive account of the modern subject. Simmons’ objections
to attitudinal approaches stem from his argument that they permit the subject’s belief in
the state to be gained through state acts of brainwashing and the like. And yet, for the
social scientists who base legitimate authority in subjects’ beliefs in authority, an
authority that could manipulate its subjects would not be possible. For instance, Taylor
would not accept that attitudinal legitimacy could be gained through a controlling or
brainwashing authority. This is because, from a descriptive perspective, Taylor argues
that, in modern societies, individuals claim to be democratically self-ruled and
autonomous. Moreover, in modern times, individuals accept subordination only if it is
consented to. 541 In this sense, Taylor's concept of legitimacy based on subjects’ attitude,
at least in modern times, seems to be close to Simmons' prescriptive idea of legitimacy
based on subjects’ consent.
Additionally, the individual in modern society, as described by Taylor, recognizes
human dignity. The dignity of an individual in modern society, according to Taylor, lies
in one's ability to secure one's rights even if they are not protected by a political majority,
or in the chance to participate in the majoritarian rule making process.542 If the modern
individual, by a descriptive account, considers being able to oppose the majority in order
to claim his rights or to be part of the majority that determines the mandates, it is not
541
See Taylor, Alternative Futures, supra note 520 at 183, 184, and 187-189.
542
Ibid at 210-211.
174
likely that, as Simmons fears, this same individual could be manipulated by authority
coming from this majority.
Moreover, from a descriptive perspective, Taylor recognizes that even legitimacy
under a despotic model would have a limit, namely the point "where oppression drives
the subjects to revolt." 543 Individuals can change their beliefs and, thus, withdraw
legitimacy from the institutions they used to believe in. 544
Provided that Green’s limits on state authority and Taylor’s characteristics of the
moral individual are present, it is possible to argue that legitimate authority exists when
subjects recognize this authority. And subjects recognize this authority, as Green notes,
when they take its requirements as binding, content-independent reasons for action (i.e.
when subjects accept a general duty to obey). In other words, when subjects accept a
general duty to obey, what follows is recognition of state authority.
4.3.3 The Implications of Recognition
I have established that when subjects accept a general duty to obey, recognition of
authority follows. Conversely, it can be asserted that from the lack of recognition of
authority 545 follows an absence of a duty to obey. And, I argue, from the lack of a duty to
obey follows the subject’s lack of obedience. 546
543
Ibid at 188.
544
Ibid at 190.
545
It was explained how, for some authors, the existence of legitimate authority can follow from the
subject’s consent - in the case of consent theorists - or from the fulfilment of other elements that the
authority must satisfy in order to be a legitimate authority (e.g. the fulfilment of Raz’s normal justification
and dependence thesis or Fox-Decent’s fiduciary agent-like behaviour on the part of the state). A lack of a
duty to obey as the result of the denial of legitimate authority can also be established from the perspective
of authors who claim that the state’s authority flows from bases other than consent. If the individual over
whom the state claims authority finds that the requirements for an authority to be legitimate do not exist,
she will not have a duty to obey.
546
Here it is important to note that compliance can follow, but this will not imply following the command
as a content-independent reason to obey.
175
Obedience implies acting out of a sense of duty and, in particular, following a
command because one has a duty to obey the source of the command (and not because
the content of the command is good or right or praiseworthy). In this context, obedience
entails following what the claimant of authority says simply because the claimant of
authority says it. Obedience as the following of a command for its own sake 547 is
necessarily linked to the fact that an entity which the subject considered an authority
issued the commands. As Simmons asserts “obedience essentially concerns the source of
a rule or command...I obey my military superior's command to do C when I do C because
he commands that I do C, not because I am independently inclined to do so.” 548 Or, as
Wolff asserts, “[o]bedience is not a matter of doing what someone tells you to do. It is a
matter of doing what he tells you to do because he tells you to do it.” 549
Likewise, as soon as a subject judges the plausibility or fairness of a command,
strict obedience is no longer possible. In the context of whether it is possible to have a
discriminating act of obedience - one that distinguishes which of the perceived
commands fall within the bounds of tolerability - Green argues that it is not possible to
have a selective or discriminatory habit of obedience. Based on the notion of obedience,
Green states that to have a discriminatory habit of obedience would be acceptable only if
one could identify the limits of obedience in a content-independent way. Green notes that
547
See Max Weber, Economy and Society: an Outline of Interpretive Sociology, vol 1, Guenter Roth and
Claus Wittich eds, E. Fischoff et al. trans (New York: Bedminster Press, 1978) at 205.
548
Wellman & Simmons, supra note 21 at 95.
549
Wolff, supra note 485 at 67. See also Green, "Law and Obligations", supra note 538 at 520, arguing
that:
One may comply with the law by doing what it in fact requires, without knowing that
there is law of what it requires. Such a coincidence between law and behaviour is both
common and desirable, since a reasonably just legal system should often require us and
motivate us to do what we have independent reason to do. While it is true that
compliance without obedience is usually sufficient to avoid sanctions, one obeys the law
only if one is actually guided by it.
176
obedience to a command and reasoning regarding whether to adhere to a command are
mutually exclusive. If one needs to assess the substantive issue at the heart of the
command in order to determine the bounds of tolerability and whether to obey the
command, one’s compliance with the command will be subject to one’s personal
judgment and "it would not be an attitude of obedience at all." 550 For Green:
[I]t is wildly implausible that the range of tolerability can in fact be

identified in a content neutral way...The decision about which should be
permitted cannot be made on content-neutral grounds. There is therefore no
avoiding substantive judgments about the bounds of tolerable injustice...We
can never suspend judgment about the bounds of tolerable injustice. If not
limited, a habit of obedience is undesirable; if limited it is unattainable. 551
Thus, if there is no duty to obey an authority’s commands, it is, as a conceptual
matter, impossible for one to obey an authority’s commands. This is because obedience
means acting out of a sense of a duty to obey an authority’s command due to the origin of
the command, and where the subject does not recognize the commander’s legitimate
authority no such duty exists. Therefore, from a lack of recognition of legitimate
authority follows the subject’s lack of obedience.
It was explained above how a lack of recognition of legitimate authority implies a
lack of a duty to obey, how from a lack of a duty to obey there follows a lack of
obedience, and, thus, how from a lack of recognition of authority a lack of obedience
follows.
Moreover, an authority-claiming institution expects its commands to be
obeyed. 552 As Green asserts, “[s]omeone claims authority when he makes requirements of
550
Green, The Authority of the State, supra note 23 at 262.
551
Ibid at 263.
552
While developing his dependency thesis, Joseph Raz asserts that he is arguing that authorities must act
based on reasons that will independently apply to subjects as reasons for action. Raz’s is an attempt to
describe legitimate authority or, as he calls it, “an ideal exercise of authority.” Raz, The Morality of
177
another which he intends to be taken as binding, content-independent reasons for
action.” 553 What the officials of states have in mind as they issue orders and expect
compliance is implementation of their requirements independent of our assessment of the
merits of what is required. 554 Accordingly, a lack of obedience will fail to satisfy the
authority-claiming institution’s expectation that its commands must be obeyed, or be
taken as binding, content-independent reasons for action. And - in the standard case—the
lack of obedience will signal a tacit lack of recognition of the institution’s claim to
authority.
So far, it has been shown that a lack of obedience follows from a lack of
recognition of legitimate authority, and that from the lack of obedience follows the lack
of recognition of authority. An example may help to clarify this correlationship. B is an
individual who was born and raised in an absolute monarchy. Until the age of 32, B
believed in monarchy and considered that he had to follow all the monarch’s commands
since they were issued by the monarch. And so he did. For B, until the age of 32, the
monarch was an authority. At age 32, however, B joined an intellectual group. In this
group’s meetings, B began to hear ideas about democracy and a government held by the
people themselves. After several months of meetings, B was persuaded that all people
were born equal and no person deserved to be venerated above all other people due to his
or her lineage. Consequently, B stopped recognizing the monarch as the legitimate
authority and liberated himself from the duty to obey the monarch. Accordingly, B ceased
obeying the monarch’s commands. Instead, B said, he began to follow what to him were
Freedom, supra note 20 at 47. In contrast to Raz, who describes the ideal way an authority should behave
from the perspective of the subjects, I argue that, from the perspective of an authority claimant, the ideal
behaviour of a subject is obedience.
553
554
See Green, "Who Believes in Political Obligation?", supra note 533 at 309.
178
the right motivations for action until a democratic government could actually be
instituted. For instance, B no longer attended the church prescribed by the monarch, nor
did he pay the taxes that would contribute to the maintenance of the kingdom.
Nonetheless, from time to time, B continued to implement rules that the monarch had
issued. And yet, B’s implementation of these orders was no longer an act of obedience
since it was not done because the orders were coming from the monarch, but rather for
B’s convenience. For example, B continued to sell his products at the Tuesday public
market not because Tuesday was the monarch’s chosen market day, but because it was
convenient for him to sell his products on the day that people gathered to do their
shopping at the market.
The monarch still claimed authority over B and expected B to obey her
commands. But B’s acts were not longer acts of obedience, which meant that they failed
to fulfil the monarch’s expectations and reinforced the lack of recognition of the monarch
as the legitimate authority. 555
4.3.4 The Coexistence of Authorities and the Lack of Obedience as Correlated
Phenomenon
Based on the mutual entailment between lack of recognition of authority and lack of
obedience, I will show below the mutual entailment between coexistence of authorities
and lack of obedience. Provided that subject C is not an anarchist, the fact that subject C
does not obey A and implicitly fails to recognize A’s claims of exclusive authority points
towards the existence of B as a coexistent claimant of exclusive authority. This is
because, since subject C is not an anarchist and is willing to recognize a competent,

555
Based on the notion of authority anchored to a subject’s recognition of authority, although the monarch
could coerce B, a relationship of authority between B and the monarch will not longer exist.
179
exclusive authority-claimant, C’s reason for disobeying, and thus not recognizing, A’s
claim of exclusive authority is the existence of a competitive claimant of exclusive
authority, B, which subject C recognizes as her authority. And if subject C is not an
individual but rather an institution, when C does not obey A’s authority it can be seen as
recognizing the authority of B or as claiming authority for itself. Thus, when there is a
lack of obedience, coexistence of putative authorities is present, and a case of legal
pluralism results.
Moreover, once the coexistence of putative authorities exists, a lack of obedience
is manifested in the following sense. If A and B simultaneously claim exclusive authority
over the same subject matter, A cannot recognize B’s exclusive authority on the same
subject matter, and vice versa. Since neither A nor B recognizes its competitor’s exclusive
claim of authority, the lack of a duty to obey will follow from this lack of recognition of
authority. And, thus, from both A’s and B’s lack of a duty to obey follows the lack of
obedience of each institution toward the other.
This coexistence of putative authorities may imply a lack of obedience in a
second sense. Since both A and B claim authority over not only each other but also over
other subjects who are not competing for authority, these other subjects may recognize
only one of these claims of exclusive authority. While recognizing A’s claim of exclusive
authority, subject C will not recognize B’s claim of exclusive authority, and vice versa.
By not recognizing A’s claim of exclusive authority, subject C will not recognize a duty
to obey A’s commands and a lack of obedience to any such commands will follow. Or, by
not recognizing B’s claim of exclusive authority, subject C will not recognize a duty to
obey B’s commands and a lack of obedience to any such commands will follow.
180
Thus, there is a strong relationship between the coexistence of putative authorities
and a lack of obedience; a lack of obedience implies the coexistence of putative
(conflicting) authorities; and the coexistence of putative (conflicting) authorities implies a
lack of obedience to one of the conflicting putative authorities. It follows that when either
phenomenon exists, the other must exist as well. They are linked by a relationship of
mutual entailment, and both are sufficient conditions of legal pluralism.
4.4 Civil Disobedience and Legal Pluralism
It was established above that an authority-claiming institution expects its commands to be
obeyed by its subjects. While civil disobedience does not entail a constant disregard of
one institution’s orders, it does entail a specific denial of the commander’s authority over
a particular subject matter and a simultaneous assertion of the disobedient person’s right
to be ruled by her own interpretation of justice. Thus, the existence of civil disobedience
implies a legal pluralist scenario.
In the case of civil disobedience, disobedience is a call for reconsideration of the
majority’s sense of justice from the point of view of the dissenters. 556 For Rawls:
[C]ivil disobedience is a public act which the dissenter believes to be

justified by [the constitutional] conception of justice and for this reason it
may be understood as addressing the sense of justice of the majority in
order to urge reconsideration of the measures protested and to warn that, in
the sincere opinion of the dissenters, the conditions of social cooperation
are not being honoured. 557
556
See John Rawls, "The Justification for Civil Disobedience" in William A. Edmundson, ed, The Duty to
Obey the Law: Selected Philosophical Readings (Maryland: Rowman & Littlefield Publishers, 1999) at 49.
557
Ibid at 55.
181
Civil disobedience implies a reason-based disregard of commands. During the
moment when substantive reasons are provided to disobey, the disobedient actor stops
regarding the commander as a content-independent and deliberation-excluding authority
vis-à-vis the commands that are being disobeyed. 558 Likewise, Green considers that if
one's compliance is conditional on one's own view of the merits, there is no attitude of
obedience at all. 559
By questioning the content of the norm, the disobedient person(s) implicitly
affirms that the ruler does not hold legitimate authority vis-à-vis the command(s) being
disobeyed. Although there is recognition of jurisdiction, there is a defiance of authority
itself since, for the disobedient subject, the recognition of authority is linked to a
substantive concept of authority—recall concepts of authority such as those offered by
Fox-Decent or Raz. When the disobedient individual finds that the necessary substantive
elements are not fulfilled in the case of the challenged order, the authority that he would
have attached to the source of the command is therefore lacking.
Moreover, although in Rawls’s case of civil disobedience there is one unitary
concept of justice against which civil disobedience is to be judged (i.e. the constitution),
the subject and commander differ on its interpretation. By differing on the interpretation
of the constitution, the claimant of exclusive authority and the subject hold different
558
It should be recalled that a moral duty to obey the law would be a duty to do what the law says because
the law says to do so. See Wellman & Simmons, supra note 21 at 95. It should be noted that I am not
arguing that from the disobedience of one command follows the general lack of recognition of authority as
such. I am only arguing that, as far as the disobeyed command is concerned, authority is being denied
559
See Green, The Authority of the State, supra note 23 at 262-263.
182
concepts of what is just. Thus, fulfilment of the legal pluralist element of plural concepts
of what is just, as explained in Chapter II, exists. 560
Rawls adds that civil disobedience is nonviolent: legal procedures are respected
and, thus, arrest and punishment are accepted without resistance. 561 One can doubt in a
case of legal pluralism that the ruler’s punishments would be passively accepted by the
party simultaneously claiming authority. This non-resistance, however, includes in itself
a denial of authority with regard to a particular subject matter or command since, with her
non-resistant attitude, the disobedient subject aims to convince the majority of her
perspective, therefore treating the ruling majority as an equal. 562
4.5 Conclusion
At the beginning of the chapter, I established that a case of legal pluralism has as
sufficient elements multiple claims to authority, as well as lack of obedience
(disobedience or accommodation) of the commands of perceived usurpers of authority. I
later claimed that from the duty to obey follows recognition of authority. Consequently, I
argued that, in the standard case, from a lack of recognition of authority there follows an
560
Even if there were a common concept of justice, the case of legal pluralism would be marked by
authority-claimants themselves wanting to interpret and apply this concept of justice.
561
See Rawls, "The Justification for Civil Disobedience", supra note 556 at 55.
562
Ibid at 55. Although Rawls gives a unitary background of justice and equality as reasons for an act of
civil disobedience, there are interesting traces of pluralism behind Rawls’s claim for disobedience. For
Rawls: “in a democratic society each man must act as he thinks the principles of political right require him
to…There can be no morally binding legal interpretation of these principles, not even by a supreme court
or legislature… The final court of appeal is not the Court, or Congress, or the President, but the electorate
as a whole. The civilly disobedient appeal in effect to this body.” (ibid at 61-62, [emphasis added]) In
asserting this claim, Rawls touches the borders between liberalism and legal pluralism since the ultimate
government is not one but numerous, as potentially numerous as the members of the electorate are.
Nevertheless, in the end, the electorate is represented as one body.
183
absence of a duty of obedience to that authority. And from this lack of a duty to obey
follows a lack of obedience. Finally, I claimed that, from the perspective of practical
authority, a general lack of obedience signals an absence of recognition of authority.
When either a lack of obedience or a lack of recognition of authority exists, there follows
a coexistence of authority-claiming persons, some or all of which may be institutions.
In the next chapter, I argue that the above-mentioned propositions are applicable
not only to the relationship of political authority, but also to the intra-state relationships
of authority, following the idea from the rule of law of the official institutions’ duty to
obey the law. I explain how, within the state, there can be a denial of the duty to obey and
a subsequent lack of recognition of authority when different state institutions follow
different conceptions of the rule of law.
184
CHAPTER V
BEYOND POLITICAL AUTHORITY
5.1 Introduction
In Chapter IV, I explored the concepts of authority and obedience within political
authority. I stated that there is a correlation between the lack of obedience and the lack of
recognition of authority and between the lack of obedience and the coexistence of
putative authority-claiming institutions. This analysis is pertinent to political authority,
but can go beyond the terrain of political authority, as political authority is just one form
of authority. 563 In addition to the relationship between the state and the legal subject,
authority can also exist between private individuals, for example, in the relationship
between parents and children. Moreover, institutions can claim authority over other
institutions. Accordingly, the state can claim authority over moral persons as well as over
natural persons. For instance, in the case of colonies vis-à-vis the crown, the state
claimed authority over another territory-related institution (e.g. the colony or the
dominium). Further, the relationship of authority can exist among institutions within the
state, as in the somewhat controversial example of courts and parliament when judicial
review of legislation is used in the particular system of government.
Some elements of the discussion of authority can vary when the participants in the
authority relationship are not the state and the individual. For example, in the relationship
of authority between parents and children, parents cannot strictly be analogised to the
563
Several theorists deal first with the concept of authority in general before entering into the concept of
political authority. See Raz, The Morality of Freedom, supra note 20; See also Arendt, supra note 488 ; and
Green, The Authority of the State, supra note 23.
185
state since the functions they assume in regards to their children differ from those of the
state vis-à-vis individuals (for example, although it could be said that both parents and
the state look after the security of their subjects, there is no national security or territorial
infrastructure involved in the parent/child relationship). Moreover, individuals are
expected to be responsible for themselves (to the extent they reasonably can), while
children are not expected to exercise the same responsibility since, to a certain extent,
they lack judgment and maturity. Thus, based on the level of responsibility imputed to
children, parents can make decisions for children that the state cannot make for
individuals. Nonetheless, the essential elements of authority remain in non-political
authority relationships, since any type of authority implies a content-independent,
deliberation-excluding claim to command and (if one accepts the correlativity argued for
in chapter IV) a prima facie duty to obey.
Given my emphasis on SLP, the focus of this chapter will be on the authority
relationships among institutions within the state. To illuminate the relationships of
institutions within the state, I explore the concept of the rule of law. I present an overview
of the discussion of the rule of law and emphasise its substantive and formal concepts.
Later, I argue that, although from the concept of the rule of law it follows that the state—
and all its institutions—must obey the law, this duty can be questioned by the state’s
institutions when there is a disagreement regarding which institution has jurisdiction to
proclaim what the law is, or a disagreement regarding whether a norm is law given its
content. Recall that, in the standard case, the existence of a duty to obey implies the
recognition of authority. Conversely, in the standard case, a general failure to recognise
an authority implies the lack of a duty to obey. And from the lack of a duty to obey
186
follows a lack of obedience, since obedience requires that one acts on the basis of a duty
to obey. Moreover, since authority-claiming institutions expect obedience from those
subject to their commands, a failure to obey signals a lack of recognition of the
institution’s authority, at least for the instance in which there is a lack of obedience.
Based on the above statements, I showed that a lack of obedience imply the
coexistence of putative authority-claiming institutions, and the coexistence of putative
authority-claiming institutions results in a lack of obedience to one of the conflicting
authority-claiming institutions. These phenomena are linked by a relationship of mutual
entailment, and both are sufficient conditions of legal pluralism. Since SLP is a species of
legal pluralism with a particular requirement that the coexisting claimants of authority are
state institutions, when either denial of authority between state institutions or lack of
obedience between state institutions occurs, the coexistence of authority-claiming state
institutions takes place and a case of conflicting SLP arises.
5.2 The State’s Institutions and Authority: the Rule of Law
In modern society, the state is thought of as a central authority-claiming institution. This
is evidenced by the vast literature on political authority, some of which is reviewed in
Chapter IV. The state could be thought of as an indivisible unity; therefore, it could be
argued that its main authority-related interaction would be with private individuals. Apart
from this interaction, the second most obvious context in which the state exercises
authority is in some instances of international law. For example, the state can claim
sovereignty over its territory as against all other states.
187
Nevertheless, since the state is comprised of several public institutions, this
approach to understanding the state’s putative authority is limited. 564 Although public
institutions are affiliated with the state, there are several layers of internal dynamics of
authority within the state. That is to say, some intra-state public institutions claim to have
authority over other intra-state public institutions. Consequently, an intra-state public
institution can be the subject of another intra-state public institution’s authority.
For instance, the legislature can claim authority over the executive, since, while
the executive will be vested with certain constitutional powers, the executive’s ability to
implement policy is subject to the will of the legislative branch. In countries where there
is judicial review of legislation, the Supreme Court or the Constitutional Court can claim
to have authority over the legislature with respect to the interpretation of legislation
against the requirements of the state’s constitution. A National Constituent Assembly, as
the body that founded and has the ability to amend the constitution, can claim to have
authority over all the state’s organs, as it establishes the respective powers of the
legislative, executive and judicial branches. While usually only private parties are
considered legal subjects, when public institutions obey the commands of other public
institutions, the former implicitly acknowledge their status as legal subjects of the latter.
This is why, for example, the legislature attempts to develop its statutes within the
framework of the constitution and the executive claims to be acting within its direct
constitutional mandates and also within the mandates given it by statute.
These types of internal dynamics of authority are mostly existent in states where
there is a division or separation of powers. Nonetheless, there is an internal dynamic of
564
For an illuminating approach to the numerous institutions within the state, see Romano, supra note 16.
188
the state as authority and legal subject also in regimes with concentrated authority. As
Tamanaha argues, the concept of the rule of law was already existent for the medieval
kings. In medieval times, after the pope declared himself sovereign over all the earth’s
sovereigns, kings began to take an oath of obedience to ecclesiastic and mundane laws on
the day they were being crowned. Thus, the king was not free from all authority, but
subject at least to ecclesiastic authority. The oath of the king was later focused on law
rather than on ecclesiastic domains. And this self-imposed obligation became a standard
of expectation. 565 Both types of states have a common factor that makes public
institutions simultaneously authorities and subjects: the concept of the rule of law.
Different approaches share a common point: according to the rule of law, the
state’s authorities can exercise their power only within the law. For Pietro Costa, the
concept of the rule of law is framed within the power–law link, where there is a need to
regulate and constrain the sovereign’s unforeseeable will. 566 Likewise, Tamanaha
acknowledges that the historical inspiration and long tradition of the rule of law has been
the restraint of tyranny by the sovereign. 567 And he finds that, among all the different
definitions of the rule of law, there is a common element: the rule of law is seen as a
"legitimating political ideal." 568 As a legitimating political ideal, the rule of law can be
565
Tamanaha, On the Rule of Law, supra note 24 at 20. Tamanaha also points out that twelve years before
Aquinas stated the principle of a law abiding government, the Magna Carta had already stated that the
barons should be subject only to ordinary law, ordinary law being guarded by the decisions of regular
courts and not to the king's justice. Based on the Magna Carta, Henry Bracton later argued in his On the
Laws and Customs of England that the king was subject to law and that the majesty of a ruler was increased
by accepting its subordination to law. Ibid at 26. According to Bracton, "the king must not be under man
but under God and under the Law, because law makes the King." See Henry Bracton, Bracton on the Laws
and Customs of England, translated by Samuel E. Thorne (Cambridge, Mass.: Belknap, in association with
the Selden Society, 1968) Vol.II, p.33.
566
Pietro Costa, "The Rule of Law: A Historical Introduction" in Pietro Costa & Danilo Zolo, eds, The rule
of law: history, theory and criticism (Dordrecht Springer, 2007) at 135 [Costa, “The Rule of Law”].
567
Tamanaha, On the Rule of Law, supra note 24 at 96.
568
Ibid at 4.
189
understood to be the limiting condition within which power must be exercised in order to
be recognised by its subjects. Since the rule of law is a constraint on the exercise of the
state’s power, the state and its internal institutions can command, but they are
simultaneously subject to the law. 569
5.2.1 Formal and Substantive Conceptions of the Rule of Law
Despite this core conceptual similarity, several authors recognise that the definition of the
rule of law is far from settled. 570 Among the different conceptions of the rule of law, the
most common distinction is between formal and substantive conceptions. The former
places emphasis on the procedural standards that the government must follow in order to
act according to the law and be legitimate. The formal conception thus emphasises the
way in which institutions should promulgate the law, the clarity of the norm under
analysis, the temporal validity of the norm, equal treatment from the law, delimitation of
governmental jurisdiction by law, and the presence of independent courts to enforce the
law. But the formal conception does not evaluate the content - good or bad - of the law
itself. 571
In this vein, for example, Raz argues that for laws to respect the rule of law they
must be of such a nature that they can enable individuals to plan their lives or their future
569
In a slightly different view, Joseph Raz asserts that the possibility of arbitrary power is inherent to law.
But he sees in the principles of the rule of law—as some formal characteristics the law should comply with-
-a restraint to this potential arbitrariness. See Raz, The Authority of Law, supra note 28 at 224.
570
See Tamanaha, On the Rule of Law, supra note 24 at 3-4. See also Paul Craig, "Formal and Substantive
Conceptions of the Rule of Law: An Analytical Framework" (1997) Public Law 467 at 467 [Craig,
“Formal and Substantive Conceptions”]; Costa, supra note 566 at 73; Robert S. Summer, "A formal
Theory of the Rule of Law" (1993) 6:2 Ratio Juris 127; and Thomas Carothers, "Rule of Law
Temptations" in James J. Heckman, Robert L. Nelson & Lee Cabatingan, eds, Global Perspectives on the
Rule of Law (London ; New York Routledge, 2010) at 20 (recognizing the presence of contrasting concepts
of the rule of law in Colombia).
571
See Craig, supra note 570 at 467. Accord Tamanaha, On the Rule of Law, supra note 24 at 3 and 92; and
Summer, supra note 570 at 129.
190
behaviour. 572 In order for laws to guide individuals’ behaviour, they must be general,
prospective, public, clear, and relatively stable, and the making of particular legal orders
should be guided by stable, general and clear rules. In addition, there should be an
independent judiciary with some review powers regarding conformity with the rule of
law by administrative and legislative acts, and access to impartial courts should be
guaranteed. 573 For Raz, however, the fact that a government agrees to be subject to the
rule of law does not guarantee a non-tyrannical government. 574 Instead, Raz argues that
the rule of law is a negative virtue of law in the sense that it can be used to limit the
arbitrary exercise of power inherent to law. 575 But just as a knife can be used to kill or to
cut, the rule of law can be used to facilitate both good and evil. 576
Also within a formal concept of the rule of law, A.V. Dicey argues that the
constitutive elements of the rule of law are prospectivity of the law, a process before an
ordinary court 577 - ordinary courts in this instance are courts that have constructed the
body of law by their multiple judicial decisions - 578 and equal treatment before the law. 579
572
Raz, The Authority of Law, supra note 28 at 220 and 221. Allan recognizes that Raz’s idea of the rule of
law implies guidance of future behaviour, but, from his substantive liberal constitutional concept of the rule
of law, Allan finds the satisfaction of this need insufficient. See T.R.S. Allan, Constitutional Justice: A
Liberal Theory of the Rule of Law (New York: Oxford University Press, 2003) at 38 [Allan, Constitutional
Justice].
573
Raz, The Authority of Law, supra note 28 at 214-217; accord Tamanaha, On the Rule of Law, supra note
24 at 93; and Craig, supra note 570 at 469.
574
Raz, The Authority of Law, supra note 28 at 211.
575
Ibid at 224.
576
Ibid at 225; see also Tamanaha, On the Rule of Law, supra note 24 at 95.
577
Dicey, supra note 27 at 183-184.
578
Ibid at 191.
579
According to Dicey, administrative agents are not exempted from equal treatment before the law. Ibid.
at 189; see also Tamanaha, On the Rule of Law, supra note 24 at 63-64; and Craig, supra note 570 at 472-
473. It is important to note that Dyzenhaus and Allan assert that Dicey does not fit into a merely formal
concept of the rule of law since his perception of law is a mixture of political positivism and a common law
aspirational conception of law. See Dyzenhaus, The Constitution of Law, supra note 25 at 71; and Allan,
supra note 572 at 14, 17 and 20 (arguing that due to the fact that, according to Dicey, the application and
interpretation of laws is entrusted to courts and courts are entrusted with the protection of the common law,
191
The formal concept can be connected to a constitution that mainly emphasises the
distribution of powers. Along these lines, Kelsen argues that, as part of the state, all of
the state’s organs are subject to law, and law determines all the state’s activities. 580 To
begin with, the role of the legislature is subject to the procedural standards established by
the constitution. 581 Additionally, the role of the administration and of judges consists of
following the law by concretising the abstract terms of a norm in an individual case. 582
Due to the restraining role that Kelsen attributes to the constitution vis-à-vis the state’s
acts, he is acknowledged as the founder of a constitutional conception of the rule of
law. 583
The substantive conception builds upon the formal and goes beyond it. This
concept recognises the procedural limits applicable to public power, but it also affirms
that governmental actions must respect substantive constraints in order to act in
accordance with the law. The constraints of the substantive concept are related to the
Dicey’s concept of the rule of law is substantive). Allan notes that the common law courts, as interpreters
of the law, are entrusted with protecting the principles that correspond to the notions of right and wrong
broadly acknowledged within the community at the moment the law is being applied).
580
Carl Schmitt objects to this claim. He notes that while, in the medieval state, where divine law was upon
the state, a right to resistance was possible based on divine precepts,
[r]esistance as a “right” is in Hobbes’ absolute state in every respect identical to public
law and as such is factually and legally nonsensical and absurd. The endeavor to resist the
leviathan, the all powerful, resistance-destroying, and technically perfect mechanism of
command, is practically impossible…Against the irresistible, overpowering leviathan
“state,” which subjugates all “law” to its commands, there exists neither a discernible
“stance” nor a “resistance.”
See Carl Schmitt, The Leviathan in the State Theory of Thomas Hobbes (Chicago: The University of
Chicago Press, 1996) at 46.
581
See Costa, supra note 566 at 114 and 115.
582
Ibid at 112-114
583
Ibid at 115.
192
material conditions in which an individual would be able to act on her aspirations and
human dignity, conditions linked to a concept of justice or a moral principle. 584
The substantive conception of the rule of law can be related to a content-based
constitution. Trevor Allan defends a theory of the rule of law in which the law that must
rule state actions is related to the content of the values protected by a liberal common law
constitution. 585 Allan embraces the constitutional principles of division of power, but he
proposes a concept of the rule of law that includes substantively necessary limits. These
limits determine when the exercise of such powers is legitimate. 586 For Allan, a basic
theory of constitutionalism implies—to begin with—treatment of all individuals that
respects their equal dignity as citizens. 587 Allan argues that these rights and freedoms
should be enforced by an independent judiciary. 588 Under Allan’s concept of the rule of
law, parliamentary sovereignty would only be possible if there were simultaneous judicial
sovereignty regarding the case-by-case application of statutes, an application in which the
legislature has no room for intervention. This judicial application of statutes should be
584
See Tamanaha, On the Rule of Law, supra note 24 at 3 and 92. See also Craig, supra note 570 at 467;
and Carothers, supra note 570 at 21 (for the elements of a substantive concept of the rule of law). Despite
the differences between formal and substantive approaches to the rule of law, formal and substantive
theories share parts of each other since the former have substantive implications and the latter include
formal requirements. See Tamanaha, On the Rule of Law, supra note 24 at 92. For example, the formal
version of the rule of law implies respect for values such as private autonomy, certainty and predictability,
minimization of disputes, and freedom from arbitrariness. Simultaneously, the substantive concepts have an
institutional element in addition to the ideological one (e.g. independent courts, judicial due process and
prospectivity of the law). See Summer, supra note 570 at 131 and 135 in light of 129.
585
In this sense, Allan, as well as Kelsen, argues that the rule of law is the rule of constitutional law. And
yet, Allan parts from Kelsen in the sense that the latter defends a formal concept of the basic norm, whereas
the former insists on the salience of common law values. For Allan, Kelsen’s theory is incompatible with
constitutionalism since his basic norm did not put limits to the content of norms. See Allan, supra note 572
at 36.
586
Ibid at 31-32.
587
Ibid at 38. For Allan, positivists such as Raz do not impose substantive constraints on the exercise of
power to achieve such equal treatment; therefore, the positivist theory of the rule of law is not acceptable
under the constitutional law parameters established by Allan.
588
Ibid at 161.
193
guided by principles of equality and due process and political and civil rights essential to
constitutional democracy. 589
By the same token, following a fundamental-principles-based concept of common
law constitutionalism, David Dyzenhaus argues that there is a difference between the rule
by law and the rule of law. The former implies the use of law to implement any end of
those in political power, while the latter implies, on the contrary, their constraint in the
instrumental use of law. 590 The rule of law includes fundamental constitutional principles
that protect individuals from the state’s arbitrary actions and must be respected by
government. 591 Consistent with his vision of the rule of law, Dyzenhaus states that
judicial review of legislation and administration should follow a substantive concept of
the rule of law, not a mere review in respect of rule by law. 592
By intersecting his principle-laden concept of law with the concept of the rule of
law, Ronald Dworkin defends an even thicker substantive concept of the rule of law, one
that draws explicitly on liberal political morality. Dworkin elaborates his concept by
contrast. He acknowledges the possibility of a concept of the rule of law that focuses on
the respect of government for enacted laws independently of the law’s content, what
Dworkin denominates a “rule-book” conception. He argues that this conception is
necessary but not sufficient for justice, an element indispensable in law. 593 As an
alternative, Dworkin proposes a “rights” conception. He argues that citizens have
political rights against the state as a whole and moral rights and duties with respect to one
589
Ibid at 202, 206, 207 and 212.
590
Dyzenhaus, The Constitution of Law, supra note 25 at 6.
591
Ibid at 2, 18, 42 and 201.
592
Ibid at 227.
593
For the implications of the “rule-book” conception of the rule of law, see Dworkin, supra note 26 at 12
for the connection of law and justice see ibid at 32.
194
another. According to the “rights” conception, such rights must be positivised by the
legislature and further enforced by the judiciary upon citizens’ demands. 594 Dworkin
argues that judicial decisions are still based on law when they are based on the intrinsic
liberal principles and values that sustain the law because laws are based on principles and
judges are entrusted with the duty of upholding such values and principles. 595
The thickest concept of the rule of law is that of the social rule of law. 596 Herman
Heller defends this position. For him, the rule of law is strictly related to the role of the
state as welfare provider. Heller defends the combination of democracy, individual
liberties and social rights - what he denominates as the social rule of law. For Heller,
freeing rights from their original exclusive individualist biases was the only way to save
the rule of law as a simultaneous protection from governmental arbitrariness and a
protection of social rights. 597 The concept of the social rule of law has found some
594
Ibid at 11; see also Craig, supra note 570 at 477-478. In Dworkin’s version, his concept of law and the
theory of justice embodied in it are identified with the rule of law. See ibid at 478-479. Craig implicitly
criticizes this position when he argues that if one wants to defend a certain concept of law one should not
use the concept of rule of law as pretext to defend one’s substantive concept. Ibid at 487.
595
Dworkin, supra note 26 at 22. See also Tamanaha, On the Rule of Law, supra note 24 at 80-81, 102-103
and 105 (describing Dworkin’s concept of the rule of law); and Craig, supra note 570 at 477. Questioning
Dworkin’s concept of the rule of law, Tamanaha notes that presently there is a deep disagreement on the
content of values and principles. Tamanaha, On the Rule of Law; supra note 24 at 102-103. Tamanaha also
observes that Dworkin’s substantive version of the rule of law runs against democracy since a fixed
commitment to certain rights blocks popular decisions. In addition, if the interpretation of such rights is
entrusted to non-elected judges, there will be tension with the popularly elected body. Furthermore, judges
impose their personal views and not hypothetical common values when making decisions. Ibid at 105-107.
But see Dworkin, who argues that judges protect democracy since judges take care of insulated minorities
that a majoritarian system cannot protect. Dworkin, supra note 26 at 27-28.
596
See Tamanaha, On the Rule of Law, supra note 24 at 112 (for the denomination of the social version of
the rule of law as the thickest version).
597
See Costa, supra note at 121. As an opponent of the concept of constitutional social rule of law, Costa
cites Ernst Forsthoff, who placed emphasis on the constitutional separation of powers and the independence
of the judiciary as elements of the rule of law and criticized the social approach to the rule of law as
political. Ibid at 132. Costa also cites Friederich Von Hayek as an opponent of the concept of social rule of
law since he saw in the discretionary role of the administration a threat to the certainty that should be
provided by the rule of law. Ibid at 133.
195
opposition. Some of the main objections to the role of a distributive-justice-driven
administration come from its supposed violation of the formal rule of law. 598
There is a tension between formal and substantive conceptions of the rule of law
since some of the content-based requirements of the substantive view limit the individual
liberties that a formal concept wants to protect. And, vice-versa, the absolute protection
of the liberties defended by a formal concept restricts the materialisation of some
substantive ideals of the substantive concept. This tension has consequences for the
authority relationships within the state, a point I elaborate below.
5.2.2 Tensions
Despite the fact that official institutions generally recognise that they are bound by law,
they can question their duty to obey the authority of another institution and the norms
enacted by the latter for two reasons. The first reason for an official institution to not-
obey the norms enacted by another official institution is formal; for example, the
institution which is supposed to be subject to another institution’s order does not
recognise the jurisdiction of the latter or questions the procedure by which the latter
promulgated the law. Due to a lack of jurisdiction or lack of due process, the subject of
law does not recognise the institution that issues a command as an authority and its
commands are, therefore, not seen as mandatory. As in the concept of political authority,
in the state’s internal dynamic of authority, a duty of obedience is related to recognition
598
For critics of the social rule of law the discretionary action involved in the possibility of the distribution
of resources and limitation of liberties by the administration disregards the principle of certainty. See
Dicey’s and Hayek’s objections to the discretionary role of bureaucracy as a danger for the rule of law in
Tamanaha, On the Rule of Law, supra note 24 at 64-65, 67 and 71. Another objection focuses on the
conflict between democracy and the individual liberties oriented rule of law and the collision between
personal liberty and substantive equality. Ibid at 113. Tamanaha identifies the International Commission of
Jurists and, to a certain degree, the German Constitutional Court, while developing the concept of human
dignity under this type of rule of law.
196
of authority. And because that denial of a ruler’s authority carries with it a denial of the
duty to obey, a failure on the part of one institution to obey another is seen by the former
not as an act of lack of obedience in the sense of a refusal to obey a lawful order, but
rather as lack of obedience to the requests of an usurper. The argument in favour of this
lack of obedience proceeds from an absence of a duty to obey predicated on an alleged
lack of jurisdiction or violation of due process. This type of lack of obedience, from the
perspective of the non-obedient institution, can potentially be justified under a formal
conception of the rule of law. As elaborated above, under the formal concept, a putative
authority-claiming institution’s mandates conform to the rule of law and are mandatory if
and only if the authority has competence to enact law and follows the appropriate due
process. 599 By hypothesis, the non-obedient institution denies that the authority-claiming
institution has the jurisdiction it claims, or insists that its exercise of power violates due
process, and so to this extent runs afoul the requirements of the formal conception of the
rule of law. As an example, think about how the non-obedient Southern states in the US
Supreme Court Brown v. Board of Education case justified their conduct by asserting that
the US Supreme Court lacked jurisdiction to decide education-related issues within the
States.
A second reason for a potential lack of obedience to an authority-claiming
institution is that, although one institution has jurisdiction to determine the conduct of
another, the latter institution does not deem the former institution authoritative in this
case due to the content of its mandates. Thus, there is no duty to obey the institution. And
from this lack of a duty to obey follows a lack of obedience. This is the case when an
599
Recall that both formal and substantive concepts of the rule of law recognize that there is a formal
component in the rule of law.
197
official institution with a substantive conception of the rule of law finds that, despite the
authority-claimant complying with the formal aspect of the rule of law, the substantive
content of its mandate does not amount to law. In other words, an institution that has
jurisdiction can lack authority when the subject institution links authority to substantive
criteria and does not find the criteria fulfilled in the rule issued by the authority-claiming
institution.
As an example, consider the case of Gloria Amparo Duque v. Fund of Pensions
BBVA, judgment T-1036-08 CC. Gloria Amparo Duque, the plaintiff, was a widowed
mother of two children. When she went to BBVA Pension Fund to ask for the recognition
of her right to a widow’s pension, BBVA denied her claim. According to BBVA,
although Mrs. Duque’s husband had contributed to the pension fund, he had not fulfilled
a technical contribution requirement. That is to say, he had not contributed to the same
pension fund during the last 20% of the time prior to his death. BBVA denied the pension
based on the most recently enacted statute regarding the recognition of widows’ pensions.
Duque then brought a guardianship action against the pension fund. She based her
claim on the idea that despite her husband not having fulfilled the contribution
requirement, the denial of her alleged right to the pension affected her and her children’s
fundamental rights to the minimum conditions of dignified subsistence (mínimo vital).
Without the pension, the complainant argued, she was confined to living in a one-
bedroom apartment along with her two children with only a mattress to sleep on. The
plaintiff argued that as a caregiver her income - less than the minimum salary - was not
enough to sustain her and her children. She recognised that, according to the law valid at
the moment her husband died, she had no right to a pension, but she alleged that the law
198
under which her husband began to contribute to pension funds would have recognised her
right to a pension. To deny her the right to her husband’s pension might comply with
current statutory law, but would, she argued, violate the 1991 Constitution.
The Colombian Constitutional Court recognised that, according to the most recent
statutory pension norms, Duque did not have the right to the pension and, thus, BBVA
acted according to statutory law. Nonetheless, the Constitutional Court held that BBVA’s
decision was not valid. The Constitutional Court held that, taking into account the
fundamental constitutional rights of the plaintiff and her children, to apply the valid
statutory law to her case would violate the 1991 Constitution. Moreover, the application
of the least favourable regime would be a regressive measure in terms of social security
protection, an application which was to be presumed unconstitutional according to the
Constitutional Court’s precedent. The Constitutional Court also restated the principle that
children and primary family caregivers, like the plaintiff, deserve special constitutional
protection. Thus, pursuant to constitutional values such as the rights of the child and the
equal protection clause, the Constitutional Court applied the exception of
unconstitutionality to the pension norm that was being applied by BBVA and ordered
BBVA to recognise the right of the widow and her children to the deceased’s pension.
In this case, BBVA relied on a formal conception of the rule of law, under which
denial of the pension according to valid law showed respect for the law. On the other
hand, the Constitutional Court endorsed and applied one of the thickest substantive
conceptions of the rule of law: the social rule of law. According to this understanding of
the rule of law, BBVA had jurisdiction to decide pension cases and acted according to
valid statutory law, but the Constitutional Court did not recognise BBVA as an authority
199
for the case due to BBVA’s decision to apply the statutory requirement notwithstanding
its unconstitutional consequences for Duque and her family.
Formal and substantive reasons, however, can sometimes go hand-in-hand. This is
the case when, in addition to not accepting that one institution has authority over another,
the potential subject institution believes that the content of what is commanded disregards
the substantive elements of the rule of law. 600
As an example, one can think about the State of Georgia’s disobedience of the US
Supreme Court’s decision in Brown v. Board of Education. As explained in Chapter II,
the State of Georgia did not recognise the US Supreme Court’s jurisdiction to decide on
matters related to the State’s regulation of education. 601 In addition, for the State of
Georgia, racial segregation was an acceptable act according to the right of freedom of
association protected by the United States Constitution. 602
When any of the above conflicts of intra-state authority exists, there is a lack of
obedience and a case of SLP arises.
5.2.3 Good Faith Disobedience
Disagreement on the concept of which legal rules are mandatory implies a good faith
disobedience since the disobedient institution believes that it is acting in accordance with
the law. To better understand what an act of good faith means, I will follow the
concept’s explanation as elaborated by Philip Soper.
600
From his substantive version of the rule of law, Dyzenhaus, while scrutinizing Hobbes’s role of judges,
describes an illuminating relationship between authority and the rule of law. Dyzenhaus asserts that despite
it being true that “[a]uthority and not truth makes law,” “one who wants to be an authority has to accept the
constraints of the rule of law. And these constraints are both moral and the constitutive or constitutional
conditions of being an authority.” Dyzenhaus, The Constituon of Law, supra note 25 at 12.
601
See online: American Radio Works
<http://americanradioworks.publicradio.org/features/marshall/manifesto.html>.
602
See Kruse, supra note 310 at 161-162.
200
Soper argues that a claim of justice in the limits imposed by law is made in good
faith when the authority sincerely believes in the legitimacy of the system, 603
independently of the type of regime that is being defended. 604 The opposite of a good
faith claim is a claim that is not sincere, such as one that masks personal or sectional
interests. 605 A willingness to respond to challenges to a normative claim is a sign of the
sincerity of the belief in the justice of the claim. 606
To the extent that intra-state disobedience is of good faith, it can be analogised 607
to the case of civil disobedience. An individual engaging in civil disobedience may defy
promulgated official norms because she sincerely considers that, according to her
interpretation of the constitution, these norms do not amount to law since they do not
meet the elements of law’s legitimacy. It is, therefore, a good faith disobedience that,
paradoxically, portrays fidelity to law. 608 Nevertheless, as explained in Chapter IV, this
disobedience questions the authority of the ruler as far as the order in question is
concerned.
Continuing the parallel with civil disobedience, in the case of intra-state resistance
to official (proclaimed) authority, the justification for disobedience will not be
conscientious objection but rather good faith constitutional or statutory interpretation.
This type of disobedience can exist, for instance, when a state institution accepts
subjugation to judicial review, but, following a substantive concept of the rule of law,
603
See Philip Soper, A Theory of Law (Cambridge: Harvard University Press, 1984) at 118. For the
assimilation of good faith with sincerity of belief see ibid at 119.
604
Ibid at 118.
605
Ibid at 123.
606
Ibid at 134.
607
This assimilation is mutatis mutandis due to the lack of moral autonomy in the case of institutions.
608
This assertion is inspired by Allan, supra note 572 at 100.
201
disagrees with the judgment’s content and refuses to comply with the judicial order on
the basis of this disagreement.
As an example, one can think of the Colombian case AA on behalf of BB v.
Saludcoop, Health Service Provider Institution, judgment T-388-09 CC, as decided by a
trial judge. To understand this case, some background is needed. In Roa López et al.,
judgment C-355-06 CC, the Colombian Constitutional Court declared the prohibition of
abortion constitutional, but read into the statute that the termination of a pregnancy did
not constitute an illegal abortion in the following cases:
1. When the continuation of pregnancy puts the life or health of the pregnant woman
at risk, according to medical certification;
2. When there is grave foetal malformation that makes his life unviable, according to
medical certification; and
3. When the pregnancy was the result of the crime of rape, incest or insemination
without consent.
The Constitutional Court held that although the nasciturus life was protected in
the 1991 Constitution, this protection should be weighed against the rights of the woman
not to be subject to violence or discrimination, the right to her free development of
personality, and the full enjoyment of her sexual and reproductive health.
Some years after Roa López et al., AA brought a guardianship action on behalf of
his wife BB. Although there was a medical diagnosis of severe malformation of the
foetus and a medical recommendation of termination of BB’s pregnancy, Saludcoop, the
Health Service Provider Institution, refused to cover the cost of the necessary exams
performed in conjunction with the evaluation of the foetus. According to Saludcoop,
202
these exams were not included in the mandatory health plan. Moreover, AA asserted that
the gynaecologist who was supposed to execute the abortion agreed to go ahead with the
procedure but only after a judicial order was issued.
The guardianship trial judge held that there was a judicial impediment that
precluded him from deciding the case. He held that, under his Christian beliefs -
according to which the life of the foetus was sacred and thus abortion was a forbidden
action - he could not order the medical abortion procedure. The appellate judge who
reviewed the trial judge’s declaration of impediment required the trial judge to issue a
decision.
After the appellate judge’s order, the trial judge denied the guardianship
protection. According to the trial judge, he could not decide based on Roa López et al..
For the trial judge, the nasciturus was a human being and, thus, the preamble of the 1991
Constitution and its Article 11 provisions protected the foetus from the moment of
conception. In addition, the guardianship trial judge alleged conscientious objection in
order not to decide the abortion case brought before him. For the trial judge, Article 18 of
the 1991 Constitution, which establishes the right to present conscientious objection,
applied to judges because they are also human beings with philosophical, religious, and
cultural beliefs.
Both the appellate judge and the Constitutional Court reversed the trial court
judgment. According to the appellate judge, Saludcoop’s procedures violated human
dignity, and the right to life and free development of the personality of the plaintiff
woman seeking an abortion procedure. The appellate judge ordered the health service
203
provider to perform the medical abortion procedure within 48 hours after notification of
the judgment.
The Constitutional Court upheld the appellate judgment and added that
conscientious objection was only possible when the individual was acting in her private
capacity. If, on the contrary, the individual was acting as a public authority, she could not
argue moral reasons in order not to fulfill her constitutional and statutory duties. As
public authorities, individuals have an obligation to apply the valid law regardless of
beliefs held in a personal capacity.
In cases where a judge’s personal beliefs go against the decision a judge has to
make as a matter of law, the judge is obligated to decide the case based on the
constitution and other applicable norms. This is what defines a state under the rule of
law. In the eyes of the Constitutional Court, when one voluntarily becomes a member of
the judiciary, one leaves aside one’s personal, conscientious considerations when one is
acting according to one’s judicial functions and, thus, one has to apply the validly
prescribed law.
Although the trial judgment was reversed, and the trial judge’s conscientious
objection was held invalid, the conduct of the trial judge reflects good faith disobedience.
By disobeying Roa López et al., the judge believed that he was acting not only according
to his own beliefs, but also according to the law. First, to the trial judge, the
Constitutional Court had not taken into account that the nasciturus was protected by the
1991 Constitution and, second, the 1991 Constitution protected his right to disobey
according to his personal beliefs as a conscientious objector. Although the judge did not
204
claim that his beliefs could trump the law (he was surely aware that his decision was
likely to be overturned), he portrayed his actions as permitted by the 1991 Constitution.
Good faith disobedience can also occur when the reviewed institution denies that
the application of the law should come from the reviewing court. As an example, one can
think about the Supreme Court of Justice’s and the Council of State’s attitude vis-à-vis
the Colombian Constitutional Court’s review of their respective judgments. In the coming
section of this Chapter, I illustrate at length how, when the Constitutional Court reverses
the Supreme Court of Justice’s or the Council of State’s judgments and the Supreme
Court or the Council of State disobeys, the high courts have acted in good faith according
to their understanding of the 1991 Constitution. Paradoxically, in these situations
disobedience is actually an act of fidelity to what the reviewed institution considers to be
the law.
Although lack of recognition of authority denies the duty to obey and from this
follows a lack of obedience, either in the form of disobedience or accommodation, below
I explore how the reaction to the lack of recognition of authority and the lack of a duty to
obey in the Colombian case has mainly been one of disobedience. This disobedience has
been gradually increasing in its intensity. And, instead of having renounced their claims
of authority over the subject matter, the Colombian high courts have intensified them.
5.3 The Colombian High Courts
In the Colombian high courts example, a lack of obedience, manifested in disobedience,
and the coexistence of putative authority-claiming institutions have gone hand-in-hand.
205
The Supreme Court of Justice and the Council of State have almost always disobeyed the
Constitutional Court’s decisions related directly or indirectly to ordinary and/or
administrative law issues. And the Constitutional Court has insisted on compliance with
its decisions.
Based on their diverse interpretations of constitutional jurisdiction over the same
subject matter, the Supreme Court of Justice and the Council of State have
simultaneously claimed the authority or right to decide ordinary and administrative law
issues, and thus denied the Constitutional Court this authority. At the same time, the
Constitutional Court has claimed authority over issues involving fundamental rights and
thereby denied it to the Supreme Court of Justice and the Council of State. Since the
Constitutional Court reviews decisions issued by the Supreme Court of Justice and the
Council of State, the subject matter over which authority is claimed—either from a
fundamental rights perspective or from an ordinary or administrative law perspective—
coincides. Thus, coexisting putative claims of authority exist in the relationship between
the Supreme Court of Justice, the Council of State, and the Constitutional Court.
To support the above assertions, I first explore the different types of disobedience
among the Colombian high courts. Then, based on cases of open disobedience of the
Constitutional Court’s orders on the one hand, and the Constitutional Court’s insistence
on the implementation of these orders on the other, I highlight language of concurrent
claims of authority by the Colombian high courts and the denial of other high courts’
authority as a result. Each court bases these claims on its interpretation of the 1991
Constitution.
206
The Colombian case is illuminating since it shows how, in addition to the fact that
lack of obedience can be manifested in disobedience or compliance, disobedience can be
manifested in several degrees. It can range from the subject’s disobedience of the putative
authority’s erga omnes implicit commands to the obstruction of the authority’s possibility
of issuing a command.
Like a crescendo in music, disobedience of Constitutional Court orders related to
ordinary or administrative law issues by the Supreme Court of Justice and the Council of
State can be classified along a scale of increasing intensity. In this section, I explore three
increasingly serious types of disobedience: (a) the softest form of disobedience is the
denial of precedent from their own cases or from the Constitutional Court as a source of
law. This denial is contrary to the position of the Constitutional Court, which sees
precedent - in ordinary, administrative or constitutional law matters – as a source of law.
This type of disobedience is followed by (b) consistent disobedience of the Constitutional
Court’s remedies during judicial review of judicial decisions. Finally, (c) there is a
blatant case of disobedience where, like in a one way game of hide and seek, the Supreme
Court of Justice, after declaring that judicial review of judicial decisions is not legal,
retains exclusive possession of the guardianship records and denies access to them in
order to frustrate the possibility of review by the Constitutional Court.
5.3.1 Precedent as a Source of Law
Prior to 1991, Colombia, as a civil law system, did not utilise the concept of binding
precedent. Since judges were supposed to apply law and not create it, the only accepted
binding sources of law were statutes and the text of the constitution. The furthest
Colombian legal doctrine had gone in terms of accepting binding precedent as part of the
207
legal system prior to 1991 was the “probable doctrine.” The “probable doctrine” implied
that, following three identical decisions coming from one court, the Supreme Court of
Justice and the Council of State could decide an identical case in the same way.
With its creation in 1991, the Constitutional Court attempted to introduce the
concept of binding precedent to constitutional law issues and to ordinary law matters.
That is to say, the Constitutional Court asked the Supreme Court of Justice and the
Council of State to respect both their own precedents and those of the Constitutional
Court. The preexisting courts, however, have been reluctant to implement this change.
In its attempt to make precedent binding in Colombia, the Constitutional Court
has had to overcome a constitutional provision which expressly identifies judicial
decisions as auxiliary sources of law. Article 230 of the 1991 Constitution provides:
“Judges, in their decisions, are subject only to the empire of the law. Equity, judicial
decisions, general principles of law and legal doctrine are auxiliary criteria for judicial
activity.” 609 Due to a tradition of attachment to the strict text of the constitution, the
Supreme Court of Justice and the Council of State have consistently relied on this
constitutional provision to support their rejection of the doctrine of binding precedent.
Below, I contrast the considerably different positions of the Constitutional Court, on the
one hand, and the Supreme Court of Justice and the Council of State, on the other,
regarding the binding character of precedent.
The refusal of the Supreme Court of Justice and the Council of State to recognise
the binding character of precedent is a case of disobedience of the Constitutional Court’s
command because, to the Constitutional Court, its position regarding the binding
609
Translated by the author.
208
character of precedent as a source of law itself constitutes a binding precedent. In this
sense, the Constitutional Court’s position vis-à-vis the binding character of precedent is
an implicit command. And as binding precedent of a high court, the Constitutional
Court’s position aims to have erga omnes effect. Thus, when the Supreme Court of
Justice and the Council of State do not accept precedent as a source of law they are
disregarding a command of the Constitutional Court.
5.3.2 The Constitutional Court’s Recognition of Precedent as Binding Law
For the Constitutional Court, precedent, even regarding subjects other than constitutional
law, is a source of law. This is because, according to the Constitutional Court, the binding
character of the judge’s previous decision is necessary to guarantee equal protection and
to respect hierarchically superior members of the judiciary. 610
The Constitutional Court derives the importance of binding precedents from its
understanding of Article 230 of the 1991 Constitution, which provides that judges are
exclusively subject to the rule of law, because, to the Constitutional Court, the word law
includes the constitution and its interpretation by the Constitutional Court. 611
Bernal Méndez v. Superior Tribunal of Bogota, judgment T-057-97 CC, clearly
illustrates the Constitutional Court’s position regarding the binding character of
precedent. In Bernal Méndez, the Council of State, acting as an appellate guardianship
judge, did not grant leave to proceed with a guardianship action against a judicial
610
See judgment T-1017-99 CC. Plaintiffs argued that the COS violated their fundamental rights to due
process and access to justice since the COS interpreted procedural norms in a way that led to the COS
delivering an inhibiting decision and not one that addressed the subject matter of the case. The
Constitutional Court granted guardianship protection and, instead of merely remanding the case to the COS
to deliver a new decision, ordered the COS to “take the necessary measures to deliver a decision on the
merits.”
611
See judgment SU-1159-03 CC.
209
decision. Contrary to the Constitutional Court’s precedent, the Council of State, acting as
an appellate guardianship judge, found that a guardianship action against any judicial
decision was not legal. The guardianship action was not legal because judges enjoy
independence and autonomy and are exclusively under the “empire of law” or subject
exclusively to the law—and, thus, are not subject to the Constitutional Court’s precedents
regarding the viability of judicial review of judicial decisions since such precedents are
viewed as merely ‘auxiliary’ sources of law.
The Constitutional Court reviewed the guardianship judicial decisions in Bernal
Méndez and remanded the guardianship action to the trial level guardianship judge,
ordering a decision on the substance of the lawsuit. In its second hearing of the case, the
trial guardianship judge delivered a decision on the substance of the case itself. But after
the trial court heard the case, the Council of State, Second Chamber, again acting as an
appellate guardianship judge, did not study the substance of the matter, and instead
insisted that judges are exclusively under the “empire of law” and enjoy independence
and autonomy and, thus, they are not subject to judicial review.
In its second review of the case, the Constitutional Court made it clear that
judicial independence has to be harmonised with equal protection under the law, on pain
of judicial arbitrariness if this harmonisation was not properly effected. In this particular
case, the Constitutional Court found that the Council of State disregarded the
Constitutional Court’s precedents in violation of equal protection laws because the
Council of State, without justification, declined to grant leave for the guardianship action
to proceed. 612 Furthermore, the Constitutional Court reminded the Council of State that
612
See judgment T-057-97 CC.
210
the unswerving jurisprudence of the Constitutional Court regarding the validity of
guardianship actions against judicial decisions itself constituted binding constitutional
doctrine.
In the eyes of the Constitutional Court, disregard of precedent is so serious that it
alone is a sufficient basis for judicial review of judicial decisions through a guardianship
action. According to the Constitutional Court, a guardianship action against a judicial
decision is permissible if judicial precedent is not recognised. 613
Torres Murcia v. Administrative Tribunal of Meta, judgment T-341-08 CC,
exemplifies the possibility of bringing a guardianship action against a judicial decision
for not having followed the Constitutional Court’s precedent. In this case, the
Constitutional Court studied a guardianship action against an Administrative Tribunal’s
decision due to the Administrative Tribunal’s disobedience of the Constitutional Court’s
precedent regarding the duty to give reasons when terminating a civil servant. The
Constitutional Court recalled that an indirect violation of the 1991 Constitution came
from acting contrary to its precedent, due to its status as the conclusive interpreter of
constitutional matters. Under these hypotheses, the Constitutional Court granted
guardianship protection against the decisions under review, which had disregarded the
Constitutional Court’s precedents.
5.3.3 The Supreme Court of Justice’s Multifaceted Denial of Precedent
Despite the Constitutional Court’s holdings on the binding character of precedent, the
Supreme Court of Justice does not see precedents as binding. The Supreme Court of
613
See judgment T-441-03 CC, which included disobedience of precedent as a reason for GAJD to proceed.
See also judgment T-282-05 CC, where the Constitutional Court found that there was a de facto act for
non-application of its precedent regarding the termination of executive procedures when a loan was
reliquidated by the bank.
211
Justice’s main argument for denying the binding character of precedents, its own
precedent included, is that the 1991 Constitution itself affirms that judges are subject only
to “the law,” a concept that – for the Supreme Court of Justice - does not include judicial
precedent. 614 For the Supreme Court of Justice, “the law” deals only with positive,
entrenched, written norms, and excludes the reasoning of other judges in particular cases.
Along with a court’s disobedience of its own precedent, the Supreme Court of
Justice has developed a paradigmatic case of disobedience. This paradigmatic case
consists in disobedience of a court’s own precedent coupled with defiance of the
Constitutional Court’s precedent, which corresponded to the initial labour law
interpretation of the Supreme Court of Justice. This is the context of the cases explained
below.
The trend began with Pachón Guevara et al. v. Supreme Court of Justice,
judgment SU-120-03 CC, the first case in which the Supreme Court of Justice
disregarded its own precedent in a labour case. In previous cases with similar facts, the
Supreme Court of Justice ordered the indexation of salary in calculating a plaintiff’s first
pension benefit. The Supreme Court of Justice based this decision on equity, since there
was no statutory provision mandating such indexation. Nonetheless, in the decisions
under guardianship review in Pachón Guevara et al., the Supreme Court of Justice
rejected the practice of taking salary indexation into account when calculating the amount
of a plaintiff’s pension benefits.
The Constitutional Court noted that the Supreme Court of Justice’s decision in
this case was contrary to its previous decisions. According to the Constitutional Court,
614
Judgment of the SCJ, Civil Chamber acting as guardianship judge in judgment T-006-92 CC.
212
every application of a particular law, when it comes from the same statute, must be
general and uniform so that it provides citizens with the security of acting according to
precedents. For the Constitutional Court, it would be worthless to affirm the principle of
equal protection of the law and yet leave the judge free to apply it according to her will,
potentially changing its interpretation at any moment without adequate justification.
According to the Constitutional Court, the Supreme Court of Justice itself should not
ignore its responsibility to unify statutory interpretation by applying its own
precedents. 615
In the following judgments, the Supreme Court of Justice, Labour Chamber, ruled
on cases with facts identical to those in Pachón Guevara et al., judgment SU-120-03 CC,
and yet did not follow the Constitutional Court’s precedent: Niño Terreros v. Supreme
Court of Justice, judgment T-805-04 CC; Carreño Patarroyo v. Supreme Court of
Justice, judgment T-815-04 CC; Feige Associated v. Supreme Court of Justice, judgment
T-013-05 CC; Contreras Gil v. Supreme Court of Justice, judgment T-296-05 CC;
Gonzalez Alarcón v. Supreme Court of Justice at al., judgment T-098-05 CC; Hurtado
Ramirez v. Supreme Court of Justice, Labour Chamber, judgment T-045-07 CC; Gaitán
Urrea v. Supreme Court of Justice, Labour Chamber, judgment T-425-07 CC; and
Bastidas Rodríguez v. Supreme Court of Justice, Labour Chamber, judgment T-1055-07
CC. 616 In these cases, owing to the Supreme Court of Justice’s continued refusal to apply
its own precedent and the precedent established in Pachón Guevara et al., the
615
See judgment SU-120-03 CC. Nonetheless, the Constitutional Court made clear “that the state of
relative certainty created by the respect of previous judicial decisions should not be taken as sacred since
the materialization of justice is a superior principle and judges must adequate their decisions to changing
situations, and judicial mistakes must always be corrected.” [translated by the author]. In the same vein, see
judgment T-663-03 CC.
616
Additionally, in the former cases, the SCJ, acting as guardianship judge, refused to send the cases to the
Constitutional Court for possible review.
213
Constitutional Court decided not to declare the Supreme Court of Justice’s decisions null
and void. Instead, on guardianship review, the Constitutional Court directly ordered the
indexation of salary before calculating a pension benefit. Consequently, two
contradictory judgments coexisted and were actually applied to the parties in the process:
that of the Supreme Court of Justice in the ordinary judicial process and that issued by the
Constitutional Court acting as guardianship judge. 617
Sometimes, the Supreme Court of Justice’s disregard of the Constitutional Court’s
precedent has gone so far that the Supreme Court of Justice has disobeyed judgments of
abstract control of constitutionality where the Constitutional Court has declared a norm
unconstitutional with erga omnes effects. 618 For example, in Salazar Palencia v. Supreme
Court of Justice, judgment T-678-03 CC, the Supreme Court of Justice applied a criminal
law norm already declared unconstitutional by the Constitutional Court. According to the
Constitutional Court, the Supreme Court of Justice committed a de facto act as a result.
5.3.4 The Council of State’s Denial of Precedent
The Council of State denies the binding character of precedent—in particular precedent
of the Constitutional Court. For the Council of State, the judicial autonomy and
617
The Criminal Chamber as well as the Labour Chamber have disregarded the precedent of the
Constitutional Court on criminal law matters. In the Rondón Fernández v. SCJ et al. judgment, SU-1722-00
CC, the SCJ did not apply a Constitutional Court precedent regarding the interpretation of the
constitutional-criminal law principle of prohibition of non reformatio in pejus (prohibition on reforming a
sentence to the prejudice of the accused, if the accused alone has brought a motion before the court).
618
A judgment with erga omnes effects binds the entire Colombian population. This is the case of abstract
control of statutes when the statute itself is challenged under the constitution and declared either
constitutional or unconstitutional even if this declaration is not essential to the particular case. If declared
unconstitutional, the statute derogates from the normative system.
214
independence imputed to it imply that its decisions do not have to agree with the views of
the Constitutional Court. 619
The Council of State denies, in an emphatic manner, the binding character of
Constitutional Court precedents when they touch on administrative law issues. For
example, in Mejía Castaño v. Council of State, judgment T-295-98 CC, the complainant,
a public servant, was dismissed. The administration dismissed the plaintiff without
providing reasons other than the administration’s desire to terminate him. According to
the Constitutional Court’s binding doctrine on the topic, the administration is supposed to
give reasons in all cases of dismissal. The Constitutional Court noted that even if the
Council of State did not itself fire the public servant without giving a reason, it did not
restrain the administration from so doing and, therefore, committed a de facto act. 620 The
Council of State, Third Chamber, acting as guardianship judge in the case, had decided
not to grant guardianship protection. 621
The Constitutional Court granted guardianship protection and, instead of
remanding the case to the Council of State to correct the violation, validated the judicial
decision that ordered the administration to restore the plaintiff to his job—a decision the
Council of State, Second Chamber, had reversed. The decision not to remand the case
was possibly due to the fact that the Constitutional Court feared that the Council of State
619
620
621
The COS decided that the judgment under review was not arbitrary or capricious because it was based
on judicial doctrine of the COS. It is interesting to see how, in this case, the COS did not wholly deny the
binding character of precedent since it quoted its judgment as authoritative, but only denied that the
precedents of the Constitutional Court were binding. Although the denial of the binding character of the
precedent was only partial, the disobedience to the Constitutional Court’s doctrine on administrative law
matters was still present.
215
would again disobey the Constitutional Court’s jurisprudence if the case were sent back
for redetermination. 622
5.3.5 Disobedience of Remedies Ordered by the Constitutional Court
Disobedience of the Constitutional Court is more specific than the above examples when
the Supreme Court of Justice and the Council of State, acting as defendants in
guardianship cases decided by the Constitutional Court, disobey the latter’s decision on
the case.
The case of Cadena Antolinez v. Supreme Court of Justice et al., judgment SU-
1185-01 CC, is a clear example of disobedience of the Constitutional Court’s concrete
remedies. In Cadena Antolinez, the Constitutional Court addressed a case in which the
Supreme Court of Justice decided not to follow its own precedent regarding the
protection of unionised workers. Mr. Cadena Antolinez was a public servant who,
according to previous Supreme Court of Justice decisions, would have had the right to a
pension. Nevertheless, in Mr. Cadena Antolinez’s case, the Supreme Court of Justice
decided, without express justification, to disregard its precedent, thus affecting plaintiff’s
right to a pension. In the Constitutional Court’s opinion, the Supreme Court of Justice,
Labour Chamber, committed a de facto act by failing to declare a labour judgment that
disregarded its own precedent null and void.
The Constitutional Court remanded the case to the Supreme Court of Justice.
While in a previous case the Supreme Court of Justice recognised the right to a pension
based on a plaintiff’s collective agreement, in the case under study, which shared the
622
For disobedience of the Constitutional Court’s reasoning on precedent in a case regarding the process of
firing public servants, see also judgment T-254-06 CC. In this case, however, guardianship protection was
granted, but the Constitutional Court followed its traditional remedy of declaring the judgment null and
void and remanding it to the COS.
216
same facts as the previous cases, the Supreme Court of Justice did not recognise such a
right 623 —thus disregarding its own precedent. After the Constitutional Court granted
protection, the Supreme Court of Justice did not render a new decision. Thus, by
interlocutory decision A-010-04 CC in Cadena Antolinez v. Bank of the Republic, the
Constitutional Court itself issued a new remedy that granted Mr. Cadena Antolinez the
right to a pension. Yet, Mr. Cadena Antolinez’s former employer, the defendant in the
ordinary procedure, did not recognise his right to a pension after the Constitutional Court
issued the new remedy. Nor did the Supreme Court of Justice take any action against Mr.
Cadena Antolinez’s former employer to require recognition of the right to a pension
according to the Constitutional Court’s orders.
Delay in compliance with the Constitutional Court’s decision was so excessive
that Mr. Cadena Antolinez brought a complaint against the Colombian State, in particular
the Supreme Court of Justice, before the Inter-American Commission of Human Rights.
The Inter-American Commission of Human Rights, in turn, issued a report advocating
Mr. Cadena Antolinez’s right to judicial protection due to the lack of appropriate
compliance with Cadena Antolinez, judgment SU-1185-2001 CC.
In Report Nº 44/08, case 12.448, merits, Sergio Emilio Cadena Antolinez,
Colombia, July 23, 2008, the Inter-American Commission on Human Rights asserted:
53. The instant case shows that the effect of the so-called “train crashes” is
to create and perpetuate a situation of lack of definition of rights, be they
recognized or denied by superior courts: the Supreme Court of Justice, the
Council of State [Consejo de Estado] and the Constitutional Court. The
conflict between these high judicial venues leaves the user of the judicial
system under uncertainty as to which course of action to follow in those
cases in which judicial decisions violate rights protected by the American
623
In contrast to previous identical cases, the SCJ argued in this case that, although the collective
agreement did not establish a minimum age to obtain a pension, the statutory law did and the latter
prevailed over the former.
217
Convention. In those cases in which they file a successful petition for tutela,
the fulfillment of their rights is subject to additional lack of compliance and
to further procedures. 624
In addition to Cadena Antolinez, the Supreme Court of Justice has disobeyed
precedent in numerous other cases. 625
The judgment in Pro-Poor Children Foundation v. Council of State, judgment T-
836-04 CC, is an example of the Council of State’s disobedience of the Constitutional
Court’s remedial orders. In this judgment, the Constitutional Court studied a guardianship
action brought against the Council of State, First Section. In a judicial interlocutory
decision, the administrative judge refused to grant leave to proceed with a judicial action
that claimed simple invalidity against an individual administrative act. The trial
administrative judge held that the deadline to bring an action of simple invalidity against
an individual administrative act was not three years but three months—the same limit for
bringing an action that claimed invalidity of the administrative act along with claims for
reparation in the form of damages. The trial administrative judge’s decision was based on
the assertion that this limit only applied to claims of simple invalidity against an
administrative act of general character. The Council of State confirmed the trial
administrative judge’s decision because, in the view of the Council of State, a litigant
who seeks to invalidate an individual administrative act will necessarily obtain some
form of reparation if the act in question is declared invalid.
624
See Inter-American Commission of Human Rights, "Report Nº 44/08, case 12.448, merits, Sergio
Emilio Cadena Antolinez v. Colombia", online: Inter-American Commission on Human Rights
<http://www.cidh.org/annualrep/2008eng/Colombia12.448eng.htm>. [emphasis added]. The Inter-
American Commission on Human Rights does not translate the term tutela as a guardianship action, but
rather leaves it in the original language. In the above passage, the term “tutela” should be read as meaning
a guardianship action.
625
See Mendez Espinosa v. SCJ, judgment T-1306-01 CC. Accord Aramburo Restrepo v. SCJ, judgment
SU-613-02 CC; Pachón Guevara et al v. SCJ, judgment, SU-120-03 CC; Contreras Gil v. SCJ, judgment
T-296-05 CC; López Salazar v. SCJ, judgment T-109-05 CC; and Arbelaez Castaño v. SCJ, judgment T-
272-05 CC.
218
According to the Constitutional Court, this judgment constituted a de facto act
since the article that regulated the deadlines to bring administrative law lawsuits had been
declared constitutional based on the understanding that the application of the three
months deadline within which to bring the lawsuit did not apply to the case of simple
invalidity against an individual administrative act. For the Constitutional Court, this
short, three month deadline constituted a denial of access to justice. By validating the trial
judgment applying the three months deadline, the Council of State disregarded a
judgment of the Constitutional Court. As a remedy, the Constitutional Court declared the
Council of State’s appellate interlocutory decision null and void and ordered the Council
of State to issue a motion to proceed, following the procedure used in judgment Hoyos
Lemus, judgment C-426-02 CC.
In its interlocutory decision of November 9, 2004,626 the Council of State declared
Pro-Poor Children Foundation, judgment T-836-04 CC, null and void. According to the
Council of State, the Constitutional Court acted against the 1991 Constitution by issuing
a judgment without jurisdiction, as the subject matter at issue belonged exclusively to the
Council of State. The Council of State added that the Constitutional Court’s decision had
no effect on its own interlocutory decision. The Council of State also declared that its
interlocutory decision was still valid and constituted res judicata.
The Council of State has since reiterated its disobedience of the Constitutional
Court’s concrete remedies in guardianship actions. 627
626
Reference IJ Num: 11001031500020040027001 [9 November 04] COS, Full Chamber.
627
See e.g. Bedoya Becerra v. COS, judgment T-902-05 CC.
219
5.3.6 Avoidance of Judicial Review by the Supreme Court of Justice: a One-way
Game of Hide and Seek
Reaching the peak of disobedience, the relationship between the Constitutional Court and
the Supreme Court of Justice has become a one-way game of hide and seek. The Supreme
Court of Justice avoids all eventual review of its decisions by the Constitutional Court by
retaining the guardianship records, and the Constitutional Court insists on the Supreme
Court of Justice’s duty to send all guardianship files for its eventual review.
To understand what the one-way game of hide and seek is about, some Colombian
constitutional procedural law background must be provided. From 1991 to 2001, any
Colombian judge acting in a guardianship capacity could decide a guardianship action
against any individual judge, tribunal or court. For example, a municipal criminal judge
could decide a guardianship action against the Council of State. Nonetheless, the
Supreme Court of Justice and the Council of State could not decide any guardianship
action while acting as trial judge, in order to protect the constitutional right to appeal a
judicial decision. In 2001, however, the Colombian Government passed Decree 1382
under which guardianship actions against judicial decisions could only be decided by a
judge in a hierarchically superior position to that of the judge against whom the
guardianship action was brought. And, in the case of the high courts, guardianship actions
against judicial decisions could only be decided by the high court that delivered the
judicial decision under review. The Constitutional Court opposed this Decree due to the
possibility that the two other high courts could decide a guardianship action against a
judicial decision brought against themselves, in potential violation of the constitutional
right to appeal a judicial decision. Nonetheless, because the Council of State decides over
220
the constitutionality of decrees and it found the decree under study constitutional, 628
Decree 1382 has been applied from 2001 onward.
Initially, the Supreme Court of Justice and the Council of State studied
guardianship actions brought against themselves, deciding these cases by applying their
guardianship doctrine, according to which guardianship actions were not legal against
judicial decisions and thus denying guardianship protection. Nonetheless, beginning in
2003, the Supreme Court of Justice began refusing to study these cases at all, instead
issuing short interlocutory decisions stating that a guardianship action against a judicial
decision was never legal, and suspending the record of guardianship action. By hiding the
record, the Supreme Court of Justice did not decide on the subject matter and also
avoided possible review of the suspended guardianship action’s record by the
Constitutional Court.
In response, plaintiffs began to bring complaints against the Supreme Court of
Justice to the Constitutional Court, asking the Constitutional Court to order the Supreme
Court of Justice to decide on the merits of the case and to send the file to the
Constitutional Court. Although there is insufficient information to determine when the
practice of failing to send records to the Constitutional Court for possible review began,
the first time the Constitutional Court publicly denounced this practice was in 2003. In
Salazar Palencia v. Supreme Court of Justice, judgment T-678-03 CC, the Constitutional
Court examined a case in which the Supreme Court of Justice, Criminal Chamber,
declined to grant leave to proceed with a guardianship action against its judicial decision,
failed to take into account the merits of the case, and never sent the record to the
628
See Judgment [18 July 2002] COS, First Section.
221
Constitutional Court until the Constitutional Court issued an interlocutory decision asking
the Supreme Court of Justice to do so. 629
According to the Constitutional Court, this practice of the Supreme Court of
Justice was unconstitutional, illegal, and went against the Constitutional Court’s
interpretation of the constitution, according to which a guardianship action against a
judicial decision is legal in cases of a de facto act. Moreover, the Constitutional Court
held that the Supreme Court of Justice’s argument that it is the apex of the judicial
hierarchy was not a valid reason to avoid review of its decisions. 630
Even when the Constitutional Court issued an interlocutory decision ordering the
Supreme Court of Justice to reactivate the case and send it to the Constitutional Court for
eventual review, the Supreme Court of Justice failed to send the case for possible review.
And, when, following the Constitutional Court’s insistence, the Supreme Court of Justice
finally sent guardianship actions against judicial decisions to the Constitutional Court for
possible review, it did so reluctantly.
The Supreme Court of Justice continued suspending the record of all the
guardianship actions against judicial decisions brought against it regardless of the drastic
mandate issued by the Constitutional Court in order to ensure its ability to review these
decisions. The Constitutional Court reacted vehemently against the Supreme Court of
Justice’s resumption of this conduct in its 2004 interlocutory decision Rodriguez Derlee
et al., A-004-04 CC. In that decision, the Constitutional Court accumulated 51 plaintiffs’
guardianship complaints against the Supreme Court of Justice for suspending the record
629
When deciding this guardianship case, the Constitutional Court ordered the SCJ to decide on the subject
matter at issue in the case by applying the reasoning contained in its judgment (since the SCJ had applied a
norm already declared unconstitutional, it concurred in or committed a de facto act).
630
222
of guardianship actions against judicial decisions without deciding them. After firmly
asserting that a guardianship action against a judicial decision was legal, even against the
Colombian high courts, the Constitutional Court allowed all 51 plaintiffs to bring their
guardianship actions against judicial decisions in front of any judge in the country. Thus,
the wide jurisdiction over these matters that existed previous to Decree 1382 was
reestablished (or at least affirmed by the Constitutional Court). In instances where the
Supreme Court of Justice declared that a guardianship action was unlawful and
suspended the record of the case without sending it to the Constitutional Court, the
affected individuals 631 would have the opportunity to bring the same guardianship action
in front of any Colombian judge, even in front of one at the lowest rung of the judicial
hierarchy. Despite this remedy, the Supreme Court of Justice did not change its attitude
towards guardianship actions against judicial decisions. It continued to suspend every
guardianship action against a judicial decision that was brought before it. 632
While the Constitutional Court continued to insist that the Supreme Court of
Justice send cases for its review, the language of the Supreme Court of Justice’s
arguments manifested its belief that the conduct of the Constitutional Court amounted to
631
Due to the inter-pares effect of the interlocutory decision, all affected individuals, even if they were not
parties to the case, could bring the same guardianship action in front of any Colombian judge.
632
In Niño Terreros v. SCJ, judgment T-805-04 CC; Carreño Patarroyo v. SCJ, judgment T-815-04 CC;
Feige Associated v. SCJ, judgment T-013-05 CC; González Alarcón v. SCJ, judgment T-098-05 CC;
Contreras Gil v. SCJ, judgment T-296-05 CC; Pupo de Rosanía v. SCJ et al., judgment T-016-06 CC;
Hurtado Ramírez v. SCJ, judgment T-045-07 CC; Gaitán Urrea v. SCJ, judgment T-425-07 CC; and
Bastidas Rodríguez v. SCJ, judgment T-1055-07 CC, the Constitutional Court found a repeated pattern of
cases of disobedience by the SCJ. First, in all of these cases, the SCJ had not given leave to proceed with
guardianship actions against its judicial decisions; second, the SCJ had not followed the Constitutional
Court’s precedent in Pachón Guevara v. SCJ, judgment SU-120-03 CC, regarding the need to index an
initial salary when calculating the amount of pension benefits for a retired person—a precedent which
would have favored the employee. Non-compliance with Rodriguez Derlee et al. was also evident in the
following Constitutional Court judgments reviewing guardianship actions against the SCJ, Labour
Chamber: Gutiérrez de Isaza v. SCJ, judgment T-1004-04 CC; López Salazar v. SCJ, judgment T-109-05
CC; Becerra de González v. SCJ, judgment T-570-05 CC; Rubio Ávila et al. v. SCJ, judgment T-070-07
CC; and Garavito Palacios v. SCJ, judgment T-1226-04 CC.
223
rebellion and anarchy. In Arbeláez Castaño v. Supreme Court of Justice, judgment T-
272-05 CC, 633 which questioned a previous judgment of the Supreme Court of Justice,
the Supreme Court of Justice did not comply with Rodriguez Derlee et al., arguing that it
was “a defense of judicial rebellion.”
After Rodriguez Derlee et al., the Constitutional Court did not issue an inter-
pares remedy regarding guardianship actions against the Supreme Court of Justice. The
interlocutory decision in Paredes Villalobos v. Supreme Court of Justice, A-100-08 CC,
is relevant since it is the first inter-pares interlocutory decision issued by the
Constitutional Court, Full Chamber, after the interlocutory decision Rodriguez Derlee et
al. In Paredes Villalobos, it took more than 19 months before the guardianship file
arrived to the Constitutional Court after having gone from one judge to the other without
a decision on the merits. In Paredes Villalobos, the Constitutional Court noted that
Article 86 of the 1991 Constitution provides that any public authority could be a potential
guardianship defendant, that judges are public authorities and, thus, their acts can be
questioned through a guardianship action when there is an alleged violation of
fundamental rights. The Constitutional Court then asserted that, due to the unusual and
unjustified delay by the Supreme Court of Justice and other judges of ordinary
jurisdiction in sending the case to the Constitutional Court for review, in the future
guardianship plaintiffs could present their cases directly to the Constitutional Court for
review when no ordinary judge was willing to act as guardianship judge.
633
According to the Constitutional Court, the SCJ acted under the colour of a causality of GAJD viability
while applying unconstitutional statutory interpretations which, according to the Constitutional Court, had
gone beyond the SCJ’s judicial autonomy and violated fundamental rights. The Constitutional Court
classified the SCJ’s interpretation as unconstitutional because the latter was disobeying the Constitutional
Court’s ratio decidendi regarding the application of the favourability principle in procedural criminal law
interpretation.
224
It was only in 2008 that a chamber of the Supreme Court of Justice agreed to send
guardianship actions against their judicial decisions to the Constitutional Court for
possible review. This development came after informal meetings of the Chief Justices of
the Supreme Court of Justice and the Constitutional Court during which the concept of a
conversation among the courts began to be put into practice.
Despite the beginning of a conversation among the high courts, the one-way game
of judicial hide and seek between the high courts has clearly not ended the conflict over
guardianship actions against judicial decisions. The Supreme Court of Justice, in the
majority of guardianship decisions sent to the Constitutional Court, still claims that the
action is unlawful. 634 Moreover, although the Supreme Court of Justice declares that a
guardianship action against its judicial decisions is not legal, the Supreme Court of
Justice still claims to be the only judge with jurisdiction over these guardianship
actions. 635
In sum, before 2008, as in a one-way game of hide and seek, the Supreme Court
of Justice openly disobeyed guardianship review of its decisions. 636 In doing so, it denied
the Constitutional Court’s authority over decisions of the Supreme Court of Justice.
Simultaneously, the Supreme Court of Justice’s proclamation of absolute authority over
634
For the non-admission of GAJD by other chambers of the SCJ, apart from the Labour Chamber, see,
among others, Constitutional Court of Colombia , Full Chamber, Interlocutory Decisions October 29th,
2008, A-045-09 CC, February 4th, 2009, A-116-09 CC, March 11th, 2009, A-117-09 CC, March 11th, 2009,
A-118-09 CC, March 11th, 2009, and A-119-09 CC, March 11th, 2009.
635
See interlocutory decision File1100102030002008-01749-00 [1 September 2009] SCJ, Civil Chamber
(as an example of an interlocutory decision that refused to grant leave to proceed in a guardianship action
against the SCJ). But see the interlocutory decision in Reference: guardianship action 42004 [9 June 2009]
SCJ, Criminal Chamber (the SCJ accepted the authority of a judge other than a member of its bench to
decide on the subject matter of a guardianship action brought against the Criminal Chamber. Note,
however, that this decision was delivered by interim justices because the Criminal Chamber judges had an
impediment to decide a case that they had previously decided).
636
The game is one-way since in “hide and seek” if someone is found, they may later be “it” – i.e., the
person who searches for others who hide. But in the Colombian case the SCJ has not played the role of “it”
since the Constitutional Court has not hidden any files that the SCJ is looking for.
225
ordinary law issues was reinforced every time it decided to suspend a record in a
guardianship action against its judicial decisions. At the same time, the Constitutional
Court never stopped asserting, and never renounced, its authority to review the Supreme
Court of Justice’s decisions, thus denying the Supreme Court of Justice the final say over
all ordinary issues and, from the Constitutional Court’s point of view, reinforcing the
supremacy of the 1991 Constitution and of the Constitutional Court as its guardian.
Additionally, even after 2008, no authority has been able to decide which of the high
courts is acting correctly.
5.4 Disobeying and Claiming Authority
The Supreme Court of Justice’s and the Council of State’s rejection of precedent and
disobedience of the Constitutional Court’s judgments, and the Constitutional Court’s
opposition to such acts of disobedience, have a common factor. Disobedience and
opposition to disobedience are justified by a claim of authority itself and a denial of
authority to the opposite court. The use of the language of exclusive possession of
authority is not surprising in a context of SLP because official institutions, by virtue of
their belonging to the state, tend to base their language on the state’s language. The
language of the state as the ruler of its subjects stresses the state having authority and the
will to enforce it, as is portrayed in the doctrine of political authority.
According to Leslie Green, a distinctive feature of the state is “the claim to have
authority and the willingness to enforce it.” 637 Consequently, in essence, the state does
637
226
not recognise that it is acting outside of authority. 638 Not only is it the nature of the state
to claim authority but also to claim having a monopoly on the exercise of authority - even
if it does not in fact have such authority - and on manifesting a willingness to defend this
claim vis-à-vis other agents. 639 If this is the nature of the state’s authority, it is logical
that, by way of belonging to the state, official institutions’ simultaneous claims of
authority and the intention to enforce these claims characterise an occurrence of legal
pluralism within the state.
In the Colombian case, the above-mentioned elements exist in the courts’
discourse. These elements exist despite the fact that the Constitutional Court places
emphasis on its intention to enforce authority more than on its claim to have such
authority, while the Supreme Court of Justice and the Council of State emphasise the
claim of authority more than the will to enforce it.
Below, I analyse the use of the justificatory language of authority by the Supreme
Court of Justice and the Council of State in the context of their disobedience of remedial
orders asserted against them by the Constitutional Court. I also study this language in the
context of the Supreme Court of Justice’s suspension of guardianship records. To study
the justificatory language of authority used by the Constitutional Court, I analyse the
Constitutional Court’s insistence on compliance with remedies of guardianship actions
against the other two high courts and its demand that the Supreme Court of Justice send
all guardianship records for its review. As will be shown, the reason for the simultaneous
claim of authority is the Supreme Court of Justice’s and Council of State’s failure to
recognise the Constitutional Court as the superior authority in issues over which these
638
Ibid at 75.
639
Ibid at 82.
227
two courts claim jurisdiction, coupled with the Constitutional Court’s concurrent
insistence on being the highest ranking judicial organ that protects the 1991 Constitution.
5.4.1 The Supreme Court of Justice’s Language of Authority
The Supreme Court of Justice uses language that emphasises the Constitutional Court’s
lack of authority over ordinary law. Simultaneously, the Supreme Court of Justice uses
language that emphasises its authority to rule on ordinary law issues. The Supreme Court
of Justice presents its claim of authority - and the lack of the Constitutional Court’s
authority - as the central reason for ignoring or disobeying the Constitutional Court’s
decisions in matters of ordinary law. In these cases of disobedience, the Supreme Court
of Justice’s claim to authority is not presented to a subject in order to ask for obedience,
but rather is presented to a simultaneous authority-claimant (the Constitutional Court) in
order to assert a claim of exclusivity on the right to command or to rule over ordinary law
issues. Even if the Supreme Court of Justice does not expressly use the word “authority,”
its discourse involves authority-related concepts that entail the constitutional right to
command, exclusivity in the exercise of this right, and its place as superior in the
hierarchy of the high courts. All these claims are based on the Supreme Court of Justice’s
interpretation of the constitutional attribution of jurisdiction.
For example, in order to justify its disobedience of the Constitutional Court’s
declaration that certain of its judgments are invalid, the Supreme Court of Justice has
claimed that it is the “maximal tribunal” of ordinary jurisdiction, 640 the “judicial apex”
and “maximum expression of judicial hierarchy,” 641 according to the 1991 Constitution
640
See File No. 10797 Record No. 11[3 April 2000] SCJ, Labour Chamber.
641
See Judgment of the SCJ acting as a guardianship judge in judgment T-678-03 CC.
228
(Article 234). As such, the Supreme Court of Justice argues that it is not subject to any
external superior court or institution, 642 and that it is not legally possible to review or
interfere with its processes as already decided by it as competent judge. 643 The Supreme
Court of Justice perceives itself as the ultimate organ in the judicial hierarchy, and argues
that the 1991 Constitution establishes a moment when the Supreme Court of Justice’s
decisions are to be taken as the end of the judicial process and, thus, unreviewable. 644
Following this trend, in the Supreme Court of Justice’s view, the Constitutional Court
may not impose its opinion in affairs which the Supreme Court of Justice sees within its
exclusive constitutional competence. 645
The reason for not obeying the Constitutional Court’s mandates, irrespective of
content, is the Supreme Court of Justice’s failure to recognise the authority of the
Constitutional Court. And the Supreme Court of Justice’s reason for insisting in each
decision that it has to be obeyed, without further justification as to why, is that it has
authority. Moreover, by retaining the guardianship records, the Supreme Court of Justice
tacitly expresses its desire not only to have the right to command, but to possess
exclusive authority on the matter in question.646
5.4.2 The Council of State on Disobedience: a Discourse of Authority and not
Subjugation
642
See Judgment of the SCJ, Civil Chamber acting as guardianship judge in judgment T-006-92 CC.
643
See File No. 10797 Record No. 11 [3 April 2000], SCJ, Labour Chamber. Accord judgment of 11 June
1997, SCJ, Criminal Chamber, acting as guardianship judge in judgment T-533-97 CC.
644
See File Nº 13396 Record Nº 11 [19 March 2002] SCJ, Labour Chamber (regarding compliance with
Constitutional Court judgment T-1306-01).
645
See File No. 12316 Record No. 69 [October 2003] SCJ, Labour Chamber.
646
As explained above, to this marked disobedience a radical insistence on obedience by the Constitutional
Court followed through its interlocutory decisions A-004-04 CC and A-100-08 CC.
229
The Council of State’s discourse on disobedience of the Constitutional Court’s
declaration that its decisions are invalid is also an example of the Council of State
making an express claim of authority for itself and, subsequently, denying the authority
of the Constitutional Court. The Council of State perceives itself as independent and
autonomous—features it argues are based on the constitutional distribution of
jurisdiction. 647 By asserting its independence and autonomy, the Council of State does not
recognise the Constitutional Court’s authority. Thus, no obedience is due to the
Constitutional Court, and the Constitutional Court’s opinions are viewed as mere
suggestions or auxiliary criteria. In this view, allowing the decisions of the Council of
State to be subject to judicial review by the Constitutional Court would amount to
barbarism, legal disorder, or a demented legal order. 648
In addition to being autonomous and independent, the Council of State regards
itself as having superior jurisdiction over administrative law. The Council of State
proclaims itself the final court of jurisdiction for administrative law matters, and supports
this claim with the terms of Article 237 (1) of the 1991 Constitution. According to Article
237 (1) “It is of the Council of State Jurisdiction: 1. To be the supreme tribunal over
administrative law matters, according to the terms statutorily established.” As such, the
647
See Reference: 11001-03-15-000-2007-01050-00(AC) [11 October 2007] COS, Second Chamber,
Subsection B. See also Reference: 11001-03-15-000-2005-00824-00(AC) [October 2006] COS, Fourth
Chamber; Judgment of the COS, Second Chamber, acting as guardianship judge in judgment T-057-97 CC
(for the idea of violation of judicial independence); and Reference: 25000-23-24-000-2006-00650-01(AC)
[29 June 2006] COS.
648
See judgment of the COS, Second Chamber, Subsection A, acting as guardianship judge in judgment T-
057-97 CC.
230
Council of State views its decisions as not subject to review or modification, as it is the
ultimate arbiter. 649
It should be noted that the Council of State demands to be obeyed and not subject
to judicial review based on its authoritative nature and not based on the correctness of a
decision it may render, as is normal for an authority-based, content-independent
argument. Simultaneously, the Council of State sees the Constitutional Court as its
subject in administrative law matters, and, thus, the Council of State denies the
Constitutional Court the possibility to deliberate over its commands. The Council of State
judges the Constitutional Court’s claim to authority over matters of administrative law as
barbaric or disordered because of the respect that is generally afforded to the Council of
State’s perceived independent and superior position within the realm of administrative
law. Moreover, when the Council of State’s exclusive jurisdiction over or right to
expound on the law is accepted as constitutional, and thus the content of its decisions is
regarded as the highest judicial norm, the Constitutional Court’s claim of authority would
lack validity. For the Council of State, the Constitutional Court’s guardianship review of
the Council of State’s judgments is inadmissible and violates the 1991 Constitution
because, the Council of State says, through this review the Constitutional Court identifies
649
Reference: 11001-03-15-000-2006-01318-01(AC) [29 March 2007] COS, Second Chamber, Subsection
B [translated by the author]. See by the same subsection, Reference: 11001-03-15-000-2006-01226-
00(AC) [1 November 2006], Reference: 11001-03-15-000-2007-00660-00(AC) [28 June 2007]; Reference:
11001- 03-15-000-2007-01009- 00(AC) [27 September 2007]; Reference: 11001-03-15-000-2007-00560-
00(AC) [5 June 2007]; Reference: 11001-03-15-000-2007-00600-00(AC) [14 June 2007]; and Reference:
11001-03-15-000-2007-00753-00(AC) [19 July 2007]. See also Reference: 11001-03-15-000-2007-00692-
00(AC) [28 June 2007] COS, Second Chamber, Subsection A; Reference: 11001-03-15-000-2007-00751-
00(AC) [23 August 2007] COS, Second Chamber, Subsection A; and Reference: 11001-03-15-000-2007-
00489-00(AC) [14 June 2007] COS, Fifth Chamber.
231
itself as the “hierarchical superior of all” 650 and “the last say on various matters of
law,” 651 without any supporting norm.
The Council of State argues that it is the ultimate tribunal for administrative law
matters and maintains that authority over this subject matter cannot be vested in more
than one institution simultaneously. Consequently, to the Council of State, the
Constitutional Court lacks authority to deliver decisions in guardianship actions over
judicial decisions. As a result, when the Constitutional Court delivers decisions in
guardianship actions over administrative law judicial decisions, its judgments amount to a
de facto act 652 and are worthy of disobedience. 653
Furthermore, the Council of State regards the Constitutional Court’s review of the
Council of State’s judgments through guardianship actions not only as a de facto act but
also as deserving of disciplinary punishment. 654 In this context, threats of punishment
could be seen as a method of coercion with respect to the Council of State’s last say; this
use of coercion would be legitimate for the Council of State as the exclusive holder of
authority.
5.4.3 The Constitutional Court on Disobedience
650
See Reference: 11001-03-15-000-2005-00824-00(AC) [October 2006] COS, Fourth Chamber.
651
See Reference: 11001-03-15-000-2004-00308-01(AC) [9 July 2004] COS, First Chamber. Accord
Reference: 11001-03-15-000-2006-01238-01(AC) [1 March 2007] COS, First Chamber. See also File: AC-
10203[29 June 2004] COS; and Reference: 11001-03-15-000-2007-00441-01(AC) [15 November 2007]
COS, First Chamber.
652
See Reference: 25000-2325-000-1998-5123-01(4361-02) [20 September 2006] COS, Full Chamber.
653
See Reference: 11001-03-15-000-2005-00824-00(AC) [October 2006] COS, Fourth Chamber. See also
Reference: 110010315000200400270 [9 November 2004] COS, Full Chamber.
654
See Reference: 25000-2325-000-1998-5123-01(4361-02) [20 September 2006] COS, Full Chamber.
Under the terms of the Article 174 of the 1991 Constitution, the institution that will eventually punish the
justices of the Constitutional Court is the Senate. But this punishment will come as a result of a request by
the COS.
232
While the Supreme Court of Justice and the Council of State claim not to have a duty to
obey, the Constitutional Court claims a right to command and, from its point of view, the
correlative duty of the other high courts is to obey its commands. The Constitutional
Court regards itself as a guardian of the 1991 Constitution, 655 and also regards its
judgments as part of the 1991 Constitution. 656 Simultaneously, it sees the other two high
courts as its subjects on issues regarding the protection of fundamental rights and the
interpretation of the 1991 Constitution. 657
The Constitutional Court’s claim to authority through the claim of obedience is
incremental. The Constitutional Court not only asserts that to disobey its judgments is to
disobey the 1991 Constitution, 658 but also that the Constitutional Court has the right to
coerce compliance with its judgments. In Popular Bank v. Superior Council of the
Judiciary et al., judgment SU-1158-03 CC, the Constitutional Court examined a case in
which a guardianship trial judge delivered a judgment to replace a decision that, after two
655
See Judgment SU-1184-01 CC.
656
See Judgment T-806-00 CC.
657
See Judgments T-295-98 CC (in which the Constitutional Court claims itself as the supreme and
authorized interpreter of the 1991 Constitution); see also T-678-03 CC (in which the Constitutional Court
claims itself as the authorized interpreter of the 1991 Constitution); T-082-02 CC (in which the
Constitutional Court claims itself as the authorized interpreter of the 1991 Constitution); SU-1158-03 CC
(in which the Constitutional Court calls itself the limiting organ of the constitutional jurisdiction and held
that it has supremacy over ordinary judges when they are acting as guardianship judges); C-590-05 CC (in
which the Constitutional Court claims that it has the duty to unify the interpretation of fundamental rights
and of being the only juridical body that interprets the 1991 Constitution); and T-104-07 CC (in which the
Constitutional Court argues that it is the maximum tribunal of constitutional rights and has the final say in
controversies over them).
658
See Martínez de León v. COS, judgment T-780-02 CC. It could be said that Martínez de León is an
example of the Constitutional Court’s claiming authority, but also a counterexample of the COS’s
disobedience because the COS rendered a new judgment after the Constitutional Court ordered it to do so.
Nonetheless, whether the COS’s implementation was not merely a formal one is not entirely clear. The
Constitutional Court in Martínez de León declared that the form in which the COS implemented its
decision was not a de facto act. And yet, it does not follow from the fact that the judgment could not be
classified as an unsupported judicial decision that there was effective compliance with the Constitutional
Court’s judgment. On the contrary, the fact that the Constitutional Court selected the judgment for review
signifies a certain doubt on the part of the Constitutional Court regarding effective compliance with its
judgment.
233
years, the Supreme Court of Justice had not modified despite the Constitutional Court’s
having ordered such a modification in Méndez Espinosa v. Supreme Court of Justice et
al., judgment T-1306-01. 659 According to Popular Bank, 660 the guardianship judge was
not entitled to deliver a replacement judgment.
In Popular Bank, the Constitutional Court denied guardianship protection since it
found that the behaviour of the trial guardianship judge was reasonable and in accordance
with the 1991 Constitution. According to the Constitutional Court, disobedience of its
decisions amounted to a violation of the fundamental rights protected by the guardianship
judgment. Thus, in a case of disobedience, a guardianship judge—the Constitutional
Court included—could take the necessary measures to protect an unprotected
fundamental right even if this measure amounted to rendering a replacement of a
judgment by the Supreme Court of Justice. One of the main reasons for the Constitutional
Court’s ability to render a replacement judgment in a case of disobedience is its alleged
status as the highest organ of constitutional jurisdiction.
In the Popular Bank judgment, the Constitutional Court not only justified
coercive actions in order to implement its decisions, but in fact it encouraged them. To
the Constitutional Court, a guardianship judge should be active in the enforcement of
judgments and should take all necessary measures to ensure that the fundamental right
under analysis is not violated.
659
The plaintiff, a former public servant, sued his employer because the latter did not recognize his right to
a pension. The SCJ, despite having recognized that the plaintiff had the right to a pension, did not order the
employer to pay the plaintiff because of minor defects in the lawsuit. The Constitutional Court found a
violation of due process in the application of the principle of excessive manifest ritualism. Therefore, the
SCJ was ordered to issue a new judicial decision. Nevertheless, the SCJ, alleging supremacy over the
Constitutional Court, expressly disobeyed the guardianship decision.
660
The Popular Bank, in addition of being the guardianship plaintiff in Popular Bank judgment, was the
defendant in the ordinary procedure that the Constitutional Court had overruled.
234
The Constitutional Court’s claim to have authority over a case and its insistence
on obedience is evidenced three times in the preceding paragraphs. First, the
Constitutional Court backed the action of the guardianship trial judge who took measures
to ensure effective compliance with the Constitutional Court’s orders. Second, as an
obiter dictum, the Constitutional Court validated a hypothetical issuance of the
replacement judgment. Finally, the Constitutional Court reaffirmed that it is the highest
organ of constitutional jurisdiction in Colombia and is supreme over judges acting as
guardianship judges. These judges, as should be clear by now, are simultaneously
ordinary judges in other matters and their judgments could be reviewed eventually by the
Constitutional Court through its review of guardianship actions. 661
The Constitutional Court’s attitude appears to be coercive in the sense that it does
not allow the Supreme Court of Justice any response to its judgment but, on the contrary,
anticipates negation by the Supreme Court of Justice. The Constitutional Court’s
replacement judgments, however, do not amount to implementation of the Constitutional
Court’s decisions but rather create a situation of conflicting plurality in which the
Supreme Court of Justice’s judgment is valid simultaneously with that of the
Constitutional Court.
Besides insistence on compliance with its will to the point of justifying coercion
through the issuing of a direct replacement remedy, the Constitutional Court assumes a
stance similar to that of the Council of State and the Supreme Court of Justice in terms of
possible review of its decisions. The Constitutional Court denies the possibility of
661
In the same coercive tone, the Constitutional Court itself issued the replacement remedy in the cases of
the duty to index the first salary for calculation of a pension, following the SCJ’s lack of implementation of
the Constitutional Court’s Pachón Guevara et al. precedent on the matter. See judgments T-805-04 CC ;
T-815-04 CC; T-013-05 CC ; T-098-05 CC ; T-296-05 CC ; T-016-06 CC ; T-045-07 CC; T-425-07 CC ;
and T-1055-07 CC.
235
guardianship judgments against its decisions, thus preempting review by the other two
high courts, since it does not want to be subject to the judgment of any other court. 662
The Constitutional Court insists that the other high courts are subject to a content-
independent and deliberation-excluding duty to obey its commands. It claims they are
under a content-independent duty to obey because in every case where the Constitutional
Court looks for obedience of its judgments it asks for this obedience based on its alleged
status as the highest court in the system of jurisdiction established by the 1991
Constitution, and not on the appropriateness or correctness of its judgment. The
Constitutional Court claims that the other high courts are under a deliberation-excluding
duty to obey because every time the Constitutional Court asks for obedience it argues that
its guardianship decisions constitute unquestionable res judicata.
Furthermore, no external institution can question the Constitutional Court. Parties
to the guardianship process, including guardianship processes that review judicial
decisions, can only present writs of nullity before the Constitutional Court to question its
decisions. 663 There is no judge outside the Constitutional Court itself who scrutinises the
662
See judgment T-104-07 CC, in which the Constitutional Court knew of a guardianship action brought
against a guardianship judgment that declared a previous guardianship action against a judicial decision
that had granted protection of the fundamental right to due process for the plaintiff null and void. Although
the Constitutional Court had not selected the guardianship action that had declared the initial guardianship
action judgment null and void for review, the Constitutional Court’s remedy was its previous non-selection
of the case. It studied the second guardianship action and declared that the judge had committed a de facto
act when reviewing a guardianship action not selected by the court. For the first judgment, the
Constitutional Court declared that a guardianship action against a guardianship judgment was not valid
because of the character of the Constitutional Court, see judgment SU-1219-01 CC.
663
See e.g. interlocutory decisions A-060-06 CC, A-299-06 CC, and A-183-07 CC. According to
interlocutory decision A-060-06 CC, the declaration of a judgment as null and void is exceptional and
comes only from a flagrant violation of due process. A declaration of nullity is also sought when the court
changes its precedent without proper argumentation, when the judgment has no legal basis, and when
individuals affected by the judgment are not party to the process. The decision of a writ of nullity cannot
become a new judicial instance.
236
validity of what the Constitutional Court decides. 664 Thus, even if it is possible to
question a judgment of the Constitutional Court, the fact that there is only the possibility
of self-review closes off all types of dialogue with other institutions since it is the same
institution which, according to the Constitutional Court’s regulations, can question itself.
5.5 Conclusion
In the light of the concept of the rule of law, and the tension between the formal and
substantive notions of the rule of law, I have shown a correlation between the lack of
recognition of authority and the lack of obedience in cases of SLP. I have also shown
how this correlation is intertwined with the coexistence of competing putative authorities
within the state. Moreover, the coexistence of and tension between the multiple high
courts in Colombia was used to illustrate one element of the lack of obedience following
the lack of recognition of authority: the element of disobedience. The Colombian
example shows how the element of disobedience can be present in different degrees of
intensity.
In the next chapter, I explore accommodation as the other form of lack of
obedience resulting from the lack of recognition of authority within the state. In the
course of this exploration, I analyse the possibility of a dialogue between or among
authorities in a case of SLP. I first present the constitutive elements of dialogue. Then, I
664
Article 49, Decree 2067 of 1991, which regulates Constitutional Court jurisdiction, establishes that
“against constitutional court judgments no judicial action is legal” [translated by the author]. This article
has not been modified or sued against nor, consequentially, declared unconstitutional. Besides the self-
recognition of the Constitutional Court as the highest authority on fundamental rights issues, the statutory
prohibition of review precludes the possibility of an external judge confronting the Constitutional Court.
237
study Canadian doctrine on inter-institutional dialogue between courts and the legislature.
I argue that the way dialogue has been descriptively and prescriptively analysed by
academics does not correspond to a dialogic dynamic. This is because scholars tend to
argue in favour of one of the two institutions involved in the alleged dialogue.
Nevertheless, I show that dialogue between or among authority claiming institutions is in
fact possible. This possibility depends on the official institutions’ voluntary renunciation
of a claim of authority vis-à-vis the other official institutions that participate in the
dialogue during the time the dialogue takes place. 665 For dialogue to be possible, I argue,
the hierarchy implicit in authority claims must be suspended.
665
The claim of authority can still be present vis-à-vis individuals different from the institutions engaged in
dialogue. In this way, state institutions as claimants of authority will not be denaturalized.
238
CHAPTER VI
INTER-INSTITUTIONAL DIALOGUE
6.1 Introduction
In Chapter V, I suggested that, as between state institutions that simultaneously claim
exclusive authority over the same subject matter – institutions locked in a jurisdictional
dispute - there is a relationship between the lack of authority and the lack of obedience.
The jurisdictional dispute arises from a dispute between authority-claimants over the
meaning and significance of the rule of law. I further established that disobedience, as
one of the forms of the lack of obedience, can have several degrees of intensity—as
shown by the interaction among the high courts in Colombia. I now return to the idea of
accommodation between authority-claiming state institutions.
In particular, I explore the possibility of accommodation through inter-
institutional dialogue. My first contention is that dialogue is possible between coexistent
authority-claiming state institutions if their claim of authority is made against private
parties only (i.e., against parties that by their nature are not entitled to exercise public
powers). 666 In contrast, state institutions as dialogue participants must renounce their
claim of authority vis-à-vis other dialogue participants for dialogue to be possible. To
support this contention, I first analyze the constitutive elements of dialogue. Among these
elements, I emphasize the need for equal status of dialogue participants in order for a
successful dialogue to be possible. Then, I contrast the constitutive elements of dialogue
666
Private parties are not entitled to claim public authority. Therefore, they cannot be parties of a dialogue
between authority-claiming state institutions. This does not mean, however, that private parties cannot
speak or lack the ability to engage in deliberation via democratic processes.
239
with those of authority. I conclude that, in a relationship of authority, hierarchy between
the authority-claimant and the subject is an essential feature, and, accordingly, that this
feature renders dialogue impossible.
Based on the impossibility of dialogue within a relationship of authority due to its
inherent hierarchy, I assert that dialogue is not possible when state institutions as
dialogue participants simultaneously claim authority over each other. In light of this, I
argue that what has in Canadian constitutional law been referred to as the dialogue
between courts and the legislature cannot claim to be a dialogue among authorities. This
is because, for Canadian dialogue theorists, either the court or the legislature has
authority over the other institution and, thus, must have the last word in the interaction.
Nonetheless, I argue that the conditions for an inter-institutional dialogue exist within a
constitutional law theory that has not been called dialogue: the theory of coordinate
construction between courts and the legislature. In this theory, the court and the
legislature interpret the constitution but they do not claim the right to command the other
institution in this interpretative task. In other words, they do not claim authority over the
other institution. Due to this equality at the level of constitutional interpretation, the
possibility of dialogue between state institutions exists.
6.2 Elements of Dialogue
Dialogue is a relationship that needs 1) the presence of I and the other, 2) in a reciprocal
engagement that involves 3) mutual listening and response, 4) equal status and 5) the
possibility of dissensus. I explore now each of these elements.
240
6.2.1 Presence of I and the other
Dialogue is a communicative relationship between or among at least two participants. 667
These participants have been denominated by some dialogue theoreticians as I and the
other. 668 Thus, one can say that dialogue is a communicative relationship between I and
the other. The other, who has been defined by dialogue theorists as not-my-I, is someone
different and independent from the I, but of the same essence. 669 Accordingly, the roles
present in dialogue are interchangeable: I and the other occupy both roles in the
dialogue. 670 The participant who perceives himself as I is the other for the person who is
her other in dialogue. 671 Simultaneously, I and the other share one same role: dialogue
participants.
The other is not an external thing that I can appropriate 672 or merely speak of, as if
it were an object—I can only speak to the other. 673 The other is someone independent
from I, but co-present in the world with I. 674 Within this context, despite the other’s
667
See Bohm, supra note 31 at 6. See also Charles Taylor, "The Dialogical Self" in David R. Hiley, James
F. Bohman & Richard Shusterman, eds, The Interpretive Turn (Ithaca and London: Cornell University
Press, 1991) at 130; and Emmanuel Levinas, Otherwise than Being or Beyond Essence, translated by
Alphonso Lingis (The Hague: Martinus Nijhoff Publishers, 1981) at 87 and 119; but see Mikhail Bakhtin,
Problems of Dostoevsky's Poetics, vol. Volume 8, translated by Caryl Emerson (Minneapolis, London:
University of Minnesota Press, 1984) at 184 (arguing that “dialogical relationships can permeate…inside
the individual word, as long as two voices collide within it dialogically.”). Note, however, that Bakhtin
speaks about the presence of at least two voices. Ibid at 184 and 252.
668
Ibid at 252-253. See also Nikulin, supra note 30 at 48 and 51 (explaining why, to him, other voices are
necessary for dialogue to take place and for voices themselves to exist). The other has also been called you.
See generally Buber, I and Thou, supra note 29.
669
See Nikulin, supra note 30 at 99-100.
670
See Buber, I and Thou, supra note 29 at 84.
671
See Nikulin, supra note 30 at 23.
672
Ibid at 99.
673
Ibid at 103.
674
Ibid at 102.
241
independence from the I, dialogue excludes isolation. One cannot utter one’s voice in a
dialogue without the presence of the other. 675
The presence of I and the other is of such relevance for dialogue theorists that
they argue that a person constitutes himself and exists through dialogue with another 676
—alone, a person cannot constitute herself. 677 Dialogue theorists have expressed this idea
in similar condensed expressions such as: to be is to be related; 678 to be is to
communicate dialogically; 679 and the self is dialogical in nature. 680 It is through dialogue
with another that one finds one’s own voice and, simultaneously, the dialogue that
constitutes one’s identity transforms such identity. 681
One could make an argument against the need of I and the other in dialogue from
the perspective of Charles Taylor’s notion of dialogical action. Although Taylor does not
speak of the action of dialogue, he speaks of actions that are dialogical in nature. What
characterizes these dialogical actions is the fact of being performed by a common, non-
individual agent. 682 Participants in the dialogical action have a common understanding
and share the agency of the action. By sharing the agency, they constitute the common
agent—a we. 683 Dimitri Nikulin has asserted that Taylor’s notion of shared agency denies
675
Ibid at 48, 50-52 and 66.
676
See Bakhtin, supra note 667 at 287-288. Accord Buber, I and Thou, supra note 29 at 62; and Martin
Buber, Between Man and Man (Taylor & Francis, 2002), online: <http://lib.myilibrary.com?ID=5328> at
24. See also, Taylor, "The Dialogical Self", supra note 667 at 313 and 314.
677
678
See Bohm, supra note 31 at 40 (citing the definition by Krishnamurti).
679
See Bakhtin, Problems of Dostoevsky's Poetics, supra note 667 at 252 and 287.
680
See Taylor, "The Dialogical Self", supra note 667at 314.
681
682
Taylor, "The Dialogical Self", supra note 667 at 311. See also Nikulin, supra note 30 at 28-29 (speaking
of Taylor’s notion of shared agency).
683
Taylor, "The Dialogical Self", supra note 667 at 311.
242
the individuality of dialogue participants and renders dialogue impossible. 684
Nevertheless, it does not follow from Taylor’s assertion of the participants as constituents
of a common we that they necessarily have to renounce their individual characteristics in
order to share agency. On the contrary, it could be said that, as different parts of one
body, each participant and his particularities constitute the common agent.
Dialogue participants, I and the other, can be natural persons. Nevertheless, for
several dialogue theorists this possibility does not exclude the viability of a dialogue
between or among participants other than natural persons. For example, Bakhtin asserts
that different “intelligent phenomena” can engage in dialogic relationships, as far as they
are expressed in symbolic or semiotic material. Accordingly, dialogue, for Bakhtin, will
be possible among images pertaining to art forms. 685 Likewise, Buber asserts that a plant
or an animal can speak to us and be the other to whom we shall answer. 686
Some authors include institutions among these other types of participants. David
Bohm asserts that it is feasible to hold a dialogue within corporations, a dialogue in
which some of the participants will speak as representatives of the corporation’s
interests. 687 In a similar vein, heads of states can engage in dialogue. 688 When
governmental institutions engage in dialogue through their representatives, these
institutions speak for broader constituencies or organizations. 689
684
Nikulin, supra note 30 at 49 and 143.
685
Bakhtin, supra note 667 at 185. But see Nikulin, supra note 30 at 155, arguing that dialogue is only
possible between persons since, for example, cultures cannot question one another. For Nikulin, in the case
of cultural dialogue that Bakhtin accepts, the expression “dialogue” can only be used metaphorically.
686
Buber, Between Man and Man, supra note 676 at 12.
687
Bohm, supra note 31 at 42-44.
688
Ibid at 45.
689
See The Dialogue Forum Handbook (Vancouver: Simon Fraiser University, 2005) at 3.
243
One could argue that institutions, and in particular state institutions, cannot
engage in dialogue since it would be inaccurate to anthropomorphize them by attributing
to institutions the possibility of interacting in a way similar to the interaction involved in
human relationships. 690 Indeed, it has been argued that, rather than resembling a bilateral
human-like interaction, relationships in institutional spaces are impersonal affairs usually
characterized by a significant imbalance of resources and power. 691 This objection,
however, leaves aside an important resemblance between human beings and institutions
that allows one to attribute human relationship-like features to institutions: namely, that
both institutions and human beings can be seen as persons that have the capacity to act
and to speak.
Hobbes’ conception of persons, and his account of the state’s personhood, helps
to show how public institutions can be persons too. The political historiographer Quentin
Skinner recounts Hobbes’s complex idea of the state as a person. 692 For Hobbes, a person
is someone to whom actions and words can be attributed, whether these are his own
actions and words or those of someone else. Hobbes calls those persons whose words are
considered their own natural persons, and those to whom the words and actions of
someone else are attributed artificial persons. An artificial person acts and speaks through
another person or through a collectivity licensed to act in its name. 693
690
See Robert Leckey, Contextual Subjects (Toronto: University of Toronto Press, 2008) at 238, 242, and
259.
691
Ibid at 239, 243, and 255.
692
Quentin Skinner, "Hobbes and the Purely Artificial Person of the State" (1999) 7:1 The Journal of
Political Philosophy 1 [Skinner, “Hobbes and the Purely Artificial Person”].
693
For an understanding of Hobbes’s notion of the artificial person as one that needs of a representative for
acts and words to be attributed to it, see generally ibid. See also David Copp, "Hobbes on Artificial Persons
and Collective Actions" (1980) 89:4 The Philosophical Review 579 at 583 [Copp, “Hobbes on Artificial
Persons"]. Copp speaks of an artificial person as an agent whose actions are attributed on the basis of the
actions of a different agent. But see David Runciman, "What Kind of Person is Hobbes's State? A response
244
As a result of their capacity to speak for themselves, natural persons can authorize
another person to speak for them. Accordingly, natural persons can also be artificial
persons when someone else represents them. This would be the case, for example, where
an adult individual names a lawyer as her legal representative for certain business. The
lawyer speaks by the authority of the individual and the words of the lawyer are
attributed to the individual. Since the adult individual is able to speak and can name her
representative she is a natural person. But since the lawyer is speaking in her name, the
adult individual is simultaneously an artificial person to whom the words of the lawyer
are attributed.
Nonetheless, not all artificial persons are simultaneously natural persons.
Corporations, for example, are artificial persons but are not natural persons. When
artificial persons are not simultaneously natural persons they cannot speak for themselves
and, thus, cannot directly authorize their representatives to act or speak on their behalf. In
this situation, it is necessary that a third person names the artificial person’s
representative. In the case of a corporation, this third person is typically the Board of
Directors (who themselves are authorized by the shareholders); the Board of Directors
authorizes certain officers to represent the corporation.
Hobbes thus set out two categories of artificial persons: natural artificial persons,
who can voluntarily name a representative, and non-natural persons, who cannot choose
their representative. As examples of the latter, Hobbes mentioned a hospital and a bridge.
Our previous example of the corporation is part of this category. Although words and
actions can be attributed to the corporation as an artificial person, it needs a Board of
to Skinner" (2000) 8:2 The Journal of Political Philosophy 268 at 269 [Runciman, “What Kind of Person”].
Runciman speaks of artificial persons as those who represent a person who cannot act or speak by herself.
245
Directors to name its representatives since the corporation is not simultaneously a natural
person. 694
According to Hobbes, only owners or creators could name a purely artificial
person’s representative. For Hobbes, a state is a person created by a covenant in which
every single member of the population attributes to this new person his or her right to
seek peace and to defend his or her life. Since the state cannot act or speak by itself it
needs a representative in order to act and to speak. But due to its inability to speak for
itself, the state cannot name its own representative. It is the people, as the creator of the
state, that have the right to name the state’s representative. He who represents the state is
the sovereign. The acts and words of the sovereign, as the state’s representative, are the
acts and words of the state. Since the state is capable of being represented and having
actions or words attributed to it, the state is therefore a person. 695
694
Hobbes spoke of persons as natural or artificial (or, for Runciman, representatives), but this was not the
only nominal differentiation Hobbes made. Based on a theatre-related analogy, he also spoke of persons as
authors and actors. When acting as a representative, the person was an actor. When having the words of the
actor attributed to him, the person was an author. Although actors could speak they did not own their
words; their words belonged to the author. The author was he who authorized the actor to be his
representative. The actor was, thus, representative by authority. Moreover, the actor was a holder of the
rights of authority, but just temporarily and due to the vesting of such rights by the author. As for the
author, he owns what is done in his name, and is bound by the actor’s acts, since what is done by authority
is done by commission. See Skinner, supra note 692 at 8-9.
695
Along with Skinner, David Runciman accepts that Hobbes divided persons into categories of natural
and artificial, those able to speak or act by themselves being identified as natural persons. Runciman
disagrees with Skinner, however, regarding the concept of what an artificial person was for Hobbes and
what type of person the state was. According to Runciman, artificial persons are these who represent other
persons. Artificial persons can represent others in two instances, when the person whom they represent is
able to act or speak by itself (i.e. when the person represented is a natural person), or by fiction, when the
words and acts of the representative cannot really be owned by those who are being represented. This
would be the case of the representation of a hospital, a bridge or the state. The fiction lies in the assertion
that the represented are really persons capable of the actions that personal responsibility requires. Although
the state cannot act or speak in its own right, it is a person due to its representation by an artificial person.
Thus, the state is a person due to a fiction. Runciman notes that one of the supportive reasons for his
reading is the fact that Hobbes never used the category of a purely artificial person for the state or for any
other person. See generally Runciman, supra note 693.
246
The state is not the only public institution that Hobbes considers a person. He also
sees institutions created by the state as persons. Hobbes sees the state as containing
bodies politic, among other systems of people. 696 These bodies politic are created by the
sovereign. The sovereign also determines their functions and their scope. 697 Bodies
politic have a representative that speaks and acts on their behalf. 698 And bodies politic
are, simultaneously, representatives of the state. 699 Accordingly, these bodies are persons
that both represent and are represented. 700 In their double status, words and acts are
attributed to bodies politic and, simultaneously, their words and acts are attributed to the
state; when bodies politic represent the state, they speak or act for themselves and for the
state. But since they are artificial persons, they act via a representative, someone else who
speaks or acts on their behalf. David Copp reinforces the idea of bodies politic as persons
when he classifies bodies politic as civil persons, a concept that Hobbes uses in De Cive
to refer to all types of systems of men. 701 These civil persons can have actions attributed
to them and have a representative, as in the case of Hobbesian persons. And Hobbes
attributes to certain civil persons the same characteristics that he attributes to bodies
politic. 702
696
Bodies politics are for Hobbes a species of systems of persons, which Hobbes defined as men joined
together based on common business or interests. (see Leviathan xxii. 1, 148) References to Leviathan are
indicated by “L” and are to chapter, paragraph and page number from the Gaskin edition: J.C.A. Gaskin,
ed, Leviathan (Oxford: Oxford University Press, 1998).
697
See L xxii. 3 and 5, 149.
698
See L xxii. 6, 149. But see Copp. at 597, 599-600 (arguing that Assemblies are their own
representative).
699
See L xxii. 9, 150 and 25, 156.
700
See Copp supra note 693 at 598.
701
Ibid at 596. References to De Cive are indicated by “C” and are to chapter, paragraph and page number
from the Rooks edition: Thomas Hobbes, The English Works of Thomas Hobbes, online: InteLex
Corporation <http://www.library.nlx.com/xtf/view?docId=hobbes/hobbes.00.xml >. ed, Mark C. Rooks
(Charlottesville: InteLex Corporation, 1992).
702
See C v. 10, 89.
247
Hobbes recognizes that the variety of bodies politic is “almost infinite.” The
difference between bodies politic lies in the different affairs they deal with and the
limitations on place, time and number attributed to each of them. 703 Among the bodies
politic, Hobbes mentions the government, which can be exercised by an assembly, a
monarch or a governor, 704 the counsel to the sovereign, 705 and judges. 706 These three
instances of bodies politic are Hobbesian persons and are also, of course, examples of
contemporary state institutions.
The conclusion Hobbes allows us to draw is that contemporary public institutions
are also persons and, thus, have the same attributes as Hobbesian persons. They can have
the words and actions of their representatives attributed to them, and so in this sense can
speak and act.
It is important to note that although bodies politic represent the state, and the
former’s words are attributed to the latter, bodies politic are persons since the words and
acts of their representatives are attributed to them. But the bodies politic’s raison d’être is
to speak as a representative of the state.707 One can think, for example, of the actions of a
prime minister who signs an international treaty. He signs this treaty as the government’s
representative and his actions are attributed to the state. 708 Simultaneously, what the
prime minister does belongs to him as head of the government, a status conveyed upon
703
See L xxii. 16, 152.
704
See L xxii. 16, 152-153.
705
See L xxii. 25, 155-156.
706
See L xxii 17, 153.
707
The possibility of bodies politic being simultaneously representatives and persons is supported in
Runciman’s reading of Hobbes’s classification of persons. For Runciman, natural persons are those who
can act and speak by themselves and artificial persons are those who can speak for others or represent
others. See Runciman, supra note 693 at 289.
708
Even if the treaty requires the approval of other members of the cabinet to come into force, the prime
minister’s signature is an act of the state that is part of the treaty’s ratification.
248
him through the office of prime minister. Once we see that state institutions can speak,
the possibility of a dialogical relationship among them emerges. At the very least, they
can communicate to one another as persons. To see that they can and sometimes do
engage in dialogue, however, requires that we have in view the substantive constitutive
elements of dialogue.
6.2.2 Reciprocal Engagement
The fact that one speaks of I and the other as participants in a dialogue does not mean
that there is indifference between or among dialogue participants. On the contrary,
dialogue participants mutually engage with each other 709 and accept each other in their
individuality. 710 This entangled relationship between I and the other is possible only if the
I has a previous attitude of openness towards the other, an openness that does not seek
mere recognition by the other. 711 Likewise, one who enters into dialogue is open to
change her point of view. 712 Buber goes further and suggests that one does not need to
renounce one’s point of view because in dialogue the notion of point of view no longer
holds. 713
709
See Buber, Between Man and Man, supra note 676 at 9 and 25. See also, Nikulin, supra note 30 at 18-
19, (summarizing Buber’s idea of fully turning towards the other).
710
See Buber, Between Man and Man, supra note 676 at 22.
711
See Levinas, supra note 667 at 119. See also Nikulin, supra note 30 at 23 (referring to Levinas’s
necessary disposition of the I when entering into dialogue).
712
See The Dialogue Forum Handbook, supra note 689 at 1 and 69. See also Bohm, supra note 31 at 7 and
17. See also Nikulin, supra note 30 at 164; and Luc B. Tremblay, "The Legitimacy of Judicial Review: The
limits of Dialogue Between Courts and Legislatures" (2005) 3:4 International Journal of Constitutional
Law 617 at 231[Tremblay, “The Legitimacy of Judicial Review”]. Accordingly, negotiation where one
wants to protect one’s interests is not a necessary part of dialogue. And if negotiation occurs it is just the
preliminary stage of a dialogue. See The Dialogue Forum Handbook, supra note 689 at 5 and 8; see also
Bohm, supra note 31at 18.
713
249
Since a dialogical relationship requires mutual engagement between I and the
other, when more than two individuals are present but there is only a unidirectional
action, dialogue does not exist. Martin Buber has denominated the type of relationship
where one engages the other a relationship with a You. 714 In contrast to the I-You
relationship, he proposes the I-it experience, an action that implies turning away from or
failing to engage the it. 715 In contrast to the I-You interaction, the I-it experience is
unidirectional. The it is just an object, a something, for the I. The it becomes an object
that is subject to his analysis, suitable to be understood and explained by an I. 716
Monologue denies dialogue since there is no mutual engagement with the other.
Monologue allows the presence of more than one individual, but each participant remains
within himself or herself. As Buber explains it, in a monologue two or more people meet,
but the one who speaks does so merely within himself or herself, to himself or herself.
Simultaneously, in a monologue, the person who speaks does not acknowledge the other
as a person with whom to have connection or communication; 717 as a result, one does not
engage the other. 718 The speaker wants only to confirm his or her self-reliance. Moreover,
the speaker sees himself as legitimate and the other as questionable, 719 and not fully
714
See Buber, I and Thou, supra note 29 at 55, 59-60.
715
716
See Buber, I and Thou, supra note 29 at 55. See also Buber, Between Man and Man, supra note 676 at
10-11 and 27-28. Note that, for Buber, the I-it experience can be changed into an I-You relationship when
the individual it enters into a relation rather than into an experience. See Buber, I and Thou, supra note 29
at 84.
717
718
Ibid at 26.
719
Ibid at 23.
250
accepted in his individuality. 720 This is why monologue is a unidirectional action merely
disguised as dialogue. 721
6.2.3 Mutual Listening and Response
When one speaks within a dialogue, one wants to be heard 722 and understood. 723 Rather
than explaining something to the other - which would be a unidirectional activity - the
speaker in a dialogue asks for understanding, which involves the interpretative activity of
the other. 724 Nonetheless, being listened to is not enough for dialogue to take place. As
part of the mutual relationship of dialogue, when one speaks to the other, one demands an
answer 725 or a response 726 from the other. An answer is a reply to what another has said
to me. When one demands a response one cannot predict what this response will be. 727
And one cannot expect a mere “repetition or echolalia” of one’s idea as a response since
that will render dialogue participants unequal. 728
6.2.4 Equal Status
Not all relationships involving more than two individuals can be dialogical. For dialogue
to be possible, all participants must have equal status and equal space to talk. 729 Equality
720
Ibid at 27.
721
Ibid at 22.
722
See Bohm, supra note 31 at 46.
723
724
Ibid at 35-36.
725
See Bakhtin, supra note 667 at 88. Accord, Buber, Between Man and Man, supra note 676 at 12 and 16;
and Nikulin, supra note 30 at 50.
726
See Buber, Between Man and Man, supra note 676 at 20. For Buber, a demand of response is related to
an answer and, simultaneously, to a responsibility for or answering for the one who has spoken. Note,
however, that for Levinas, in the demand for a response, the responsibility for the other is previous to all
form of dialogue. See Levinas, supra note 667 at 111.
727
728
Ibid at 245.
729
See Bohm, supra note 31 at 30.
251
is necessary for participants to engage in the expression of their own voice. 730 Therefore,
as far as hierarchy is present in a relationship between dialogue participants, dialogue
would be impossible. 731 It is worth noting, however, that in a relationship of two
individuals there can be interactions marked by hierarchy and others that are not. This
could be the case of A and B, B being A’s employee. At the workplace, A acts as
hierarchically superior to B. Yet in a non-work-related event, such as a party, the
relationship between A and B is one of equals. In the latter, dialogue would be possible
between A and B while in the former it would not, due to the hierarchy that characterizes
the interaction. This could also be the case of C and D, where D is C’s child. As far as C
interacts with D commanding him to act based on his order because C is his father,
authority and its consequent hierarchy would be present. Nonetheless, one can also
imagine a situation where C is not commanding D to do something, but consulting him
about what type of gift would he like for Christmas. In the former situation, the
hierarchical nature of authority exists and dialogue is not possible, while in the latter the
relationship of father-son is one of equals and dialogue can exist.
David Bohm emphasizes the impossibility of hierarchy within dialogue. For him,
the principle of hierarchy has no place in dialogue. 732 In this vein, for some theorists, one
who aims exclusively to convince or persuade does not allow dialogue, 733 nor does
730
See Nikulin, supra note 30 at 170. See also Tremblay, supra note 712 at 630 and 632.
731
Ibid at 632.
732
Bohm, supra note 31 at 42. Accordingly, for Bohm dialogue can hardly take place within a family
where there is a predetermined hierarchy. Ibid.
733
Ibid at 27. But see Tremblay, supra note 712 at 632, speaking of dialogue as deliberation. And see
Habermas, who does not use the term dialogue but speaks of communicative action where deliberation is
central. For this deliberation to be an ideal discourse, however, the participant’s equal conditions must
exist. Note, also, that dialogue in antiquity implied an agonistic interaction where participants aimed to win.
252
dialogue exist when one attempts to win an argument in a rhetorical fashion. 734 An
exclusive aim to convince and to persuade is an aim to win, and winning implies a
hierarchy between winners and losers. 735 Dialogue is characterized by an agonistic
dynamic of questions and answers. Nonetheless, dialogue participants do not attempt to
win an argument to reinforce their ego. In this sense, although platonic dialogues were
characterized by an agonistic dynamic of questions and answers, Plato opposed the
sophistic dialogue, where participants aimed to win by any means, and preferred the
genuine dialogue. In the former case, one’s intention is to reinforce oneself in one’s own
position and dialogue is an instrument to serve one’s own interests. Moreover, the
sophistic exchange is, by definition, in tension with the other’s position, since it has
winning as its central goal. Thus, participants do not give equal importance to what the
other has to say and are not open to what he or she has to contribute. 736
One of the hierarchical relationships that renders dialogue impossible is
authority. 737 Accordingly, one cannot command the other within dialogue. 738 Thus, if
734
Ibid at 142-143.
735
See Bohm supra note 31 at 27. Note, however, that, for Tremblay, supra note 712 at 231, convincing
does not involve a debate where one has to win or prevail.
736
737
See Bohm, supra note 31 at 42. See also Nikulin, supra note 30 at 216, speaking of dialogue as
anarchical.
738
See Buber, Between Man and Man, supra note 676 at 40. See also Nikulin, supra note 30 at 112-113,
speaking of the impossibility of a normative demand to the other to enter into dialogue. One could argue
that this at most shows that the command is not an instance of dialogue, not that everything said within an
authority relationship cannot count as dialogue. As a supporting example, one can think of the case of two
parties who engage an arbitrator who has instructions to attempt mediation. Only if mediation fails is the
arbitrator supposed to issue an arbitral ruling. During mediation, the parties engage in conversation with the
mediator/arbitrator to try to convince her (and perhaps the other side) of the justice of their claim. In this
stage of the process, dialogue may be possible. Nonetheless, in the moment the individual acts as a
mediator, he cannot, simultaneously, act as an arbitrator since one can act as either or. When the arbitrator
mediates, she is only nominally an arbitrator. One who is acting as a mediator does not act as an authority
vis-à-vis the parties in conflict. If the mediation fails, following the mandate of the parties, the individual
assumes the role of arbitrator, nominally and substantively. As soon as an individual assumes the role of
arbitrator, a relationship of authority exists. And even if parties make their best effort to persuade the
253
conduct evincing a claim of authority exists, hierarchy will be part of the relationship and
dialogue will become impossible.
As part of the prohibition of hierarchy in dialogue, violence is excluded from
dialogue. Violence would imply imposing one’s views on the other, and dialogue is
inconsistent with this possibility. 739 Moreover, violence would render the other silent and,
therefore, absent in the dialogue. 740 Along with violence, monologue, as a denial of the
equal rights of consciousness vis-à-vis truth, excludes dialogue since it implies a
hierarchy of interaction among participants. 741
6.2.5 Dissensus
Several authors argue that dialogue seeks neither a common truth, 742 which would instead
be the objective of monologue, 743 nor an “identical content of faith.” 744 On the contrary,
communication involves uncertainty. 745 In this vein, Nikulin points out that consensus
will bring dialogue to an end, and that during dialogue participants should have the
arbitrator, the arbitrator will be in a superior position and will hold the final word in the resolution of the
issue.
739
See Nikulin, supra note 30 at 174 and 169. See also Jürgen Habermas, The Theory of Communicative
Action, vol 1 Reason and the Rationalization of Society, translated by Thomas McCarthy (Boston: Beacon
Press, 1984) at 287 and 309.
740
See Nikulin, supra note 30 at 110-111 and 113. See also Tremblay, supra note 712 at 632, arguing
against coercion within deliberative dialogue.
741
See Bakhtin, supra note 667 at 285.
742
See Levinas, supra note 667 at 119.
743
See Nikulin, supra note 30 at viii. See also, Tremblay, supra note 712 at 630, speaking of dialogue as a
conversation.
744
745
See Levinas, supra note 667 at 118-120.
254
ability to disagree or to be in dissensus. 746 Additionally, disagreement at the end of
dialogue would allow for a future dialogue to take place. 747
Disagreement within dialogue does not necessarily mean opposition to or
negation of the other. This is because I can disagree with the other but still accept him or
her individuality. It is only when disagreement and the rejection and denial of the equal
value of the other’s position exist simultaneously that the recognition of the other fails
and dialogue becomes impossible. 748
Although numerous authors support the possibility of dialogue without having
agreement as the goal, some dialogue theorists consider that the goal of dialogue is to
find an agreement on the subject matter of dialogue. For instance, David Bohm argues
that dialogue does not aim to win an argument or to share opinions, but rather to enable
one to listen to participants’ opinions, understand the assumptions on which these
opinions are based, and find a common truth. 749 Likewise, Habermas argues for an ideal
discourse, a discourse that has agreement as its goal. 750 Correspondingly, this agreement
must rest on personal conviction and not on external imposition. 751 And although
agreement is the goal of an ideal discourse, participants must be open to questioning and
746
See Nikulin, supra note 30 at 142 and 211-213. Although it is possible to reach agreement via dialogue,
it should be provisional, otherwise dialogue would turn into monologue. Ibid at 122, and 213-214.
747
Ibid at 9 and 52.
748
Ibid at 220-223.
749
See Bohm, supra note 31 at 26. See also Tremblay, supra note 712 at 631, speaking of dialogue as
deliberation. According to Tremblay, dialogue as deliberation aims at reaching agreement, taking decisions
in common, determining which thesis is the best, true or more justified, or at solving problems collectively.
750
See Habermas, supra note 739at 42.
751
Ibid at 287.
255
changing their views and to recognizing their own mistakes during the discourse. 752 This
possibility of mutually criticizing ideas is necessary for consensus to be present.753
6.3 Dialogue in a Relationship of Authority?
I have suggested that in order for dialogue to exist there should be (1) a relationship
between or among at least two participants: I and the other. I have also suggested that in
order for dialogue to exist (2) participants should reciprocally engage with the other.
Moreover, I have stated that, consistent with this mutual engagement with the other, (3)
when one participant speaks to the other, the former demands to be listened to and
requires an answer or a response. This response cannot consist of the repetition of what
the one who spoke has said. In addition, for a dialogue to be possible, (4) all participants
must have equal status and space to talk. Therefore, dialogue is not possible within a
relationship or dynamic structured by hierarchy, notwithstanding that participants in a
hierarchical relationship can sometimes suspend the operation of hierarchy and thereby
engage in dialogue (as in the case of parent-child gift-giving). 754 Finally, I pointed out
that (5) for most dialogue theorists agreement among dialogue participants is not
necessary and dissensus can be the outcome of dialogue.
752
Ibid at 18 and 21.
753
Ibid at 118-119.
754
One can argue that this is in tension with theories of ‘democratic deliberation’ under which people are
expected to engage in dialogue with themselves and public institutions to help settle policy issues.
Nonetheless, this tension does not exist. When public institutions engage in democratic deliberation, a
relationship of authority is suspended. Thus, people’s opinions are on an equal level with those of
institutions. On the contrary, when public institutions act as authorities they need neither to follow the
subjects’ point of view, nor to persuade subjects to act as the institution would like. Different types of
relationship can exist between two individuals in different moments. In the citizens-public institutions case,
a relationship of authority and one of deliberation can exist in different moments.
256
Dialogue theorists have asserted without much argument that a relationship of
authority is incompatible with one of dialogue. I explore further the possibility of having
a relationship of simultaneous authority and dialogue. In light of the subject’s content-
independent and deliberation-excluding duty to obey the authority’s commands, as
discussed in Chapter IV, I contend that a dialogical relationship between authority and
subject is not possible. Guided by this contention, I study the possibility of having
dialogue between or among authority-claiming state institutions. I argue that as far as
authority-claiming state institutions claim authority not only over subjects excluded from
the dialogue, but also over the other authority-claiming institution(s) that participate in
purported dialogue, dialogue is impossible. Nonetheless, I assert that there remains a
possibility of dialogue between authority-claiming state institutions in as far as each of
these state institutions do not claim authority over the other, but only over subjects
excluded from dialogue.
This possibility is admissible if one takes into account that, nowadays, several
state actions are not acts of authority. For example, if the administration is under a duty to
consult and accommodate, a relationship between citizens and state institutions may no
longer be one of authority, at least as it has been traditionally conceived. The
relationships between citizens and the state are merging authority with interactions such
as deliberation. In this vein Green asserts that:
[I]t is clear that the scope of legitimate state action cannot in general
coincide with the limits of justified authority, for the reason that not all
state action is authoritative.
257
...A complete theory of state action will have to comprise both of these
[authoritative and non-authoritative state action] and attempt to integrate
them in a coherent normative framework. 755
If this is the case of a relationship between the state and citizens, it is worth
exploring whether, among state institutions, there can be non-authoritative interactions.
Before exploring the idea of non-authoritative interactions within the state, I will now
compare the necessary elements of dialogue vis-à-vis those of a relationship of authority
to elaborate the idea that the necessary elements of the former cannot exist in the latter.
6.3.1 Authority and Subject v. I and the other
As in dialogue, all authority relationships imply the presence of at least two individuals:
the authority-claimant and the subject. Moreover, in a dialogue, the participants in a
relationship of authority can be natural or legal persons. As established in Chapter V,
authority can be claimed not only over natural persons but also over other institutions. As
an example of the relationship of authority between institutions, in Chapter V I
established that, based on the concept of rule of law, there can be authority relationships
among state institutions.
It could be said that the subject and the authority are different from each other and
could be presented as I and the other. Indeed, each of the authority relationship
participants is unique within the relationship. Moreover, following the definition of the
other as not-my-I, one could say that the authority is not-my-subject for the subject and
the subject is not-my-authority for an authority. In addition, for a relationship of authority
to exist as such, a subject must be present within it. And, as explained in Chapter IV, the
recognition of authority by the subject is necessary for a relationship of authority to exist.
755
See Green, The Authority of the State, supra note 23at 7 [emphasis added].
258
Nonetheless, authority and subject are not of the same nature in as far as they are
not entitled to perform the same type of acts. Their roles are not interchangeable as those
of I and the other in dialogue since, by definition, a subject cannot command and the
authority is not under a duty to obey the subject. 756 Although an authority can speak to a
subject through its commands, rather than speak about or of this subject, the subject, in
the ordinary case, cannot speak back to the authority through commands. In this sense,
the relationship is asymmetrical and unequal.
6.3.2 No mutual Engagement
For dialogue to exist, it is necessary to have a mutual engagement with the other. Leslie
Green argues that authority implies a relationship between the authority-claimant and the
subject(s). As explained in Chapter IV, for Green legitimate authority is a form of triadic
social relation in which there is 1) a person’s claim of authority, 2) a subject’s recognition
of this authority, and 3) a claim to and recognition of authority that involves the fact that
the subject regards the person’s commands as content-independent reasons for action. 757
In this relationship, in addition to the claim of authority presented by one of the
participants, the recognition of the authority-claimant as such by the subject is necessary
for authority to exist. Moreover, someone cannot be the subject of another unless the
latter sees him as her subject. I cannot be someone’s subject if this authority-claimant
does not previously claim me as her subject. Accordingly, there can be neither an
756
This is so notwithstanding that in democracies the authority’s legislative membership is partially
constituted by periodic expressions of popular will.
757
Green, The Authority of the State, supra note 23 at 19, 40 and 42. See also Richard T. De George, "The
Nature and Function of Epistemic Authority" in R. Baine Harris, ed, Authority: A Philosophical Analysis
(Alabama: The University of Alabama Press, 1976) at 77. De George argues that all types of authority are
relational and, as such, in need of a bearer of authority and a subject of authority.
259
authority without the subject’s recognition nor a subject without an authority’s claim over
him.
Nevertheless, this interdependence does not imply a relationship where authority
and subject engage with the other. The way in which the claimant of authority interacts
with the subject is closer to a unidirectional I-it experience than to an I-You relationship.
Since the authority expects the subject’s obedience of its commands, 758 the relevance of
the subject and her opinions for authority does not lay in the recognition of the
importance of the subject by itself. Rather, to authority the relevance of the subject and
her opinions lies in the subject’s confirmation of the commanding role of authority. One
could argue that agents can recognize authorities only when they themselves engage in
interpretation of the norms they are subject to, an interpretive exercise that suggests that
agents play a creative role within legal order. Nonetheless, this will not be true in light of
Raz’s normal justification thesis. According to the normal justification thesis, an
individual has authority if, by acting according to its commands, the subject would be
better off. By second-guessing the authority’s intention through interpretation one could
be acting against what authority intended and, thus, the normal justification element of
authority would fail to obtain. 759
Moreover, one can argue that from Fuller’s account of authority it is not true that
the relevance of the subject for authority lies in the subject’s recognition of authority.
According to Fuller, there must be a reciprocal account of authority, where the
expectation of obedience must be matched by an expectation that the authority will
758
759
See Hurd, supra note 488 at 146-148. In Hurd’s words “inasmuch as [the commands of authority] are
not to be second-guessed precisely because in second-guessing them one will do worse than if one follows
them blindly, the search for authorial intentions appears inconsistent with abiding by the commands of a
practical authority when those commands possess a plain meaning,” Ibid at 148.
260
generally abide by the internal morality of law. 760 Nonetheless, it does not follow from
the fact that authority has to abide by the internal morality of law that authority does not
seek the subject’s confirmation of its authority. And even if part of the internal morality
of law lies in taking into account the subject’s perspective, once the command is issued
an authority expects the subjects to follow it. This is also the case of Raz’s dependence
thesis, in which an authority is supposed to take into account the moral reasons a subject
would have taken into account to make a decision. Yet, once an authority issues her
command, even if mistaken, her determinations are binding. 761
6.3.3 Authority’s Indifference
During a dialogue of mutual engagement I speaks and the other answers and vice versa.
In a relationship of authority, the authority-claimant speaks through command. And, if
authority is recognized by the subject, the weight of the authority’s commands is such
that they are followed by the subject merely because they come from authority. Once
authority has spoken through a command the subject reacts to this command with
obedience.
Although a command could be considered as the way the authority speaks to the
subject, obedience cannot be taken as a dialogic answer coming from the subject. Recall
that a mere “repetition or echolalia” of one’s idea cannot equal an answer. 762 Obedience
cannot be considered an answer or a response since, as explained in Chapter IV, it echoes
in practice what the authority has said because the authority has said it, without the
760
See Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1969) at 23, 39-40, and 61-
62.
761
762
261
subject’s deliberation on the content of the command. Accordingly, in the standard case,
the subject’s point of view regarding what the authority has said, as expressed in the
command, is irrelevant to the legitimacy of authority and to the subject herself. 763
Nevertheless, dialogue is not absolutely excluded from an authority relationship
before an authority issues a command. This will be the case in Raz’s theory of authority
and its dependence thesis. In light of the dependence thesis, a command can be seen as an
answer to the subject’s point of view. Recall that, according to the dependence thesis,
authority has to take into account the same interest the subject would have taken into
account if making the decision on his own. 764 In this way, it could be said, the subject’s
point of view would have been listened to by authority and the command would contain
the response of authority to the subject’s interests. Nonetheless, dialogue will end when
the command is issued. This is because the way in which these interests are taken into
consideration by the authority cannot be objected to by the subject once the command is
issued. Along with the normal justification thesis, Raz argues that commands are pre-
emptive reasons. A pre-emptive reason is one that, after the authority takes into account
the reasons that would have applied to the subject, excludes or replaces these reasons as
reasons for action. 765 Therefore, once the command is issued, the subject’s point of view
is not listened to by the authority, and obedience does not equal an answer.
763
As mentioned in Chapter IV, this does not mean that the realm of authority is unlimited or that authority
does not have substantive limits. Moreover, this does not mean that there is an absolute duty to obey. See
Green, "Who Believes in Political Obligation?", supra note 533 at 309. See also Green, The Authority of
the State, supra note 23 at 50 and 51.
764
Raz, The Morality of Freedom, supra note 20 at 42, 46 and 59.
765
Ibid at 42, 46 and 59.
262
6.3.4 Unequal Status
In dialogue, all participants must enjoy equal status. Equality between the authority and
the subject is not possible since both participants have different rights vis-à-vis the other.
The authority-claimant can command the subject, but not vice versa. Moreover, the equal
validity of all participants’ points of view does not hold because, as explained before, the
subject’s opinion of the authority’s command is in principle irrelevant, at the moment of
command, due to the deliberation-excluding nature of obedience. Assuming that the
authority is acting within its jurisdiction, if the subject questions a command he is, by
hypothesis, already outside a relationship of authority because a lack of obedience occurs.
And, as explained in Chapter IV, the lack of recognition of authority follows from the
lack of obedience, and recognition is necessary for a relationship of authority to exist. 766
One can say that since the authority-claimant needs the subject’s recognition of its
authority in order to hold authority, there is no clear hierarchy between subject and
authority. Nonetheless, the orientational metaphors used to refer to the exercise of
authority over a subject are a sign of unequal status and of an implicit hierarchy in the
relationship of authority. 767 While talking about a relationship of authority, one uses
expressions such as a subject is under someone’s authority or under the command of
someone. This spatial metaphor is complemented by the fact that one speaks of the
exercise of authority over some individuals. From this orientational linguistic relationship
766
An argument can be made that a simple refusal to recognize does not necessarily end an authority
relationship. This is because, the argument goes, an individual cannot escape the commander’s dictate if the
commander is able to coerce him. Nonetheless, this argument ignores that once the command is
implemented through coercion, a relationship of authority disappears. See Roland Pennock, "Coercion: An
Overview" in Roland Pennock & John W. Chapman, eds, Coercion (Chicago, New York: Aldine. Atherton
Inc., 1972) at 2.
767
For an explanation of the idea of the orientational metaphor and its relevance in discourse see Lakoff &
Johnson, supra note 38 at 14-19.
263
one can infer that there is a good sense in which the authority-claimant is above the
subject. Therefore, a hierarchy between subject and authority-claimant exists.
As part of the equal status of dialogue participants, dialogue does not allow the
imposition of one’s point of view on the other. 768 Accordingly, within dialogue, by
hypothesis, one cannot coerce another to think in identical terms or to adopt one’s point
of view. Coercion is the action that restrains someone or compels someone to act against
his will and according to the will of the coercer. 769 The means to coerce are the use or
threat of use of deprivations, sanctions or physical harm. 770
Coercion and authority are not correlative concepts. 771 First, one may legitimately
coerce another without having authority over him, as in the case of an army acting against
enemy soldiers during times of war. 772 Second, one can succeed in the implementation of
one’s will without the need for coercion. If one recognizes an authority-claimant as an
authority, obedience will usually follow. 773 A regime based on coercion is at risk. Rather
768
See Nikulin, supra note at 174. See also Habermas, supra note 739 at 287.
769
See Michael A. Weinstein, "Coercion, Space and the Modes of Human Domination" in Roland Pennock
& John W. Chapman, eds, Coercion (Chicago, New York: Aldine. Atherton, 1972) at 65. Weinstein refers,
in particular, to the coercion of use of space according to someone’s will.
770
See Alan P. Wertheimer, "Political Coercion and Political Obligation" in Roland Pennock & John W.
Chapman, eds, Coercion (Chicago, New York: Aldine. Atherton Inc., 1972) at 222. Note, however, that for
Michael D. Bayles although one can coerce by using physical force or threats, the use of sanctions, is not
part of coercion, but the consequence of the failure of coercion. The only occasion when sanctions could go
along with coercion is when the sanction is imposed until the person acts as desired by the coercer. See
Michael D. Bayles, "A Concept of Coercion" in Roland Pennock & John W. Chapman, eds, Coercion
(Chicago, New York: Aldine. Atherton, 1972) at 17 and 18.
771
See Pennock, supra note 766 at 2. Nonetheless, authority and coercion have some common elements.
For example, in both cases, person X intends that person Y does A and if person Y regards X as an
authority, Y will, in principle, do as required For the elements of coercion see, Bayles, supra note 770 at
23-24.
772
See Green, The Authority of the State, supra note 23 at 72-73 and 243. See also Timo Airaksinen,
"Coercion, deterrence, and authority" (1984) 17:2 Theory and Decision 105 at 115.
773
Ibid at 113. See also Green, The Authority of the State, supra note 23 at 73, arguing that voluntary
acceptance of authority is one of its necessary elements.
264
than coercion, an authority-claimant needs the subject’s internal attitude of acceptance of
its claims in order to endure, 774 which renders coercion unnecessary in the standard case.
Furthermore, coercion is not a manifestation of authority since the choice of
acting in accordance to someone’s will based on coercion is the product of a cost-benefit
analysis. The person who acts under coercion makes the choice of acting this way
because the cost involved in the materialization of the threat may be higher than the
benefit of refusing compliance. 775 As Green argues, a threat does not replace the agent’s
reasoning regarding the merits of the case, but rather changes his judgment of those
merits. 776
Nonetheless, an authority-claimant may use coercion to secure the efficacy of its
will. Coercion enters into the scenario when mere authoritative guidance has failed. 777
This background use of coercion puts the subject in a position of subordination to
authority’s will. Violence as one of the possible means of coercion will render the subject
silent and absent by imposing the will of the authority—and silencing is not valid in
dialogue. 778 Even if the use of force is legitimate, the surrendering of the subject will not
be free and, thus, is contrary to dialogue.
774
Ibid at 73, 74 and 75.
775
Ibid at 151-152. See also Bayles, supra note 770 at 24, arguing that in cases of coercion, Y acts as
required due to the threat X makes in case Y acts otherwise as required. But see Airaksinen, supra note 772
at 113 and 114 arguing that when one calculates the cost of not following the authority-claimant’s will one
is still within the realm of authority. It is only when there is a high degree of resistance or “stubborn
resistance” that authority does not exist.
776
777
Ibid at 75.
778
See Nikulin, supra note 30 at 110-111 and 113. See also Green, The Authority of the State, supra note
23 at 632. The use of violence may be close to what Philippe Pettit calls domination. For Pettit, on the one
hand, domination, as the capacity for arbitrary interference, should not exist in a republican government.
See Pettit, supra note 363 at 63, 64 and 79. On the other hand, in a republic there is room for intervention
that does not involve arbitrariness. Ibid at 23. One can say that when domination is not present coercion as
interference will not preclude dialogue. Yet, even if the authority-subject relationship is one of non-
domination, there is still no dialogue because the subject is expected to act according to the will of the
265
6.3.5 Disagreement
I have stated that several authors argue for the presence of dissensus or disagreement as a
possible outcome of dialogue. In Chapter IV, I concluded that from a lack of obedience
follows a lack of recognition of authority and from a lack of recognition of authority
follows a lack of authority. As discussed in Chapter IV, one way obedience can fail to
materialize is through disobedience. Disobedience implies a refusal to follow an
authority’s commands. By refusing to follow what an authority has commanded, one is
implicitly disagreeing with the authority-claimant. 779 This implicit disagreement, then,
denotes the absence of an authority relationship.
Given that disagreement is a common outcome of dialogue, since authority does
not allow this type of disagreement it cannot involve dialogue. It has been stated that,
although for the majority of dialogue theorists dialogue can result in disagreement as its
outcome, some authors argue that dialogue must finish in consensus. Obedience of an
authority or even compliance with an authority’s command could be understood as a
form of consensus. Indeed, in these cases there is coincidence between what one
authority wants and the conduct a subject performs. Nonetheless, if one recalls
Habermas’s conditions for the ideal discourse that must result in consensus, one will not
find these conditions of equal participation fulfilled in authority. In an ideal discourse,
agreement must rest on personal conviction and not on external imposition, 780 and these
conditions are absent from authority.
authority; i.e., from the perspective of dialogue it is not relevant that legitimate authority will not exercise
its coercive powers non-arbitrarily.
779
This is true unless the act of not following authority’s commands comes from force majeure instead of
from the subject’s free will.
780
See Habermas, supra note 739 at 287.
266
6.4 The Possibility of Dialogue Between Authorities
I have argued that when an authority-claimant issues commands, dialogue between it and
the subject of those commands is not possible because hierarchy is anathema to dialogue.
I now contend that it is not possible to have a dialogue when both participants claim
authority over each other. If both participants in a relationship of dialogue simultaneously
claim authority over each other, neither would regard the other as an equal, but rather as a
potential subject who must follow its directives. Nonetheless, we shall see that authority-
claiming state institutions do not necessarily have to claim authority over each other.
They can claim it exclusively over third-parties. In these circumstances, dialogue
between authorities is possible.
A relationship among authorities who do not claim authority over each other is
one of equals. In this case, claimants of authority hold a hierarchical relationship vis-à-vis
individuals who are not involved in the relationship of dialogue, but not vis-à-vis the
other claimant of authority. Think, for example, about the equal position states hold vis-à-
vis each other in the UN. Although states are authorities in front of their country’s
population, in a General Assembly meeting, in principle, they neither claim authority
over other states nor see any other state as their authority.
Nonetheless, if being A a dialogue participant, A’s claim of authority excludes any
other claim of authority, other dialogue participants will not be recognized as equals
since, by definition, they cannot hold authority over the same subjects that A does. For
example, Canada claims authority over its population and does not recognize that the
United States can simultaneously exercise this authority. But a claim of authority does
not necessarily have to be exclusive. Think about the equal footing on which parents
267
stand vis-à-vis each other in their shared authority over their children. If this is the case,
authority-claimants will regard each other as equals. 781 And they could have a dialogue
over the best way to command their subjects, for instance.
6.4.1 A Revision of the Canadian “Dialogue” Between Courts and Legislatures
Some Canadian constitutional scholars suggest that dialogue between authorities is
possible and provide the relationship between the courts and the legislature in Canada as
an example. Nevertheless, I contend that the sort of relationship between authorities that
has been described as a dialogue is not, in fact, dialogical. 782 This is because
constitutional law scholars who have applied the dialogue metaphor tend to favour one of
the two institutions as hierarchically superior to the other and as having the final word on
constitutional interpretation. As explained above, equal status of dialogue participants is
required and this equal status is lacking in the discourse of most constitutional law
dialogue theorists. As Roach points out, dialogue theory has been criticized by defenders
of courts and legislatures alike for giving one or the other institution too much authority
to settle constitutional issues definitively. 783
To support my argument in this section, I examine the work of leading Canadian
constitutional law scholars and consider whether they support judicial or parliamentary
781
This will be the case as far as there are not other reasons why one of the parties regards the other as
unequal (i.e. xenophobia, racism, etc).
782
My contention is not new. In one of their most recent articles on the dialogue metaphor Hogg, Bushell
Thorton and Wright have accepted to put into question the use of this metaphor since the relationship they
describe may not fit within what a dialogue is. See Peter W. Hogg, Allison A. Bushell Thorton & Wade K.
Wright, " Charter Dialogue Revisited - or Much Ado about Metaphors" (2007) 45:1 Osgoode Hall Law
Journal 1 at 26 [Hogg & Bushell, “Charter Dialogue Revisited”].
783
Roach, "Sharpening the Dialogue Debate", supra note 35 at 191.
268
supremacy in their discourse about dialogue.784 The Canadian trend of inter-institutional
dialogue began with Hogg and Bushell. These authors argue that dialogue between the
courts and the legislature exists if a judicial decision is open to legislative sequels such as
modification, reversal or avoidance. 785 Sequels are a response by the legislature to the
courts’ decisions—decisions that are also taken to be part of the dialogue. 786 In addition,
dialogue is said to exist when there is legislative agreement with a court’s decision, 787
which can consist of a simple lack of legislative action following a judgment. The
absence of a legislative response, in some cases, may be taken as legislative dialogue
with the court. 788
Despite their descriptive and apparently neutral use of the idea of dialogue, Hogg
and Bushell are biased towards judicial preeminence vis-à-vis the legislature. For
instance, they question whether a dialogue could take place in a situation where the
Supreme Court is “clearly subordinate” to the legislature. 789 Also, they accept the
supremacy clause 790 and the legislature’s consequent duty to obey the Supreme Court’s
784
The notion of dialogue between authorities is not exclusive to Canadian constitutional law. American
constitutional law scholar Alexander Bickel was the first one to envision the relationship between the
United States Supreme Court and the other governmental institutions as a “colloquy.” See Alexander M.
Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Indianapolis: Bobbs-
Merrill, 1962) at 71, 152, 153, 156 and 179. Nonetheless, for Bickel, in this colloquium the Supreme Court
is the final interpreter of constitutional principles. And it is because of its principled character that the
Supreme Court’s decisions are binding. Nevertheless, Bickel accepts that the Supreme Court’s principled
interpretation is shaped conversationally. Ibid at 203 and 244.
785
Hogg & Bushell, "The Charter Dialogue Between Courts and Legislatures", supra note 32 at 79, 80 and
82.
786
Ibid at 80 and 98.
787
Ibid at 98.
788
Ibid at 100.
789
Ibid at 79.
790
Section 52 of the Constitution Act of 1982 states that the Constitution of Canada is the “supreme law of
Canada.”
269
judgments. 791 Moreover, Hogg and Thorton assert that they did not want the courts to
assume a judicial monopoly on correct interpretation. They only intended to say that,
right or wrong, judicial interpretation rarely precludes a legislative response. 792 By saying
that the courts do not have a monopoly on “correct” interpretation, the authors do not
deny that the court has a monopoly on constitutional interpretation. By asserting that the
legislature can “respond” to the Supreme Court the authors remain silent on the
possibility that the legislature can have a binding interpretation of the constitution.
Therefore, it could be said that a the authors the Supreme Court has a monopoly on
constitutionally binding interpretation regardless of whether it is right or wrong.
The authors, along with Wright, reiterated their position regarding the binding
character of judicial interpretation in a recent piece on the dialogue metaphor. In this
piece, Hogg, Thorton and Wright recognize that only judicial interpretation of the
Canadian Charter is authoritative and is final in its role, as is the case in all countries with
a written bill of rights. 793
For the authors, the preeminence of the courts over the legislature is exemplified
in a further manner. Under the Hogg, Thorton and Wright understanding of the dialogue
metaphor, when the Supreme Court studies a piece of replacement legislation in a second
look case, the Supreme Court should not allow the legislature to respond by enacting a
law that does not follow the Supreme Court’s judgment. If the legislature does not want
791
See Hogg & Bushell, "The Charter Dialogue ", supra note 32 at 79.
792
See Peter W. Hogg & Allison A. Thorton, "Reply to "Six Degrees of Dialogue"" (1999) 37:3 Osgoode
Hall Law Journal 529 at 535 [Hogg & Thorton, “Reply to ‘Six Degrees’”]. In the same vein, see Hogg,
Thorton & Wright, " Charter Dialogue Revisited ", supra note 782 at 32. The authors accept that it is
possible for the legislature to contradict judicial interpretation of the constitution, but that while doing this
the legislature would be acting against the constitution. Ibid at 33.
793
See Hogg, Thorton & Wright, " Charter Dialogue Revisited", supra note 782 at 31.
270
to follow the Supreme Court’s judgment it has to use the notwithstanding clause. 794
Hogg, Thorton and Wright are so attached to the superior hierarchy of the Supreme Court
in the interpretation of the Canadian Charter that they have shown a willingness to
renounce the use of the dialogue metaphor if it is used to imply or recognize equal status
of the institutions in question. 795
Siding with Hogg, Thorton and Wright, Kent Roach rejects the theory of
coordinate construction in which the legislature is in equal interpretative standing with
the courts. 796 Thus, he argues in favour of a preeminent judicial role over the legislature
in the interpretation of the Canadian Charter. Roach distrusts the legislature as an
eventually binding interpreter of the Canadian Constitution. For him, first, it is not clear
that legislatures “want” to assume this interpretative role. 797 Second, if they assume this
role they may ignore the rights of the people who have no right to vote, 798 or the rights of
the “truly unpopular,” who are usually not protected by majority vote,799 and there is a
risk that legislatures will undervalue the damage imposed by a violation of a Canadian
Charter right. 800 The main role Roach attributes to the possibility of dialogic interaction is
that it may lead to better acceptance of the Supreme Court’s ruling by the legislature—an
alternative that does not exist in regimes where the legislature has no room for
response. 801
794
Ibid at 49 and 50.
795
Ibid at 31.
796
The concept of coordinate construction will be explained below.
797
See Kent Roach, "Dialogic Judical Review and its Critics" (2004) 23:2 Supreme Court Law Review 49
at 92 [Roach, “Dialogic Judicial Review”].
798
Ibid at 93.
799
See Roach, "Sharpening the Dialogue Debate", supra note 35 at 172-173.
800
See Roach, "Dialogic Judicial Review", supra note 797 at 96.
801
Ibid at 99 and 103.
271
Roach sees the possibility of override as a space for continuing dialogue that does
not support either judicial or legislative supremacy. 802 For Roach, the five-year period
that the legislature has before the effects of the override expire is an opportunity for the
legislature to reflect on the implications of its disagreement with the Supreme Court. 803
One could say that, for Roach, courts are then of equal status to the legislature.
Nonetheless, it is clear that Roach, consistent with his rejection of coordinate
construction, attributes the role of interpreting the Constitution and protecting minorities
to courts. For Roach, the use of the override will never reflect the protection of
minorities’ rights, but rather a legislative opposition to judicial rulings and thus
opposition to the protection of minorities. 804 Likewise, in the Supreme Court’s
hypothetical act of striking down reply legislation, 805 Roach identifies a positive over-
enforcement of the Canadian Charter that protects, rather than undermines, democracy. 806
Moreover, Roach argues that valid reply legislation must respect the Supreme Court’s
previous decisions. Otherwise, Parliament should use the notwithstanding clause if it is
available. 807 This position implies that the legislature, while enacting response
legislation, is not well-equipped or designed to do a better job of interpreting the
Canadian Charter than the Supreme Court.
802
Kent Roach, "Dialogue or defiance: Legislative reversals of Supreme Court decisions in Canada and the
United States" (2006) 4:2 International Journal of Comparative Law 347 at 370 [Roach, “Dialogue or
Defiance”].
803
Ibid at 367.
804
Kent Roach, "A Dialogue About Principle and a Principled Dialogue: Justice Iacobucci's Substantive
Approach to Dialogue" (2007):57 University of Toronto Law Journal 449-477 at 465 [Roach, “A Dialogue
About Principle”].
805
Reply legislation is legislation enacted after a court judgment that is not an override of the judicial
decision.
806
Roach, "A Dialogue About Principle", supra note 804 at 466.
807
Roach, "Sharpening the Dialogue Debate", supra note 35 at 467-468.
272
Mary Liston is a supporter of the Supreme Court having the last word in
constitutional interpretation, although she argues that the Supreme Court is an equal of
Parliament. Liston argues that the Canadian interaction between courts and the legislature
is one of dialogue, a dialogue based on an ethos of justification. This dialogue includes a
recognition of reasonable disagreement and of reasonable pluralism, and consequently an
absence of a monopoly on the determination of Canadian values by any branch. 808 The
ethos of justification present in the dialogic dynamic implies that deference is due among
dialogue participants only if the activity of the branch to which deference is given is
justified within a framework of reasonable disagreement. 809 State institutions enter into
dialogue as “respectful equals” and they are supposed to gain the deference of the other
institution through justification. 810 Persuasion may result from justification. 811 In the
process of justification, an institution may change its viewpoint and, as a result of this
change, institutions can come to agreement. 812
Liston argues that the Supreme Court is an equal of Parliament. Yet, in defence of
the ideal balance of democracy and the rule of law, she attributes a slightly higher role in
the Canadian constitutional hierarchy to the Supreme Court. She notes that “it is the
particular role of the judiciary within this democratic rule of law to resist all forms of
arbitrariness when public law cases present them for scrutiny.” 813 Thus, if the Supreme
Court perceives a statute as arbitrary, the Supreme Court must resist it. She adds that it is
808
Liston, supra note 34 at 7. To the dialogic dynamic, Liston adds the Government and the interaction
between citizens and the state. Ibid at 122.
809
Ibid at 55-56.
810
Ibid at introduction at 7, and 301.
811
Ibid at 16.
812
Ibid at 96, 129-130.
813
Ibid at 75.
273
the role of the courts to make Parliament accountable for the constraints of the rule of
law. 814 In a similar vein, Liston is aware of the fact that, in the Canadian context, when
persuasion does not follow justification, the courts’ language of counsel, which aims to
persuade, can become that of a command. 815 Nevertheless, for Liston the closure
provided by the courts is provisional rather than definitive. 816
From defenders of the Supreme Court within dialogue, one moves to supporters
of democracy embodied in Parliamentary activity. Christopher Manfredi and James Kelly
argue that the dialogue metaphor, as constructed by Hogg and Bushell, is problematic and
does not respond to the democracy-based objections to judicial review. 817 Among all the
possible interactions between courts and the legislature, Manfredi and Kelly consider that
there is positive or genuine dialogue when, after reflecting on a court ruling, the
legislature amends portions of a law in order to advance statutes that are in conformity
with the Canadian Charter. On the contrary, no genuine dialogue takes place in four
situations. First, when the legislature amends statutes prior to a court ruling—probably
out of fear that certain provisions will be struck down. 818 Second, when the judiciary
amends the laws by itself. Third, when there is no legislative sequel. 819 And fourth, when
there is compliance with judicial decisions by repealing a complete act or the section of
814
Ibid at 115.
815
Ibid at 137-138 and 171-174 and 337.
816
Ibid at 125. See also, ibid. at 129-130, arguing that the courts do not hold exclusive opening or closing
status.
817
Christopher P. Manfredi & James B. Kelly, "Six Degrees of Dialogue: A Response to Hogg and
Bushell" (1999) 37:3 Osgoode Hall Law Journal 513 at 515 [Manfredi & Kelly, “Six Degrees of
Dialogue”].
818
Ibid at 523.
819
Ibid at 520.
274
an act declared unconstitutional. 820 These types of reactions mean talking with the courts
and accepting that they have a hierarchically superior position that restricts genuine
dialogue. 821 To summarize, there is no real dialogue when the opinion of the Supreme
Court prevails either by action of the Supreme Court or by omission of legislative action.
Therefore, in Manfredi and Kelly’s concept of dialogue, a Parliamentary last word is
necessary for dialogue to take place.
For a genuine dialogue to exist, Manfredi and Kelly suggest that the legislature
must have authority, equal to the Supreme Court, to interpret the constitution and to
assert its interpretation. 822 Although Manfredi and Kelly reject the Supreme Court’s
superior hierarchy in the dialogue, and one could think that they conceive of the dialogue
metaphor as a dialogue among equals, there is a tendency to prefer legislative decisions
over the court’s will. To Manfredi, the ideal condition of constitutional interpretation is
that of coordinate interpretative authority, a shared authority that follows from Section 33
of the Canadian Charter. If there is automatic deference to what the court would decide,
there would be no real dialogue about what rights mean, but rather a monopoly by one
political institution (i.e. by the court). 823 Manfredi gets closer to what a genuine dialogue
would require by accepting that the two institutions, the court and the legislature, talk
about the same subject matter: constitutional interpretation. And yet, reliance on Section
33 as justification for legislative interpretative authority gives Parliament the final say in
820
Ibid at 521.
821
Ibid at 521.
822
Ibid at 524.
823
Christopher P. Manfredi, "The Day the Dialogue Died: A Commentary on Sauvé v. Canada" (2007) 45:1
Osgoode Hall Law Journal 105 at 123 [Manfredi, “The Day the Dialogue Died”]. This is why Manfredi
rejects Justice Iacobucci’s position in Sauvé, where Justice Iacobucci argued that if a legislative response
does not follow the judicial decision’s constitutional requirements it does not constitute dialogue. See
Christopher P. Manfredi, "Life of a Metaphor: Dialogue at the Supreme Court, 1998-2003" (2004) 23 The
Supreme Court Law Review 105 at 120 and 121[Manfredi, “Life of a Metaphor”].
275
the determination of constitutional meaning. The problem of locating the possibility of
equal interpretative authority within the context of Section 33 is that, in this case, the
dialogue results in the legislature having the final say in constitutional interpretation.
Accordingly, the Supreme Court cannot respond to the legislature or look for a
consensus. Thus, in Manfredi’s model, there is no equality of authority when it comes to
the final say in constitutional matters.
With the idea of building a continuing dialogue, Manfredi asserts that when
judicial findings of unconstitutionality do not involve a statute but instead a common law
norm, Parliament should not use Section 33 to reverse the Supreme Court’s decision.
This is because using Section 33 would preclude judicial review of the statute enacted as
a response to the Supreme Court. 824 Note, however, that Manfredi does not deny the use
of Section 33 once a regular statute has overridden the court’s decision, and the Supreme
Court has found such a statute contrary to the Canadian Charter.
6.4.2 The Theory of Coordinate Construction
After reviewing the work of the commentators who have developed the Canadian
dialogue theory, one might think that dialogue between authorities - in particular between
courts and the legislature - is not possible. The debate in the literature is essentially over
which institution has the final say. Since either the courts or the legislature must have the
final say, either one or the other enjoys a position of hierarchical superiority over the
other, and so dialogue is impossible. Indeed, some authors have already stated that the
dialogue metaphor is inapplicable in Canada and beyond. Luc Tremblay argues that the
principle of judicial responsibility implies that judges have the final say and cannot
824
Ibid at 123.
276
engage in a dialogic dynamic. 825 More recently, Stephen Gardbaum argued that dialogue,
understood as possible in jurisdictions that either allows the override or which have a
constitutional rights' limitation clause, is an overinclusive concept and does not precisely
determine the difference between the Commonwealth judicial review of legislation and
that of countries with judicial supremacy. 826 Beyond Canada, Aileen Kavanagh disputes
the use of the dialogue metaphor to describe the relationship between courts and
Parliament promoted by the Human Rights Act in the United Kingdom. According to
Kavanagh, the relationship between the three branches of power is not one of total
separation but rather one of interaction and interdependence. Nonetheless, when the
courts use Section 4 of the Human Rights Act, 827 they "are not simply 'throwing the ball
back into Parliament's court' - they are pronouncing on what the law requires." 828
Notwithstanding these arguments, I contend that a hierarchical relationship among
state powers is not necessary, and so dialogue is possible. I base this contention on the
theory of coordinate construction, according to which all branches of power share
constitutional judgment and none is in a hierarchically superior position to the other. In a
shared normative context such as this, dialogue is possible.
Canadian constitutionalist Brian Slattery supports a coordinate model. This
model consists of the equal responsibility of all branches of government to develop the
Canadian Charter's mandate and the reciprocal character of their roles. The model is
825
Tremblay, supra note 712 at 636.
826
Stephen Gardbaum, "Reassessing the new Commonwealth model of constitutionalism" (2010) 8:2
I.CON 167 at 181-182.
827
Section 4 of the Human Rights Act of 1998 allows the courts to declare the incompatibility of a statute
with the Human Rights Act.
828
Aileen Kavanagh, Constitutional Review Under the UK Human Rights Act (Cambridge, New York:
Cambridge University Press, 2009) at 410. And see ibid at 324, where she argues that although Parliament
may have the final say on how to implement Convention rights it does not have the final word on what the
Convention mandates in response to a Human Rights Act challenge.
277
coordinate since a harmonious interaction, rather than conflicts among branches, is what
most often characterizes their work. 829 The way in which branches share the task of
developing the Canadian Charter's mandates is through first and second order duties. As
first order duties, the three branches have the obligation to act according to the Canadian
Charter, independently of whether their actions would be subject to further review. As a
consequence, the courts would not enjoy a monopoly over constitutional interpretation at
the first-order stage. 830 The second-order duty refers to the courts’ jurisdiction to review
the other branches’ acts in light of the Canadian Charter.831 When second-order duties are
exercised, their role is merely declarative. Accordingly, the Supreme Court can declare
Parliament's responsibilities according to the Canadian Charter, but the form and extent
of implementation of such responsibilities is a Parliamentary matter. 832 Parliament's first
order-duty to interpret and apply the Canadian Charter in the exercise of its functions
exists even when Parliament decides to apply the notwithstanding clause. In this sense,
Parliament will not disregard the proper interpretation of the Canadian Charter in the
application of Section 33 and will have the responsibility of determining whether the
application of Section 33 causes a violation of the Canadian Charter as interpreted by
Parliament. 833 In the Canadian Charter, Slattery sees a mandate to develop fundamental
rights and to contribute to the common good. And it is by seeing the Canadian Charter as
829
Brian Slattery, "A Theory of the Charter" (1987) 25:4 Osgoode Hall Law Journal 701 at 707.
830
Ibid at 720.
831
Ibid at 707-708.
832
Ibid at 718.
833
Ibid at 739, 741 and 743.
278
an ensemble of these features that, he argues, leads to the conclusion that its meaning
should also be determined by governmental bodies. 834
Brian Slattery’s account informs the relational theory developed by Janet
Hiebert. 835 In her relational theory of constitutional law, each institution has a different
relation vis-à-vis the Canadian Charter and a different approach to it. 836 Based on the
different relations institutions have with the Canadian Charter, Hiebert argues for the
possibility of Parliament and the Supreme Court making separate constitutional
judgments. 837 These judgments should be rendered under the commitment to a series of
constitutional values, as interpreted by each institution. Hiebert attributes a responsibility
for each institution to act upon its own convictions and respect Canadian Charter values
with its actions, even if its actions are confronted with another institution’s judgment.
Each institution must be satisfied itself, through a sincere effort, about the respect of the
Canadian Charter found in its judgment. 838 Moreover, although courts can strike down
legislation, the judgment or opinion of each of the branches is not superior to that of the
other branches. And each institution should respect the diverse judgments of the other. 839
Accordingly, this interaction does not imply that one institution acts to correct the
mistaken decisions of the others, 840 but merely that each institution expresses its
judgment in different forms.
834
Ibid at 747.
835
Janet Hiebert, Charter Conflicts: What is Parliament's Role? (Montreal: McGill-Queen's University
Press, 2002) at 44 [Hiebert, Charter Conflicts].
836
Ibid at 51 and 72.
837
Hiebert takes the concept of judgment in the ordinary sense of the word, as an opinion of someone, and
attributes the ability to deliver a judgment to courts and parliament. Ibid at 52 and 65.
838
Ibid at xiii, xiv, 65 and 67.
839
Ibid at 55 and 56 (regarding different judgment), and at 65 and 70 (for necessary respect).
840
Ibid at xiii-xiv.
279
For Hiebert, judgments of elected representatives can be as protective of rights as
court judgments, or even more so. 841 Moreover, she argues that courts are not as dynamic
as Parliament can be vis-à-vis evolving topics such as gay and lesbian rights. 842
Additionally, according to Hiebert, the Canadian Charter is open to various reasonable
interpretations. Therefore, the Supreme Court does not have the ability to find the correct
answer to Canadian Charter’s conflicts, as is demonstrated by the existence and use of
dissenting opinions. 843 Nonetheless, the Supreme Court’s perspective on the Canadian
Charter is also important to Hiebert. Courts are less passionate forums of discussion than
Parliament and, thus, could be better situated to identify invalid rights’ restrictions made
by the legislature. But in such judgments, the Supreme Court should be attentive to the
justifications made by Parliament, as evidenced by parliamentary records. Moreover, the
intensity of the Supreme Court's judgment should be based on the core 844 or peripheral
nature of the allegedly violated right. When the violated right is a core right, the Supreme
Court's scrutiny should be stricter. As for Parliament, the more serious the rights
infringement has been, the more careful the institution should be before taking a measure
contrary to the judicial ruling and the more reluctant it should be in the potential use of
the override. 845 Moreover, the use of the override should not be pre-emptive, that is to
841
Ibid at 28.
842
Ibid at 29.
843
Ibid at 30-31.
844
According to Hiebert, core rights are “requirements necessary for the people to govern themselves in a
representative system of government, so that the exercise of power is based on content rather than on
coercion.” Ibid at 57.
845
See ibid at 56 and 63.
280
say, it should not be used before a judgment of the highest court has been delivered, even
if a lower court has declared the legislation invalid. 846
The courts and the legislature provide different perspectives. The former give a
more rights-based and principled interpretation while the latter provides a policy-based
point of view. As controversial as the principle/policy distinction is, this difference
justifies preserving both institutions as interpreters of the Canadian Charter.
Parliamentary judgments can differ from those of the Supreme Court and still be
reasonable. One reason for paying careful attention to Parliament's judgments is that they
can include wider deliberation on the motives that animate legislative decisions. 847 And
although disagreement and lack of consensus is possible as a result of the interaction of
the branches, 848 an effort to understand and reflect upon the merits of the other
institution’s point of view is required for respect to exist. 849
In a context such as the one depicted by coordinated construction theorists, the
constitutive elements of dialogue exist and an inter-institutional dialogue can occur. First,
the Supreme Court and Parliament, as different institutions, constitute the I and the other
of the institutional dialogue. Second, each institution must be attentive to, although not
bound by, the other institution’s judgment. Thus, there is mutual listening and response to
the other institution’s judgment. As part of the respect for the judgment of the other
institution, each institution accepts that disagreements may arise. Third, neither
institution holds a monopoly on constitutional interpretation. Fourth, although courts can
review legislation and parliament can enact legislation, hierarchy is absent. This is
846
Ibid at 63.
847
Ibid at 67.
848
Ibid at 52, 55-56.
849
Ibid at 52 and 72.
281
because the courts and Parliament can validly act independently from the other
institution’s judgment and based on their own constitutional judgment.
6.5 Conclusion
In this chapter, I have argued that the hierarchy between the authority-claimant and the
subject is the main element of a relationship of authority that renders dialogue
impossible. Nonetheless, this does not render dialogue between authorities impossible. A
person who acts as an authority in one relationship can act as a peer in another. Because
of this possibility, a person who claims authority vis-à-vis a certain group of subjects
does not necessarily have a claim to authority vis-à-vis other third-parties. Even if one
acts as an authority-claimant in a certain case, in those cases where one is not part of a
hierarchical relationship of authority, but rather in a relationship of equal status, a
relationship of dialogue is possible.
Since both natural and legal persons can engage in a relationship of authority and
one of dialogue, the above analysis is applicable to dialogue among state institutions.
Dialogue is possible between coexistent authority-claiming institutions only if their claim
of authority is limited against private parties.
282
CHAPTER VII
INTER-INSTITUTIONAL DIALOGUE IN COLOMBIA
7.1 Introduction
In Chapter VI, I argued that the conditions for an inter-institutional dialogue exist within
a constitutional law theory that has not been called dialogue: the theory of coordinate
construction between courts and the legislature. In this theory, the courts and the
legislature interpret the constitution, but they do not claim the right to command the other
institution in this interpretative task. In other words, they do not claim authority over the
other institution. Due to this equality at the level of constitutional interpretation based on
the lack of claim of authority over each other, the possibility of dialogue between state
institutions exists.
I now explore the possibility of dialogue among authority-claiming high courts in
Colombia. I argue that dialogue among Colombian high courts would be difficult due to
the inherently hierarchical model of law which is deeply rooted in Colombia.
Nevertheless, I contend that two elements of Colombian constitutional design open the
door for eventual dialogue among high courts: first, the lack of a clearly established
constitutional hierarchy among the high courts on the issue of judicial review of judicial
decisions; and second, the Colombian constitutional principle of “harmonic
collaboration” among state organs.
In what follows, I explore the possibility of dialogue taking place among
Colombian high courts on the issue of judicial review of judicial decisions. I first direct
283
my attention to an illuminating postulate of Canadian dialogue theory: constitutional
design as a prerequisite for dialogue to take place. I then consider Colombian
constitutional design and its promise for dialogue.
7.2 Constitutional Design
Despite the fact that Roach, as noted in the preceding chapter, defends the Supreme Court
as supreme interpreter of the Canadian Charter, rendering dialogue impossible, he makes
an illuminating point regarding a necessary element for inter-institutional dialogue.
Roach locates the possibility of dialogue in the constitutional design that determines the
powers of the judicial and elected branches. For him, the concept of dialogic judicial
review refers to the constitutionally entrenched legislative ability to limit or override
constitutional rights as written in the bill of rights and as interpreted by judicial decisions.
According to Roach, in this sort of constitutional design, neither judicial nor legislative
supremacy is accepted. 850 The importance of constitutional design is also noted by Hogg
and Bushell. 851 For them, the Canadian Charter’s characteristics give flexibility to the
legislature to act according to the Canadian Charter as interpreted by the Supreme
850
Roach, "Dialogic Judicial Review", supra note 797 at 49, 55 and 56. See also Roach, The Supreme
Court on Trial, supra note 33 at 292. Note, however, that while developing what he understand for
dialogue in the Canadian context, Roach supports the preeminent role of the Supreme Court over the
legislature. Thus, he does not support a genuine dialogue, as I explained above.
851
According to Hogg & Bushell, "Several of the guaranteed rights under the Charter are framed in
qualified terms. Section 7 guarantees the right to life, liberty, and security of the person, but only if a
deprivation violates “the principles of fundamental justice.” Section 8 guarantees the right to be secure
against “unreasonable” search or seizure. Section 9 guarantees the right not to be “arbitrarily” detained or
imprisoned Section 12 guarantees against “cruel and unusual” punishment." Hogg & Bushell, "The Charter
Dialogue Between Courts and Legislatures", supra note 32 at 87-88.
284
Court. 852 Despite the constitutionally-based possibility of dialogue, Hogg and Bushell
recognize that, based on the constitutional design, no dialogue is possible when the
Supreme Court finds that the legislative objective that supports the right’s restriction is
not pressing or substantial. 853
Constitutional design is also relevant for authors who want to argue that dialogue
would not be possible in any case. Looking at the wording of Section 33 of the Canadian
Charter, Carissima Mathen argues that the term “notwithstanding used to define the
context in which the legislator opposes the Court’s decision would imply a high political
cost for the legislature in cases of overrides.” 854 For Mathen, after the entrenchment of
the Canadian Charter, respect for democracy may no longer be the most important
parameter to evaluate judicial review. Rather, a more just society could constitute this
parameter. 855 According to her, and contrary to Hogg and Bushell, judicial review in
Canada is strong despite the possibility of legislative response. 856 This being the case, it is
not appropriate to say that an inter-institutional dialogue takes place in Canada. 857
Likewise, Roach argues that a dialogical relationship between the US Supreme Court and
the United States Congress is not possible because the structure of the American Bill of
Rights does not support dialogue between branches but instead backs judicial
supremacy. 858
852
See ibid at 82.
853
Ibid at 93-95
854
Carisssima Mathen, "Dialogue Theory, Judicial Review, and Judicial Supremacy: A Comment on
Charter Dialogue Revisited" (2007) 45 Osgoode Hall Law Journal 125 at 138.
855
See ibid at 143.
856
Ibid at 145.
857
Ibid at 146.
858
See Roach, The Supreme Court on Trial, supra note 33 at 249 and 290.
285
7.3 Colombian Constitutional Design
Since constitutional design is central to the possibility of dialogue, it is worth exploring
whether the Colombian constitutional structure exhibits a design congenial to dialogue. In
Chapter III, I argued that there is no clear-cut constitutional solution in which any of the
courts must have the final say with regards to guardianship review of judicial decisions.
Although the Colombian Constitutional Court claims to have hierarchical superiority over
guardianship matters based on constitutional arguments, the Council of State and the
Supreme Court of Justice deny the Constitutional Court this status based on the
constitutional recognition of their roles as courts of last instance in their respective
jurisdictional areas. And from this denial has followed disobedience of the Constitutional
Court’s claim regarding its role as the final reviewer of all guardianship actions. In
addition, neither the Constitutional Court nor the Supreme Court of Justice or the Council
of State has recognized the jurisdiction of the Superior Council of the Judiciary - a high
court that in principle is supposed to solve judicial conflicts of competence - to resolve
the conflict regarding judicial review of judicial decisions. Accordingly, one could say
that, in principle, the lack of a constitutionally recognized, hierarchically superior court
allows dialogue in Colombia.
Nonetheless, the existence of three high courts in Colombia has a historical origin
that is important to examine in order to determine whether the constitutional design
allows for dialogue. The coexistence of courts was launched and is being applied in a
legal system with a marked Kelsenian influence. Below, I explore some of the main
Kelsenian ideas regarding interaction of legal norms and interaction of state institutions,
286
high courts included. In addition, I present a brief account of the influence Kelsen has
had on Colombian legal thinking, including that of the high courts.
7.3.1 The Kelsenian Influence
The existence of two high courts in one legal system, one of which is in charge of
constitutional law matters, is a creation of Hans Kelsen. 859 For Kelsen, in order to have
independent review of legislation 860 and a unified interpretation of the constitution, 861 it
was necessary to create an independent court that was charged with controlling the
actions of the legislature. As I now suggest, the design of this dual system embodies
Kelsen’s concept of law. I first highlight several Kelsenian concepts that relate law to a
purportedly necessary hierarchical structure and the ideal of centralizing and unifying the
meaning of law. I will later connect Kelsen’s conceptual ideas about law with the
creation of a constitutional court.
Kelsen’s idea of a system of law as necessarily hierarchical
A central feature of the Kelsesian idea of law is Kelsen’s concept of the hierarchical
system of law. 862 Kelsen conceived of law as a pyramidal system of norms in which each
norm is simultaneously under the norm that it applies and above the norm the parameters
of validity for which it creates. 863 On this pyramid, the constitution is located at the top
and thus is the only norm which is not a creation of any other—it is presupposed. 864
859
See Stanley L. Paulson, "Constitutional Review in the United States and Austria: Notes on the
Beginnings" (2003) 16:2 Ratio Juris 223 at 232 [Paulson, “Constitutional Review”].
860
See Kelsen, Qui doit Être, supra note 1.
861
See Paulson, supra note 859 at 235.
862
See Kelsen, Pure Theory of Law, supra note 3 at 201 and 221.
863
Kelsen spoke of a laddered system of norms. But I am going to use the metaphor of the pyramid since it
respects Kelsen’s hierarchical notion of the normative system and it is the metaphor by which the
Kelsenian normative system is usually identified with.
864
See Kelsen, Pure Theory of Law, supra note 3 at 195, 198, 199, 234 and 236.
287
Accordingly, for Kelsen, the constitution regulates the creation of statutes, and statutes
apply the constitution. Statutes determine the rules for the creation of regulatory acts and,
in this sense, create law; and regulatory acts apply the statutes, but simultaneously create
law regarding the validity of administrative acts. 865 Judgments are also part of this
hierarchical dynamic of application and creation. Judicial decisions apply general norms
and create particular legal norms. 866
This kind of simultaneous creation and application involves hierarchy. In
Kelsen’s orientational metaphorical 867 words, “a higher-level norm is applied and a
lower-level norm is created.” 868 Similarly, for Kelsen, the more one descends the
normative levels, the more limited is the capacity to create laws according to the norms at
that level and the wider the application of laws created by these norms. 869 In this
hierarchically driven discourse, the language of normative superiority and normative
subordination is present. 870
Thinking about the norms of a legal order in hierarchical terms limits any
horizontal accommodation of such norms. For Kelsen, this top-down legal order excludes
the possibility of thinking of a legal system as a group of equal-level norms standing
alongside one another. 871 Consistent with the impossibility of horizontal accommodation,
to Kelsen equal level contradictory norms can never coexist; sooner or later, one of them
865
See Kelsen, "La Garantie Jurisdictionnelle de la Constitution", supra note 1 at 200.
866
See Vinx, supra note 3 at 151.
867
See Lakoff & Johnson, supra note 38 at 14-17.
868
Kelsen, Introduction to the Problems of Legal Theory, supra note 70 at 70.
869
See Kelsen, "La Garantie Jurisdictionnelle de la Constitution", supra note 1 at 200.
870
Ibid at 236.
871
Kelsen, Introduction to the Problems of Legal Theory, supra note 70 at 64. See also Kelsen, Pure
Theory of Law, supra note 3 at 201.
288
has to be invalid. The validity of conflicting norms is determined by a common higher-
level norm. The Kelsenian language is categorical in this assertion:
Normative cognition tolerates no contradiction between two norms of the

same system; the possible conflict, however, between two valid norms at
different levels is resolved by the law itself—[nullity or validity until
invalidated]. The unity in the hierarchical structure of the legal system is not
endangered by logical contradiction. 872
If authorities issue norms and want to rule on the same matter, a collision of
norms would occur. It follows from the above discussion that this collision should be
resolved in favour of one of the norms by nullifying the other or the validity of both until
one is invalidated. Otherwise, application of the conflicting norms will lead to
inconsistent prescriptions. Under the Kelsenian idea of the impossibility of a system that
accepts contradiction of equal level norms, the coexistence of ruling authorities over the
same issue would, thus, be impossible.
This impossibility of contradiction of equal level norms is reinforced by the
Kelsenian notion of constitution. For Kelsen, the constitution implies hierarchy and
unquestionability. The constitution is the “‘higher’ norm”, the “last and highest”, the
validity of which is presupposed and authorities cannot question its validity based on any
other norm. 873 The role of the constitution is to be the point of unity of the plurality of
norms, a unity that consists of being the last reference point for validity.874
For Kelsen, constitutional superior hierarchy goes hand-in-hand with authority
and coercion. The constitution not only centralizes the parameters of validity of other
norms but also sets the parameters of coercion and delegates to authorities the power to
872
Kelsen, Introduction to the Problems of Legal Theory, supra note 70 at 75.
873
See Kelsen, Pure Theory of Law, supra note 3 at 195.
874
See Kelsen, Introduction to the Problems of Legal Theory, supra note 70 at 55.
289
coerce. 875 Coercion is applied in cases where norms, including constitutional norms, are
disobeyed. 876
Finally, for Kelsen, all types of courts of last resort should hold the final say on
the cases they hear. Although for him it was possible that parties to a process could
question a judicial decision by appealing to a superior court, he asserted that a court of
last resort must be understood to deliver a conclusive final decision—a decision that
becomes res judicata. 877 Honouring their name, courts of last resort possess for Kelsen a
definitive and exclusive interpretation of the norms to be applied in a certain case. 878 Its
opinion has to be accepted and, thus, no coexistence of contrary legal interpretations is to
be entertained. 879 Kelsen perceived the possibility of two contradictory coexisting judicial
decisions (e.g. one judgment condemning and the other absolving) as a case of
inadequate legal technique; he did not foresee a possible horizontal accommodation of
these two coexisting contradictory decisions. If contradictory norms existed after a
judicial determination, the executive organ was to decide which one was to be applied.
To Kelsen, the final validity or invalidity of the conflicting norms was, thus, decided by
their final effectiveness or ineffectiveness, determined by which of the two contradictory
norms the executive applies. 880 Note that Kelsen does not imagine a scenario in which,
for example, two courts agreed on which judgment to apply or arrived at a joint
875
Ibid at 57.
876
Ibid.
877
Kelsen, General Theory of Law and State, supra note 428 at 154. For Kelsen, the decision will become
res judicata even if the judicial decision contradicts the law. Ibid at 155 and 403.
878
Ibid at 155.
879
880
Ibid at 208.
290
substantive decision on the merits. Institutional horizontal accommodation, therefore,
does not fit within the Kelsenian theory of law.
Finally, Kelsen excludes citizens from the normative interpretative process,
aiming at unification of law. The interpretation of a norm by the individual is not relevant
since the individual is subject to punishment if her interpretation does not coincide with
that of the official organ. 881
Kelsen’s creation of a dual system of courts
Kelsen initially hesitated about the creation of judicial review of legislation by an
independent court. This was because it could harm the legislature’s authority 882 and could
go against the doctrine of the separation of powers. 883 Nonetheless, the overall reasons
for effective constitutional protection led him to argue in favour of such review. For
Kelsen, if the constitutional reviewer was the legislature, it could not bind itself through
review. Only a legislature-independent constitutional tribunal, or one that does not judge
the validity of its own acts, 884 would be able to guard the constitution effectively. 885
External review of legislation seems to open a space for interaction and
accommodation of authorities. Kelsen’s creation of a constitutional tribunal is a potential
opportunity for interaction among state powers. Certainly, when arguing in favour of the
creation of a constitutional court to review legislation, Kelsen revaluates his concept of
the separation of powers and prefers to talk about division of powers, in order to avoid
881
Ibid at 355.
882
Kelsen, "La Garantie Jurisdictionnelle de la Constitution", supra note 1 at 219.
883
Ibid at 219.
884
Kelsen, Qui doit Être, supra note 1 at 35, 64-65 [translated by the author]. And see Paulson, supra note
859 at 225.
885
Kelsen, "La Garantie Jurisdictionnelle de la Constitution", supra note 1 at 223. See also Kelsen, Qui doit
Être, supra note 1 at 35 and 110; and David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans
Kelsen and Herman Heller in Weimar (New York: Oxford University Press, 1997) at 115 and 118
[Dyzenhaus, Legality and Legitimacy].
291
the sense that the branches are isolated from one another. For Kelsen, to talk about
division of powers is “to allow a reciprocal control of powers.” 886 These powers’
interaction is limited, however, if one keeps in mind that for Kelsen the constitution
already embodies accommodation of governmental powers (e.g. the constitution regulates
conflicts of powers between government and the legislature or among members of the
legislature). 887 Once a compromise is reached within the constitution, respect for the
constitution consists in respect for the unified juridical order. 888
Moreover, as noted, Kelsen argued that safeguarding the constitution involves a
final say vested in an independent constitutional tribunal. And he saw constitutional
provisions as norms that have only one meaning. It is up to the constitutional tribunal, as
an independent organ, to definitely decide the meaning of these provisions and the
constitutionality of the legislation under review. 889 Accordingly, the legislature cannot
reply to the court’s rulings and must obey them.
Along these lines, uniformity was one of the leading Kelsenian reasons for
establishing a constitutional court. Kelsen takes for granted that diversity in the
interpretation of the constitution is an error that must be avoided. Due to a possible lack
of uniformity in constitutional interpretation, Kelsen did not support the American model
of constitutional review. Kelsen described the American model of constitutional review
as including the possibility of judges not applying a statute in a particular case when
these judges find the statute contrary to the constitution. He argued that the disadvantage
of not applying statutes to a particular case as means of constitutional control is the lack
886
Kelsen, "La Garantie Jurisdictionnelle de la Constitution", supra note 1 at 225 [translated by the author].
887
Kelsen, Qui doit Être, supra note 1 at 98-99 and 101.
888
Ibid at introduction at 39, and 42.
889
Ibid at 89-90 and 97. See also Dyzenhaus, Legality and Legitimacy, supra note 885 at 118-119.
292
of uniformity in the determination of constitutionality by different law-applying organs.
For Kelsen, this lack of uniformity threatens the authority of the constitution. 890
Contrasting the American model with the Austrian model, Kelsen argued that in
the US the Supreme Court could declare a statute unconstitutional in one case but not in
another. Moreover, different judges could have different opinions regarding the
constitutionality of a norm before the case reached the US Supreme Court. 891 On the
contrary, Kelsen maintained, the constitutional tribunal model, such as that used in
Austria, provides certainty while having a centralized review of constitutionality through
the power to strike down a statutory provision once and for all rather than for a particular
case. 892
Furthermore, the eventual problem of horizontal accommodation among courts of
last resort due to judicial review of judicial decisions on constitutional grounds was not
foreseen by Kelsen. He believed that courts, high courts included, should not be subject
to constitutional review. While defending the creation of a constitutional tribunal, Kelsen
asserted that acts of the government and the legislature should not be controlled
internally. By not mentioning other organs, he tacitly suggested that the courts are not
under the control of the constitutional tribunal. 893
Curiously, he failed to explain why ceding unreviewable constitutional authority
to the courts would not violate the independence principle of an organ not being the judge
of its own acts. This is curious because Kelsen asserted that both the judiciary and the
890
Hans Kelsen, "Judicial Review of Legislation: A Comparative Study of the Austrian and the American
Constitution" (1942) 4:2 The Journal of Politics 183 at 185 [Kelsen, “Judicial Review of Legislation”].
891
Ibid at 189. See also Paulson, supra note 859 at 236.
892
Kelsen, "Judicial Review of Legislation", supra note 890 at 192.
893
Kelsen, Qui doit Être, supra note 1 at 64 and 65.
293
legislature create law. The difference in law creation between these two organs is only a
difference of scope, not nature. 894 And yet, Kelsen did not believe that the type of
individual norms created by judges through adjudication was subject to the jurisdiction of
the constitutional tribunal. Instead, Kelsen saw the constitutional tribunal only as a
“législateur négatif.” 895
In a similar vein, when arguing for judicial review of legislation, Kelsen asserted
that beyond statutes, other actions could also be subject to external judicial review due to
their direct development of the constitution. 896 Nonetheless, when mentioning the acts
under control, Kelsen only included actions of the legislature and government. 897 Kelsen
did not mention decisions of any court as reviewable acts. In the case of tribunals, and
because of their independence, he believed the possibility of analysis of the judgments’
correspondence to the constitution by the tribunal themselves to be a valid exercise. 898
Kelsen is arguably guilty of basing his view on an unsubstantiated faith in judges. He saw
ordinary judges as capable of self-review, and that judges were capable of self-review
894
Ibid at 75 and 76. See also Dyzenhaus, Legality and Legitimacy, supra note 885 at 111, 112, 113 and
117. For judges as creators of norms, see Kelsen, Pure Theory of Law, supra note 3 at 351, 353 and 354;
and Kelsen, Introduction to the Problems of Legal Theory, supra note 70 at 67-68.
895
Kelsen, Qui doit Être, supra note 1 at 87.
896
See Kelsen, "La Garantie Jurisdictionnelle de la Constitution", supra note 1 at 206-207. Kelsen argues
that, for reasons of independence, neither members of the parliament nor members of the government
should be part of the Constitutional Court, but he does not mention members of other courts. Thus, he
tacitly excludes other courts from review.
897
Ibid at 227. The only interaction between high courts, according to Kelsen, would be one regarding a
question of unconstitutionality. Ibid at 246-247. Note, however, that despite the parties' intervention, this is
not a motion against the judicial decision but against the norm that is supposed to be applied Judges bring
the law before the Constitutional Tribunal, not the judicial acts.
898
In Kelsen’s words: “In fact, one sees in the unique independence of the courts a sufficient guarantee of
the regularity of their acts” (“On voit en effet dans la seule indépendance des tribunaux une garantie
suffisante de la régularité de leurs actes”). Ibid at 221. Kelsen understood independence as the non-
subjection of an individual to “orders of superior judicial or administrative organs” (Kelsen, General
Theory of Law and State, supra note 428 at 275). The 1920 version of the Austrian constitution did not
foresee any relationship between the jurisdiction of the Constitutional Court and the judicial application of
statutes. See Garlicki, supra note 6 at 46.
294
since they were judges. He did not develop the argument further by arguing why judges
were able to review themselves. Not even the fact that judicial acts must respect
constitutional parameters inclined Kelsen to think that the constitutional tribunal could
review ordinary judges. 899
Another reason why judicial review of judicial decisions is not contemplated by
Kelsen is that for him judges are so independent that not even the principles of stare
decisis or precedent coming from a superior judge can bind them. The only source of law
that judges are supposed to look to is statutory law. 900 To Kelsen, this independence
would be disturbed if the constitutional court were to review another court because, if this
were the case, judgments and not only statutes would have informed judicial analysis.
Application of the Kelsenian constitutional design in Colombia
When the so-called Kelsenian model of judicial review was imported by
Colombia, the Kelsenian concept of law and its core components (hierarchy, the
impossibility of contradictory equal-level norms, and an emphasis on a formal
constitution) already existed in the country. 901 This concept of law continues to be
markedly present in the Council of State and the Supreme Court of Justice after the 1991
Constitution. 902 With the advent of the Constitutional Court came a constitutionally
progressive concept of law, a concept that the Constitutional Court believes is embodied
899
See Kelsen, "La Garantie Jurisdictionnelle de la Constitution", supra note1 at 223.
900
Ibid at 314.
901
See López Medina, supra note 404 at 342-345, 365, 372-373 and 387. López Medina notes that some of
the readings of Kelsen previous to 1991 did not deny the compatibility of Kelsen with a progressive notion
of law. Ibid at 354-355 and 418-428. Note, however, that from the progressive notion of law does not
follow a lack of hierarchical character.
902
Ibid at 438-439.
295
in the Colombian Constitution. 903 Nonetheless, from a progressive approach it did not
follow that the hierarchical view of law disappeared. What changed was the fact that now
what should be at the apex of the hierarchy, according to the Constitutional Court, is a
progressive vision of law. This fact created a tension in the implementation of a system of
dual courts that includes judicial review of judicial decisions.
I now explore how the Kelsenian hierarchical concept of law has been embraced
in Colombia by the three high courts in conflict. As stated above, the Kelsenian discourse
is hierarchically structured and authority-centred. This common ideological background
renders any institutional accommodation in Colombia difficult.
I explained in Chapter III how the Supreme Court of Justice’s and the Council of
State’s concepts of justice are chiefly based on a formal conception of the Colombian
Constitution, a conception extensively embraced by Kelsen. The notorious influence of
Kelsen on Colombian legal academics also permeated the Constitutional Court’s
constitutional law concepts. Although the Constitutional Court builds its conception of
the Colombian Constitution on a rights-based ideal, the support behind the claim for
obedience to its judicial decisions is based on the correlation of authority and the duty to
obey, as discussed in Chapter IV. Additionally, the Constitutional Court is also expressly
influenced by Kelsen in its hierarchical approach to law.
It is not necessary to go far to find the Kelsenian influence in the Constitutional
Court; the Constitutional Court itself is a product of Kelsen’s intervention in the design of
the Austrian Constitution of 1920—a model discussed above. As previously explained,
the constitutional tribunal within Kelsen’s theory, as guardian of the Colombian
903
Ibid at 414-415 and 436-437. This concept was partially expanded to ordinary judges through their role
as guardianship judges. Ibid at 449.
296
Constitution (the highest order of legal norms), embodies his hierarchical concept of law.
Moreover, the Constitutional Court itself has included Kelsen’s ideas as supporting
arguments in several of its judgments.
For example, in Silva Nigrinis et al., interlocutory decision A-003-92 CC, the
Constitutional Court denied the plaintiff the ability to question the validity of the 1991
Constitution based on Kelsen’s notion of the basic norm. Also, the dissenting opinions of
Justice Jaime Araujo Rentería in judgments C-944-08 CC and C-939-08 CC - judgments
that studied the constitutionality of a statute approbatory of international treaties -
mention Kelsen’s concept of validity of law, a validity which, according to these
dissenting opinions, must always be traced back to the presence of a basic norm higher
than the one whose validity is being tested. Additionally, Silvio Elías Murillo Moreno,
judgment C-1154-08 CC, expressly quotes from Kelsen’s Pure Theory of Law, where he
argues that the legal order is not a system of norms located at the same level but a
construction with differing levels of legal norms. 904 Also, in Guillermo Isaza Herrera
and Leonardo Cañón Herrera, judgments C-782-07 CC and C-858-06 CC, the dissenting
opinions by Justice Jaime Araujo Renteria mention Kelsen as the legal scholar who
created constitutional courts as negative legislators. In the same hierarchical vein, Cañón
Herrera mentions Kelsen’s arguments from General Theory of Law and State regarding
the impossibility of the legislature modifying the basic norms. 905 This hierarchical
statement by Kelsen, arguing for the impossibility of legislative modification of the
904
See judgment C-1154-08 CC citing the Spanish language translation of Pure Theory of Law (Hans
Kelsen, Teoría Pura del Derecho. México, Editorial Porrúa, 15ª edición, 2007, p.232) [translated by the
author]. Citing the same passage, see judgment T-294-04 CC.
905
See judgment C-782-07 CC citing the Spanish language translation of General Theory of Law and the
State (Hans Kelsen, Teoría general del derecho y del estado, Edit UNAM, Mexico 1969, pp. 307-308)
297
constitution, is adopted in dissenting opinions by Justice Jaime Araujo Rentería in Andrés
Felipe Ramírez Gallego, Pedro Pablo Camargo, and Alfonso Clavijo González,
judgments C-034-06 CC, C-1043-05 CC and C-1055-05 CC, respectively. In addition,
the judgment in Sergio Emilio Cadena Antolinez v. Supreme Court of Justice, Labour
Chamber, judgment SU-1185-01 CC, cites Kelsen to support the view that labour
conventions have the same hierarchical status as labour statutes. And in María Matilde
Trejos Aguilar, judgment C-034-03 CC, the Constitutional Court found in favour of the
unification of judicial precedent based on the idea that, according to Kelsen, the rule of
law is built on the hierarchical structure of law with the Colombian Constitution at the
top and statutes and other legal acts beneath it. More recently, in Daniel Bonilla
Maldonado et al., judgment C-417-09 CC, the Constitutional Court mentioned Kelsen to
support the idea that judicial decisions are legal norms.
Taking into account the importance of Kelsen for the Colombian high courts, it
could be said that, in connection with the way Kelsen designed the constitutional tribunal,
the Kelsenian ideological background limits the possibility of dialogue among these
institutions. The judgments of the Supreme Court of Justice, the Council of State and the
Constitutional Court cannot be coordinated or made equal-level norms. Kelsen would not
allow the possibility of a long-term dialogue that does not produce a single valid norm
and that accepts contradictory decisions that may come to accommodate one another over
time.
Kelsenian ideas have been influential in Colombian legal education, the education
of judges of the high courts included, and the Colombian reading of Kelsen has been
mainly formalist. Although Kelsen recognized the role of judges vis-à-vis interpretative
298
indetermination, Colombian jurists have almost left aside this aspect of Kelsen’s views.
They have emphasized instead a Kelsen who argued for law constructed as a hierarchical
system. 906 López Medina points out that in Colombia there was no hesitation in
implementing the hierarchical concept of law implicit in the Kelsenian pure theory of
law. This laddered vision of law is the main contribution of Kelsen’s Pure Theory of
Law in Colombia. For López Medina, the “legal pyramid” and its laddered implications
are the most widely diffuse aspects of Kelsenian theory in Colombia. 907
Furthermore, López Medina argues that, despite Kelsen’s anti-traditionalist
positivism, Colombian practitioners read his works to strengthen their local faith in
exegetic-textualism and formalist positivism. Kelsen was read in the 1940’s to overcome
the anti-formalism that swept through Colombia from 1915 to 1939. 908 The Colombian
reading of Kelsen from the 1940's emphasized the concept of law as a set of norms in the
structure of if X then Y, the hierarchical structure of law in the form of a pyramid, the
separation of law from facts, the division between morality and law, and the need for
legal coercion in order for law to exist. 909
Kelsen has remained a fixture in Colombian legal education well after the 1940’s.
The fact that Kelsen’s ideas and teachings were present when the new constitution was
being entrenched is evidenced, for example, by the mention of the concept of law as a
pyramid and the constitution as its apex in the prologue of the guardianship action draft
906
López Medina, supra note 404 at 66.
907
Ibid at 387.
908
Ibid at 342-345 and 365. López Medina recognizes, however, that there was a second and later
Colombian reading of Kelsen according to which he embodied an anti-hegemonic, anti-formalist version of
positivism. Ibid at 354.
909
Ibid at 372-373.
299
bill. 910 After reviewing the salient features of the Colombian hierarchical legal system,
and taking into account the need for appropriate constitutional design for dialogue to take
place, admittedly, dialogical interaction between Colombian high courts may seem hard
to imagine.
7. 3.2 Harmonic Collaboration
I have noted that the Austrian constitutional design imported by Colombia does not
facilitate institutional dialogue. On the contrary, this model is strongly rooted in
hierarchy, an element that cannot exist in dialogue. Nonetheless, I will explore one
further element of the 1991 Constitution that could provide an avenue for dialogical
interaction. Article 113 of the Colombian Constitution establishes that the three branches
of state power are the legislative branch, the executive branch and the judicial branch. It
adds that some other autonomous and independent organs are part of the state. Finally,
this article establishes that different state organs have separate functions but collaborate
harmoniously for the attainment of state ends.
The Colombian Constitutional Court has established that a constitutional principle
of “harmonic collaboration” follows from Article 113. The scope of this principle
includes several types of interaction among state branches, among branches and
autonomous organs, and among different organs of the same branch. The forms of
interaction permitted by the principle of harmonic collaboration can be classified as
follows: (i) removing jurisdiction that belongs to one branch and attributing it to another
910
See Legislative project, Constitutional Gazette, April 4th 1991, at 2. For further examples of the
Kelsenian influence after the 1991 Constitution, see López Medina, supra note 104 at 377-380. In López
Medina’s words: “the Kelsenian vision of the laddered version of the legal system is widely accepted by
local practitioners. This version is seen as the main contribution of the Pure Theory of Law. The “legal
pyramid” and its implications are the most widespread kelsenian theory in the local legal consciousness.”
[translated by the author] Ibid, supra note 404 at 387.
300
branch; (ii) establishing a duty for one branch to collaborate with another branch in the
development of the latter’s functions; (iii) attributing an area of jurisdiction to two organs
of the state, simultaneously and on the same subject matter, with one of the organs having
the final say; and (iv) attributing jurisdiction to two organs of the state, simultaneously
and on the same subject matter, with equal hierarchical status for both organs.
Removing jurisdiction that belongs to one branch and attributing it to another
branch
In Luis Enrique Cuervo Pontón, judgment C-212-94 CC, the Constitutional Court studied
the constitutionality of a statutory norm that attributed temporary jurisdiction to judge
certain misdemeanours to police authorities instead of municipal criminal judges. The
Constitutional Court held that the norm was constitutional. According to the
Constitutional Court, in light of the principle of harmonic collaboration, the judicial
function can be shared by the judiciary and the executive generally, and by police
authorities in particular. The Constitutional Court mentioned that, in principle, police
authorities could not take part in judgments if personal liberties would be affected. And
yet, the Constitutional Court found the norm at issue valid due to its transitory character.
Note, however, that although both branches hold jurisdiction to judge, once jurisdiction
to judge certain acts has been attributed to one of the branches this excludes the
simultaneous participation of the other branch in the judgment of the same subject matter.
In James Alexander Ordoñez Valdes Bautista, judgment C-396-04 CC, the
Constitutional Court studied the constitutionality of a statutory norm that gave criminal
court judges jurisdiction that, in principle, belonged to the prosecutor. This functional
transfer was exceptional and transitory, and limited to areas of the country where a
301
prosecutor has not yet been designated. According to the Constitutional Court, when
jurisdiction belonging to the prosecutor is transferred in exceptional circumstances and
on a temporary basis to a criminal court judge, this is consistent with the constitutional
division of powers. Moreover, the Constitutional Court held, if the Colombian
Constitution allows harmonic collaboration between branches of power, there was no
reason to deny such a collaborative possibility within one branch. It is important to note
that the harmonic collaboration in this case was of an exclusive nature; either the criminal
law judge or the prosecutor could have jurisdiction. The collaboration did not envision
actors from both branches possessing and using the power simultaneously.
Establishing a duty for one branch to collaborate with another branch in the
development of the latter’s functions
The Constitutional Court has also found collaboration between the judiciary and the
executive to be constitutional. In Carlos Alberto Maya Restrepo et al., judgment C-251-
02 CC, the Constitutional Court had to decide on the constitutionality of a statutory norm
that directed the Office of the General Prosecutor to send a monthly report on criminal
investigations related to national security and crimes against humanity to the government.
The Constitutional Court upheld the constitutionality of the provision. Further, the norm
authorized the Minister of Defence to ask the Office of the General Prosecutor to provide
extra information in special cases. Although the Constitutional Court found this norm
constitutional in light of the principle of harmonic collaboration, it made clear that this
principle could not mean the subjugation of all branches to the executive in order to
create a supra-national power. According to the Constitutional Court, harmonic
collaboration could not be understood to imply the elimination of the principle of
302
independence between the branches or of their functional separation. The Constitutional
Court added that the principle of harmonic collaboration did not allow the fusion of tasks
and the sharing of responsibilities on aspects clearly differentiated by the Colombian
Constitution. Nonetheless, according to the Constitutional Court neither of these forms
of conduct was present in the case before it.911
Attributing an area of jurisdiction to two organs of the state, simultaneously and on
the same subject matter, with one of the organs having the final say
A second type of jurisdiction sharing that allows for the opinion of two organs but
establishes a hierarchy among them existed in Carlos Eduardo Florez Martinez,
judgment C-1506-00 CC. In this judgment, the Constitutional Court studied the
constitutionality of a statutory norm that authorized the National Bank, an autonomous
organ of the state, to collaborate with the Office of the General Prosecutor, an organ from
the judiciary, in the investigation of presumptive crimes that affected the National Bank’s
interests. Due to the highly technical knowledge necessary to determine whether there
was a criminal harm to the interests of the National Bank, the Constitutional Court found
that the requirement that the National Bank gives notice to the Office of the General
Prosecutor was a valid development of the harmonic collaboration principle. The
Constitutional Court made clear, however, that the function of the National Bank was of
mere collaboration and not one of advancing the criminal inquiry, a function exclusive to
the Office of the General Prosecutor. Further, the Constitutional Court made clear that the
National Bank’s investigative action was separate from and not part of the criminal
process. In addition, the Constitutional Court clarified that the National Bank’s
911
In Colombia, the Office of the General Prosecutor is not part of the Executive. It is part of the judiciary,
according to article 249 of the 1991 Constitution.
303
investigative task should be advanced under the guidance of a member of the Office of
the Prosecutor General in order to respect due process. Accordingly, the jurisdiction of
the National Bank was limited to providing evidence to the Office of the Prosecutor
General in order for the latter to consider its relevance to opening a criminal inquiry.
A different type of jurisdiction sharing, but within one branch and not between an
autonomous organs and an organ within a branch, was found in judgment C-037-96 CC, a
mandatory judicial review of the statutory law that provided general rules for the
administration of justice. Within this statutory law, the Constitutional Court studied two
articles in terms of harmonic collaboration. The first was an article that attributed
jurisdiction to the Supreme Court of Justice to evaluate the behaviour of superior tribunal
judges. The second was an article that gave the Council of State jurisdiction to evaluate
the behaviour of administrative tribunal judges. The Constitutional Court noted that the
Colombian Constitution attributes the evaluation of judicial conduct in general, superior
and administrative tribunal judges included, to the Superior Council of the Judiciary.
Nevertheless, the Constitutional Court found the norm to be constitutional. According to
the Constitutional Court, within a framework of harmonic collaboration, the Supreme
Court of Justice and the Council of State can provide opinions on the behaviour of
superior and administrative tribunal judges. The Constitutional Court conditioned this
finding of constitutionality on the fact that the findings of the two high courts were not
binding on the Superior Council of the Judiciary, which is the organ entitled to deliver a
final judgment on the behaviour of these judges, according to disciplinary law. 912 It is
912
It is important to note that when the Superior Council of the Judiciary acts as disciplinary law judge it
does not review the judgments of the SCJ or the COS, but rather the disciplinary behaviour of the justices
of these courts. The only time that the Superior Council of the Judiciary can review judgments of these high
courts is when it acts as guardianship judge of cases that the other high courts refused to hear by hiding the
304
worth noting that although the Constitutional Court found the judgment on the same
subject matter (i.e. judicial behaviour) by two organs of the same branch to be
constitutional, only one of these organs (the Superior Council) had the last word on the
issue, and the opinion of the other was merely advisory.
In a similar vein, the Constitutional Court studied a statute that established the
government’s duty to consult Congress on certain subject matters without being bound by
Congress’s opinion. In André Viana Garcés, judgment C-246-04 CC, the Constitutional
Court analyzed the constitutionality of the government’s duty to ask for the views of the
Inter-Parliamentary Commission on Public Credit before entering into public loan
contracts. The Constitutional Court also studied the government’s duty to present
periodic reports to the commission regarding the execution of such loans. This statutory
requirement is non-binding. The Constitutional Court declared the statute constitutional
since it was a manifestation of harmonic collaboration and respected the separate
functions of the government and Congress.
According to the Constitutional Court, checks on one branch provided by the
others constitute an essential element of the division of powers; the checks avoid
excesses of power accumulating within a particular branch of the state. In particular,
Congress has the role of exercising political control over governmental activities.
Separation of powers, however, was complemented by a harmonic collaboration of
organs which promoted joining forces to achieve the state’s ends. Despite the relevance
of harmonic collaboration, the Constitutional Court made clear that it could not ignore the
division of powers so far as to accept that one organ exercises the jurisdiction of another.
guardianship file. But if this is the case, the Constitutional Court will be its hierarchical superior and will
have the opportunity to review the guardianship judgment at its discretion, as explained in Chapter I.
305
Note how although the government and Congress, through the inter-parliamentary
commission, give their opinion on the same subject matter it is the government that
makes the final decision on the issuance of public loans. Therefore, hierarchy exists.
The harmonic collaboration of the three branches of power can be found in
interlocutory decision A-008A-04 CC, where the Constitutional Court analyzed
presidential objections to a bill that regulated the exercise of journalism. Some
background is needed to understand the case. According to Article 167 of the Colombian
Constitution, the President can present constitutional objections to a bill that has been
studied by both chambers of Congress. If this type of objection is brought, the bill goes to
the Constitutional Court for constitutional review. After the Constitutional Court reviews
the bill, it sends it to Congress for amendment in light of the Constitutional Court’s
judgment. After the Congress has amended the bill, it has to send it to the Constitutional
Court for a final review.
In the case at issue, after the President objected to a bill on constitutional grounds,
the Constitutional Court reviewed the content of the bill and declared that several of the
bill’s articles - but not all of them - were unconstitutional. The Constitutional Court then
sent the bill to the Congress in order for it to redraft the bill in line with the Constitutional
Court’s decision. Congress made some amendments and sent the bill back to the
Constitutional Court for review. However, according to the Constitutional Court,
Congress had not redrafted and reintegrated the bill in accordance to its judgment.
Nonetheless, in interlocutory decision A-008A-04 CC, the Constitutional Court did not
issue a finding of unconstitutionality for the bill but rather once again remanded it to
Congress. According to the Constitutional Court, Congress had not yet complied with the
306
constitutional requirements. Although this remand was unusual, the Constitutional Court
justified this action in light of the principles of harmonic collaboration and preservation
of the law. 913 According to the Constitutional Court, these principles imply that the
Constitutional Court tries as far as possible to establish “an institutional dialogue with
Congress in order for Congress to adjust statutes or bills to the Constitution,” 914 without
renouncing its role as guardian of the constitution.
Note how the Constitutional Court speaks of institutional dialogue in the
framework of harmonic collaboration, but, simultaneously, anticipates its authoritative
role as guardian and interpreter of the Constitution. Therefore, no equal-level
constitutional interpretative role existed. As in the Canadian constitutional law theory of
dialogue, the Colombian Constitutional Court simultaneously employs two incompatible
concepts: authority and dialogue, rendering the latter impossible.
The hierarchical tone of the Constitutional Court’s holding is clear in its final
decision on the presidential objections under review in judgment C-987-04 CC. After
interlocutory decision A-008A-04 CC, Congress sent the amended bill to the
Constitutional Court. The Constitutional Court was to verify whether the Congress had
complied with the requirements of constitutionality imposed by the Constitutional Court
in judgment C-650-03 CC and interlocutory decision A-008A-04 CC. According to the
Constitutional Court, Congress had only partially complied with the modifications
required by the Constitutional Court. Holding the last word, the Constitutional Court
stated that it would proceed to deliver a final judgment on the process, despite the fact
913
According to the principle of preservation of the law, the Constitutional Court must be deferential to
statutory law because statutory law is a manifestation of democracy.
914
Interlocutory decision A-008A-04 CC [translated by the author].
307
that the process of presidential objections had been extended in order to promote
harmonic collaboration among state organs and to preserve legislative work.
It is worth observing that the Constitutional Court has the final say not only
because it delivers the final judgment, but also because this final judgment is based on
verification of Congress’ compliance with its first judgment. Therefore, the
Constitutional Court perceives itself as the main and last authorized interpreter of the
Constitution. It claims that it is involved in a dialogue with Congress, but the claim is
disingenuous.
Attributing jurisdiction to two organs of the state, simultaneously and on the same
subject matter, with equal hierarchal status for both organs
In Bernardo Antonio García Hernández, judgment C-310-96 CC, 915 the Constitutional
Court had to decide the constitutionality of a statutory norm establishing a duty for the
Television National Commission to coordinate policies regarding the use of the
electromagnetic spectrum with the Ministry of Communications. The Constitutional
Court upheld the constitutionality of the provision and recognized the autonomous and
independent character of the Television National Commission. It explained that the
Television National Commission is not part of any of the three branches of the State, but
it is part of the State structure.
Nevertheless, the Constitutional Court held that both entities had equal authority
in determining the use of the electromagnetic spectrum. Indeed, the Constitutional Court
observed that television was the only form of communication media to use the
electromagnetic spectrum and, therefore, was the concern of the Ministry of
915
See also judgment C-350-97, declaring the authorization for the Minister of Communications to audit
the board of directors’ meetings of the TV national commission to be constitutional.
308
Communications. The Ministry of Communications also had to take care of radio and its
use of the spectrum. A technical coordination between authorities was thus necessary and
possible. Therefore, the policy regarding the use of the spectrum should, the
Constitutional Court said, be jointly determined .The Constitutional Court made clear that
this coordination should be developed along with, and not under the coordination of, the
Ministry of Communications. According to the Constitutional Court, the type of
collaboration and support established in the challenged norm was in accordance with the
constitutional mandate of harmonic collaboration. This judgment demonstrates that it is
possible, in light of the principle of harmonic collaboration, to participate simultaneously
in the same activity and coordinate the result of the activity by sharing authority over the
subject matter without a specific presupposed hierarchy. 916
The three high courts that have so far tensely coexisted are part of the judiciary,
one of the branches of government included in Article 113 of the Constitution, which
includes the principle of harmonic collaboration along with the separation of powers. If
the principle of harmonic collaboration has enabled the Constitutional Court to support
the shared exercise of authority without a presupposed hierarchy, one could imagine a
harmonic collaboration among the high courts in the following way:
1. While deciding cases under their jurisdiction, the Supreme Court of Justice and
the Council of the State can take into account the impact of the Colombian
Constitution in the interpretation and application of ordinary and administrative
norms.
916
The Constitutional Court did not give its opinion on what would happen if there were a conflict and the
two institutions could not agree.
309
2. The Supreme Court of Justice and the Council of State can recognize that they are
not exclusive interpreters of the effects that the Colombian Constitution has on the
interpretation of ordinary and administrative law. Accordingly, after these two
high courts have spoken, the Constitutional Court can also give its opinion on
how the Colombian Constitution would determine the outcome of ordinary and
administrative law cases via guardianship review of judicial decisions.
3. The Constitutional Court can recognize that its opinion in cases of judicial review
of judicial decisions is not binding in character on the other two high courts.
4. Due to the equal status that the three high courts would have in a dynamic of
dialogue, the Supreme Court of Justice and the Council of State can listen and
respond to what the Constitutional Court has said in the way they consider most
appropriate.
A question could be raised as to which judgment would be binding on the parties
if the high courts do not come to an agreement and whether, if it is not clear which
judgment is binding, the case remains undecided. The question is intractable.
Nonetheless, my dialogic proposal at least leaves the parties no worse off than they are
now when a conflicting coexistence of authority-claiming institutions exists. Moreover, it
potentially paves the way for the high courts to come to some sort of understanding in the
future that will allow individual cases to be resolved definitively.
310
7.3 Dialogue as an Aspiration
One could say that within a conceptual explanatory inquiry, such as the one conducted in
this thesis, one should renounce the concept of institutional dialogue for several reasons.
First, as previously noted, in the academic endeavours where dialogue has been referred
to, genuine dialogue does not exist. Second, the constitutional design of most countries
does not always present conditions for dialogue. Thus, based on Roach’s argument, in
this situation dialogue could not exist. Third, the clearest type of institutional interaction
is that of imbalance of power and not dialogue. 917
And yet, some scholars are still committed to the idea of institutional dialogue. 918
One could say that this commitment is due to their prescriptive approach to law.
Nonetheless, I suggest that the use of the metaphor of institutional dialogue,
notwithstanding the difficulties attendant in its implementation, is still worthwhile as part
of a descriptive and conceptual enterprise. I base my contention on N.E. Simmonds’s
concept of law.
Simmonds argues that an empirical concept of law is not separate from moral
ideals. According to Simmonds, our practices embody or express moral ideals. 919
Simultaneously, it is through our practices that we can determine the content of such
ideals. For instance, some ideals may conflict with each other and it would only be
through practice that the content of the conflicting ideals can be established. 920 It is only
917
See Leckey, supra note 690 at 239, 243, and 255.
918
Kent Roach and Mary Liston, for instance. This commitment to the notion of inter-institutional dialogue
exists even if they tend to favour more the Supreme Court than the Parliament.
919
See N.E. Simmonds, Law as Moral Idea (Oxford; New York: Oxford University Press, 2007) at 11, and
34-35.
920
Ibid at 145, 146, 147, and 190.
311
due to the moral ideals that exist in legal practice that the invocation of a rule as law is
enough of a justification for the use of coercive force for the implementation of law. 921
Thus, if law did not involve a moral ideal, judicial decisions would be based on a self-
justificatory argument: decisions would be supported by rules, rules would be part of law,
but law would be what officials arbitrarily determined it to be. 922 For Simmonds, the
content of the moral ideal present in our legal practice is freedom and independence from
the power of others within a political community. 923 Simmonds's theory, however, can
also be understood along the lines of different moral ideals or different archetypes of law.
This is because what is essential for law to exist, according to Simmonds, is the presence
of a moral ideal. This ideal, however, should not be already materialized or completed; it
is in a continuous process of becoming. 924 And the fact that this ideal is not fully attained
in practice, since there can be wicked laws or evil practices, does not change the nature of
law as moral ideal. 925
Simmonds argues that law’s archetype is liberty, and that some semblance of this
must be present for rules to be ‘law’ in the full and proper sense. 926 Mutatis mutandis, as
exemplified in Chapter VI, an archetype to which several scholars are still committed at
the state institutional level in case of conflict is institutional dialogue. Accordingly, I
explore the possibilities of state institutional dialogue within a descriptive and conceptual
project because, although law does not reject conflicting pluralism within the state, it
orients itself toward a dialogue-like institutional interaction when institutions within the
921
Ibid at 137-138.
922
Ibid at 170, 172 and 191.
923
Ibid at 143, and 186-187.
924
Ibid at 11 and 191.
925
Ibid at 63.
926
Ibid at 99-104.
312
state disagree. While the project is mainly conceptual and descriptive, it bears emphasis
that this in no way bars a moral ideal such as dialogue from playing a constitutive role
within it. Thus, I have endeavoured to determine what the necessary conditions for
dialogue are and how authority-claiming institutions can engage in them.
7.4 Conclusion
As far as the bearer of authority suspends its claim to authority in its communication with
others, dialogue will be possible. This possibility could exist in the Colombian example
of coexistence of high courts as simultaneous authority-claimants if, in light of the
principle of harmonic collaboration, the courts claim authority over the parties in the
ordinary process only and not over each other. A dialogue on the interpretation of the
scope of constitutional mandates in private and administrative law cases is possible if,
first, the Supreme Court of Justice and the Council of State renounce their monopoly on
ordinary and administrative law issues and allow the Constitutional Court to give its
opinion on how the Colombian Constitution influences the outcome of ordinary law
cases. Simultaneously, a dialogue can be achieved if the Constitutional Court does not
command the other two high courts in regard to constitutional law matters, but merely
gives them its point of view on how the Colombian Constitution can determine the
outcome, accepting that the other two high courts also have a role in how the Colombian
Constitution can determine the outcome of the ordinary cases under their review.
313
CONCLUSION
Hans Kelsen thought of law as a pyramidal structure. With this image in mind, and
aiming to safeguard the constitution as best possible, he proposed to create a
Constitutional Court in addition to the Supreme Court. Nevertheless, in some
jurisdictions that have adopted the Kelsenian model, an unforeseen interaction among
these high courts has resulted, paradoxically, in the denial of this pyramidal structure.
Indeed, the constitutional design proposed by Kelsen created an opportunity for legal
pluralism within the state, and threatens to undermine the structure of the model
envisioned by Kelsen.
The controversy among high courts in Colombia proves that the state is not
necessarily a site of legal monism. On the contrary, as illuminated by this thesis,
competing authority-claiming state institutions with equal standing can coexist. For
almost twenty years, the Colombian Constitutional Court has consistently claimed
jurisdiction to review judicial decisions issued by the Supreme Court of Justice and the
Council of State. The main argument the Constitutional Court presents for this stance is
that it is the guardian of the 1991 Constitution and that the 1991 Constitution, as
interpreted by the Constitutional Court, is the norm that should prevail in all judicial
decisions. Simultaneously, the Supreme Court of Justice and the Council of State have
been notoriously reluctant to submit to judicial review by the Constitutional Court. Their
central argument is that the Constitutional Court does not have authority to review their
judgments because, according to the 1991 Constitution, these high courts are the
maximum authorities of the ordinary and administrative jurisdiction, respectively.
314
When faced with examples such as that of Colombia, legal pluralists must reorient
their research lenses. As Gordon Woodman correctly points out, the fact that there is
pluralism within the state does not rule out the possibility that there is pluralism outside
of the state. The constitutive and complementary elements of SLP I have proposed in my
dissertation can illuminate a new inquiry that legal pluralists may fruitfully undertake.
These elements will help scholars to avoid the mistakes made by some early SLP
theorists. In light of these elements, for instance, legal pluralists will acknowledge that a
case of SLP can involve ideological differences although SLP can exist without such
differences in play. Moreover, in looking for a case of SLP, legal pluralists will not be
misled by the mere existence of an ideological tension among state institutions. It may be
the case that, despite their ideological differences, these institutions are not claiming
authority over the same subject matter. It could also be the case that a hierarchically
superior authority within the state is in charge of resolving the ideological difference,
which will signal a legal monist situation. Furthermore, legal pluralists will not depict a
situation where the state acknowledges the existence of laws outside of the state as a case
of SLP. This is the case, for example, where a state allows the use of religious laws or
indigenous jurisdiction within its territory, provided that proscribed limits on the
extension of these laws within the overall structure of state jurisdiction are respected.
Instead, legal pluralists will see in these examples the state’s claim of monopoly of law
since this state would argue that it is due to its permission that these laws can be part of
the law.
If SLP is a phenomenon worth studying, what can guide scholars in finding cases
to study? Constant disobedience of one state institution’s command(s) by other state
315
institutions is an important signal that SLP exists. As the Colombian example highlights,
disobedience goes hand-in-hand with competing claims of authority. It can be said that
although commands of state authorities are somehow easily identifiable, disobedience of
such commands is difficult to identify. Consequently, it will be complex for legal
pluralists to identify cases of SLP. Nonetheless, forms of disobedience such as the one-
way game of hide and seek between the Colombian Supreme Court and the
Constitutional Court or the long-term resistance to racial desegregation exhibited by the
State of Georgia and other states in the American South show that the opposite is true.
Disobedience can be so notorious that researchers will easily find signs which suggest the
existence of SLP.
The existence of SLP is also valuable for constitutional law scholars. By
accepting the possibility of SLP, these scholars will benefit from a new perspective for
understanding institutional interaction within the state. Constitutional law scholars may
worry about the conflicting dynamic accepting the presence of SLP could create within
the state. Nonetheless, as explored in my research, the tension deriving from competing
claims of authority will not necessarily end in disobedience among state institutions. I
demonstrated that institutional accommodation through dialogue is also possible.
Creating avenues for a genuine dialogic interaction among state institutions is the
challenge for constitutional law scholars. Authors such as Janet Hieberth have already
shown that this type of dialogue is possible in Canada. Colombian constitutional law
scholars now have the opportunity to distance themselves from their beliefs regarding the
primacy of one of the high courts that are in conflict in order to expand their research
316
horizons. These wider research horizons may help Colombian constitutional law scholars
understand how best to resolve the conflict.
My case study demonstrates that the interaction of the Colombian high courts is
an endemic case of SLP and, thus, that will not disappear by favouring one of these
courts in an academic discourse. Therefore, exploring as an avenue for institutional
dialogue the constitutional article that provides “harmonic collaboration” among state
institutions could be a fruitful task for Colombian scholars. If they develop this task, the
next time I interview the high courts, I may meet with the three of them not only at the
same Palace of Justice, but also within the same room. In this new scenario, we could
then have a rich colloquium in which the concepts that resonate through the arguments of
the courts are not “authority,” “obedience” and “last say.”
If genuine dialogue is embraced by the institutions in conflict within the state, it
will be evident that not all state actions are necessarily acts of authority, as observed by
J.S. Mill in the 19th century, and echoed by Leslie Green few decades ago. Authority, as
form of state action, can coexist with other dynamics that are not necessarily
characterized by hierarchy.
317
Bibliography
Canadian Legislation
Constitution Act ,1982
Foreign Legislation
American Legislation
Georgia Constitution of 1976.
United States Judiciary Act of 1789.
Colombian Legislation
1991 Colombian Constitution.
Decree 2067/91.
Decree 2591/91.
Colombian Constitutional Court Bylaws (Agreement 05/92).
Organic Statute of the Judiciary (Statute 270/96).
Decree 1382/00.
Constitutional Gazette 36, April 9th 1991, Constituent National Assembly, Fourth
Commission.
Constitutional Gazette 36, May 2nd 1991, Constituent National Assembly, Fourth
Commission.
318
Constitutional Gazette, April 4th 1991, Constituent National Assembly, Legislative
project.
Jurisprudence
Colombian Constitutional Court
T-006-92 CC.
T-223-92 CC.
T-413-92 CC.
T-474-92 CC.
T-538-92 CC.
T-555-92 CC.
T-556-92 CC.
T-572-92 CC.
SU-132-02 CC.
C-543-92 CC.
T-079-93 CC.
T-119-93 CC.
T-147-93 CC.
T-158-93 CC.
T-173-93 CC.
T-320-93 CC.
T-368-93 CC.
T-579-93 CC.
319
T-231-94 CC.
T-258-94 CC.
T-435-94 CC.
T-442-94 CC.
T-538-94 CC.
C-212-94 CC.
C-396-94 CC.
T-057-95 CC.
T-249-95 CC.
T-123-96 CC.
T-329-96 CC.
C-037-96 CC.
C-310-96 CC.
T-057-97 CC.
T-533-97 CC.
SU-478-97 CC.
T-295-98 CC.
SU-429-98 CC.
T-1017-99 CC.
SU-542-99 CC.
T-806-00 CC.
SU-1722-00 CC.
C-1506-00 CC.
320
A-027-01 CC.
T-1306-01 CC.
SU-014-01 CC.
SU-1184-01 CC.
SU-1185-01 CC.
SU-1219-01 CC.
A-031-02 CC.
T-082-02 CC.
T-254-02 CC.
T-780-02 CC.
T-1057-02 CC.
SU-613-02 CC.
C-251-02 CC.
T-441-03 CC.
T-461-03 CC.
T-663-03 CC.
T-678-03 CC.
T-1232-03 CC.
SU-120-03 CC.
SU-132-02 CC.
SU-1158-03 CC.
C-650-03 CC.
A-004-04 CC.
321
A-008A-04 CC.
T-428-04 CC.
T-606-04 CC.
T-774-04 CC.
T- 805-04 CC.
T-815-04 CC.
T-836-04 CC.
T-930-04 CC.
T-981-04 CC.
T-1226-04 CC.
C-246-04 CC.
T-013-05 CC.
T-098-05 CC.
T-109-05 CC.
T-272-05 CC.
T-282-05 CC.
T-296-05 CC.
T-328-05 CC.
T-469-05 CC.
T-516-05 CC.
T-635-05 CC.
T-748-05 CC.
T-779-05 CC.
322
T-902-05 CC.
T-920-05 CC.
C-590-05 CC.
A-003-06 CC.
A-060-06 CC.
A-229-06 CC.
T-016-06 CC.
T-167-06 CC.
T-254-06 CC.
T-708-06 CC.
A-138-07 CC.
T-045-07 CC.
T-070-07 CC.
T-104-07 CC.
T-117-07 CC.
T-118-07 CC.
T-230-07 CC.
T-231-07 CC.
T-358-07 CC.
T-391-07 CC.
T- 425-07 CC.
T-428-07 CC.
T-808-07 CC.
323
T-815-07 CC.
T-838-07 CC.
T-851-07 CC.
T-853-07 CC.
T-1055-07 CC.
A-100-08 CC.
A-233-08 CC.
T-018-08 CC.
T-341-08 CC.
A-045-09 CC.
A-116-09 CC.
A-117-09 CC.
A-118-09 CC.
A-119-09 CC.
T-051-09 CC.
T-301-09 CC.
SU-811-09 CC.
Colombian Supreme Court of Justice
File No.00l [December 1991] SCJ, Labour Chamber.
Judgment of the SCJ, Civil Chamber, acting as a guardianship judge in judgment T-006-
92 CC.
324
93 CC.
94 CC.
Judgment of the SCJ, Civil Chamber, acting as appellate judge in judgment T-057-95 CC.
Judgment of the SCJ acting as trial guardianship judge in judgment T-249-95 CC.
96 CC.
Judgment of the SCJ, Criminal Chamber, acting as a guardianship judge in judgment T-
533-97 CC.
Judgment of the SCJ, Criminal Chamber, acting as a guardianship judge in judgment SU-
478-97 CC.
Judgment of the SCJ, Civil Chamber, acting as a guardianship judge in judgment SU-
429-98 CC.
File No. 108 [22 July 1998] SCJ, Criminal Chamber.
Record No. 135 [8 September 1998] SCJ, Criminal Chamber.
File No. 6576, Record No. 195 [9 December1999] SCJ, Civil Chamber.
File No. 6772 [August 1999] SCJ, Civil Chamber.
Judgment of the SCJ acting as a guardianship judge in judgment T-1017-99 CC.
Judgment of the SCJ, Criminal Chamber, acting as a guardianship judge in judgment SU-
1184-01 CC.
File No. 10797 Record No. 11 [3 April 2000], SCJ, Labour Chamber.
File Nº 13396 Record Nº 11[19 March 2002] SCJ, Labour Chamber.
325
File No. 69 Record No. 12316 [October 2003] SCJ, Labour Chamber.
File No. 12316 Record No. 69 [October 2003] SCJ, Labour Chamber.
Judgment of the SCJ, Criminal Chamber, acting as a guardianship judge in judgment T-
759-03 CC.
Judgment of the SCJ acting as guardianship judge in judgment T-001-04 CC.
Interlocutory decision in File1100102030002008-01749-00 [1 September 2009] SCJ,
Civil Chamber.
Interlocutory decision in Reference: guardianship action 42004[9 June 2009] SCJ,
Criminal Chamber.
Colombian Council of State
Judgment of the COS, Fourth Chamber, acting as guardianship judge in judgment T-117-
93 CC.
Judgment of the COS, First Chamber, acting as guardianship judge in judgment T-147-93
CC.
Judgment of the COS, Second Chamber, acting as guardianship judge in judgment T-057-
97 CC.
Reference No: 25000-23-24-000-2001-0890-01(AC-1017) [2001] COS, Subsection A.
Reference No: 25000-23-24-000-2001-0890-01(AC-1017) [30 August 2001] COS,
Second Chamber, Subsection A.
Judgment [18 July 2002] COS, First Section.
326
Reference No: 88001-23-31-000-2002-0006-01(AC-2931) [October 2002] COS, Second
Reference No: 11001-03-15-000-2002-0688-02(AC-159) [31 October 2002] COS,
Second Chamber, Subsection B.
Reference No AC-10203 [29 June 2004] COS.
Reference No: 11001-03-15-000-2004-00308-01(AC) [9 July 2004] COS, First Chamber.
Reference No: 110010315000200400270 [9 November 2004] COS, Full Chamber.
Reference IJ Num: 11001031500020040027001 [9 November 04] COS.
Reference No: 11001-03-15-000-2005-00960-00(AC) [6 October 2005] COS, Second
Chamber.
Reference: 11001-03-15-000-2005-00145-00(AC) [7 April 05] COS, Second Chamber.
Reference No: 11001-03-15-000-2005-01430-00(AC) [16 February 2006] COS, Second
Reference No: 25000-23-24-000-2006-00650-01(AC) [29 June 2006] COS, Full
Chamber.
Reference No: 11001-03-15-000-2006-00447-00(AC) [29 June 2006] COS, Fourth
Chamber.
Judgment of the COS, Second Chamber, acting as a guardianship judge in judgment T-
057-97 CC.
Reference: 11001-03-15-000-2005-01430-00(AC) [16 September 2006] COS, Second
Reference No 25000-2325-000-1998-5123-01(4361-02) [20 September 2006] COS, Full
Chamber.
327
Reference No: 11001-03-15-000-2005-00824-00(AC) [October 2006] COS, Fourth
Chamber.
Reference No: 11001-03-15-000-2006-01226-00(AC) [1 November 2006] COS, Second
Chamber, Subsection B.
Reference No: 11001-03-15-000-2005-01430-00(AC) [16 December 2006] COS, Second
Reference No: 11001-03-15-000-2006-01238-01(AC) [1 March 2007] COS, First
Chamber.
Reference No: 11001-03-15-000-2006-01318-01(AC) [27 March 2007] COS, Second
Reference No: 11001-03-15-000-2006-01318-01(AC) [29 March 2007] COS, Second
Reference No: 11001-03-15-000-2007-00560-00(AC) [5 June 2007] COS, Second
Reference No: 1001-03-15-000-2007-00498-00(AC) [12 July 2007] COS, Subsection A.
Reference No: 11001-03-15-000-2007-00753-00(AC) [19 July 2007] COS, Second
328
Reference No: 11001-03-15-000-2007-00751-00(AC) [23 August 2007] COS, Subsection
A.
Reference No: 11001- 03-15-000-2007-01009- 00(AC) [27 September 2007] COS,
Second Chamber, Subsection B.
Reference No: 11001-03-15-000-2007-00934-00(AC) [27 September 2007] COS, Section
A.
Reference: 11001-03-15-000-2005-00824-00(AC) [October 2006] COS, Fourth
Chamber.
Reference No: 11001-03-15-000-2007-01050-00(AC) [11 October 2007] COS, Second
Reference No: 11001-03-15-000-2007-01026-00(AC) [11 October 2007] COS.
Reference No: 1101-03-15-000-2007-00441-01(AC) [15 November 2007] COS, First
Chamber.
United States Supreme Court
Worcester v. Georgia, 31 U.S. 515 (1832).
Plessy v. Ferguson, 163 U.S. 537 (1896).
Brown et al. v. Board of Education of Topeka et al. 344 U.S. (1953).
Brown v. Board of Education of Topeka 349 U.S. (1955).
Inter-American Commission on Human Rights
Inter-American Commission on Human Rights, "Report Nº 44/08, case 12.448, merits,
Sergio Emilio Cadena Antolinez v. Colombia" online: Inter-American
Commission on Human Rights
<http://www.cidh.org/annualrep/2008eng/Colombia12.448eng.htm>.
329
Secondary material: Monographs
The Dialogue Forum Handbook (Vancouver: Simon Fraiser University, 2005).
The Dialogue Forum reflections (Vancouver: Simon Fraiser University, 2005).
Allan, Trevor R. S., Constitutional Justice: A Liberal Theory of the Rule of Law (New
York: Oxford University Press, 2003).
Arendt, Hannah, "What Was Authority?" in Carl Joachim Friedrich, ed, Authority
(Cambridge, Massachusetts: Harvard University Press, 1958).
Arthurs, Harry W., 'Without the Law' Administrative Justice and Legal Pluralism in
Nineteenth-Century England (Toronto and Buffalo: University of Toronto Press,
1985).
Bakhtin, Mikhail, Problems of Dostoevsky's Poetics, vol. Volume 8, translated by Caryl
Emerson (Minneapolis, London: University of Minnesota Press, 1984).
Bayles, Michael D., "A Concept of Coercion" in Roland Pennock and John W. Chapman,
ed, Coercion (Chicago, New York: Aldine. Atherton, 1972).
Belley, Jean-Guy, “Le Pluralisme Juridique de Roderick Macdonald: une Analyse
Séquentielle”, in Guy Rocher, Roderick Macdonald, André Lajoie and Richard
Janda, eds, Théories et Émergence du Droit: Pluralisme, Surdétermination et
Effectivité (Montreal: Les Éditions Thémis, 1997).
Bickel, Alexander M., The Least Dangerous Branch: The Supreme Court at the Bar of
Politics (Indianapolis: Bobbs-Merrill, 1962).
Binder, Guyora and Weisbeirg Binder, Robert, Literary Criticism of Law (Princeton:
Princeton University Press, 2000).
Bohm, David, On Dialogue (London, New York: Routledge, 1996).
330
Bracton, Henry, Bracton on the Laws and Customs of England, translated by Samuel E.
Thorne (Cambridge, Mass.: Belknap, in association with the Selden Society, 1968).
Buber, Martin, I and Thou (New York: Charles Scribner's Sons, 1970).
Buber, Martin, Between Man and Man (Taylor & Francis, 2002), online:
<http://lib.myilibrary.com?ID=5328>.
Carothers, Thomas, "Rule of Law Temptations" in James J. Heckman, Robert L. Nelson
and Lee Cabatingan, eds, Global Perspectives on the Rule of Law (London ; New
York: Routledge, 2010).
Constable, Marianne, The Law of the Other: the Mixed Jury and Changing Conceptions
of Citizenship, Law, and Knowledge (Chicago: University of Chicago Press, 1994).
Costa, Pietro, "The Rule of Law: A Historical Introduction" in Pietro Costa and Danilo
Zolo, eds, The Rule of Law: History, Theory and Criticism (Dordrecht: Springer,
2007).
De George, Richard T., "The Nature and Function of Epistemic Authority" in R. Baine
Harris, ed, Authority: A Philosophical Analysis (Alabama: The University of
Alabama Press, 1976).
De Lange, Roel, "Divergence, Fragmentation and Pluralism" in Hanne Petersen and
Henrik Zahle, eds, Legal Polycentricity, Consequences of Pluralism in Law
(Brookfield, Vt.: Dartmouth Pub. Co., 1995).
Dicey, A. V., Introduction to the Study of the Law of the Constitution, Seventh ed
(London: Macmillan and Co., Limited, 1908).
Douglas, Mary, How Institutions Think (Syracuse: Syracuse University Press, 1986).
331
Dubois Cook, Samuel, "Coercion and Social Change" in R. Pennock and John W.
Chapman, eds, Coercion (Chicago, New York: Aldine. Atherton Inc., 1972).
Dworkin, Ronald, A Matter of Principle (Cambridge: Harvard University Press, 1985).
Dyzenhaus, David, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Herman
Heller in Weimar (New York: Oxford University Press, 1997).
_______________ The Constitution of Law: Legality in a Time of Emergency (New
York: Cambridge University Press, 2006).
Fox-Decent, Evan, Sovereignty's Promise: The State as Fiduciary (Oxford: Oxford
University Press, Forthcoming 2011).
Fuller, Lon L., The Morality of Law (New Haven: Yale University Press, 1969).
Gaskin, J. C. A., ed, Leviathan (Oxford: Oxford University Press, 1998).
Gilissen, John, "Introduction à l'Étude Comparée du Pluralisme Juridique" in John
Gilissen, ed, Le pluralisme juridique : Études Publiées sous la Direction de John
Gilissen (Bruxelles: Editions de l'Université de Bruxelles, 1972).
Graumann, Carl F., "Perspectival Structure and Dynamics in Dialogues" in Ivana
Marková and Klaus Foppa, eds, The Dynamics of Dialogue (Great Britain:
Springer-Verlag, 1991).
Green, Leslie, The Authority of the State (New York: Oxford University Press, 1988).
Green, Leslie, "Who Believes in Political Obligation?" in William A. Edmundson, ed,
The Duty to Obey the Law: Selected Philosophical Readings (Maryland: Rowman
& Littlefield Publishers, 1999).
332
Green, Leslie, "Law and Obligations" in Jules Coleman and Scott Shapiro, eds, The
Oxford Handbook of Jurisprudence & Philosophy of Law (New York: Oxford
University Press, 2004).
Greenawalt, Kent, "Legitimate Authority and the Duty to Obey" in William A.
Edmundson, ed, The Duty to Obey the Law: Selected Philosophical Readings
(Lanham, Md. : Rowman & Littlefield Publishers, 1999).
Habermas, Jürgen, The Theory of Communicative Action, V. 1 Reason and the
Rationalization of Society, translated by Thomas McCarthy (Boston: Beacon Press,
1984).
Harris, J. W., "Kelsen and Normative Consistency" in Richard Tur and William Twining,
eds, Essays on Kelsen (Oxford: Oxford University Press, 1986).
Hart, H. L. A., Essays on Bentham: Studies in Jurisprudence and Political Theory (New
York: Oxford University Press, 1982).
___________, The Concept of Law, First ed (Oxford: Clarendon Press, 1997).
Hiebert, Janet, Charter conflicts: what is Parliament's role? (Montreal: McGill-Queen's
Hobbes, Thomas, The English Works of Thomas Hobbes, online: InteLex Corporation
<http://www.library.nlx.com/xtf/view?docId=hobbes/hobbes.00.xml >.
Hurd, Heidi M., Moral Combat, First ed (Cambridge; New York: Cambridge University
Press, 1999).
Janda, Richard, "Beyond Legal Pluralism", in Roderick Macdonald, André Lajoie and
Richard Janda, eds, Théories et Émergence du Droit: Pluralisme, Surdétermination
et Effectivité (Montreal: Les Éditions Thémis, 1997).
333
Kahn, Paul, The Cultural Study of Law, Reconstructing Legal Scholarship (Chicago and
London: The University of Chicago Press, 1999).
Kavanagh, Aileen, Constitutional Review Under the UK Human Rights Act (Cambridge,
New York: Cambridge University Press, 2009).
Kelsen, Hans, General Theory of Law and State, translated by Anders Wedberg
(Cambridge, Massachusetts: Harvard University Press, 1945).
___________ Pure Theory of Law: Translation from the Second (Revised and Enlarged)
German Edition, translated by Max Knight (Berkeley, Los Angeles, London:
University California Press, 1967).
__________ Introduction to the problems of legal theory: a Translation of the First
Edition of the Reine Rechtslehre or Pure Theory of Law, Bonnie Litschewiski
Paulson and Stanley L. Paulson (New York: Oxford University Press, 1992).
__________ Qui Doit Être le Gardien de la Constitution?, translated by Sandrine Baume
(Paris: Michel Houdiard, 2006).
Kronman, Anthony T., Max Weber (London: E. Arnold, 1983).
Kruse, Kevin Michael, White flight: Atlanta and the Making of Modern Conservatism
(Princeton, N.J.: Princeton University Press, 2005).
Lakoff, George and Mark Johnson, Metaphors we live by (Chicago: The University of
Chicago Press, 2003).
Leckey, Robert, Contextual Subjects (Toronto: University of Toronto Press, 2008).
León, Juanita, Country of Bullets: Chronicles of War, translated by Guillermo Bleichmar
(Albuquerque: University of New Mexico Press, 2009).
334
Levinas, Emmanuel, Otherwise than Being or Beyond Essence, translated by Alphonso
Lingis (The Hague: Martinus Nijhoff Publishers, 1981).
López Medina, Diego Eduardo, Teoría Impura del Derecho: La Transformación de la
Cultural Jurídica Latinoamericana (Bogotá: Legis Editores, 2004).
Macdonald, Roderick A., "Critical Legal Pluralism as a Construction of Normativity and
the Emergence of Law" in A. Lajoie, R. A. MacDonald, R. Janda and G. Rocher,
eds, Théories et Émergence du Droit: Pluralisme, Surdetérmination et Effectivité
(Montreal: Les Éditions Thémis 1998).
Nikulin, Dimitri, On Dialogue (Lanham, Maryland: Lexington Books, 2006).
Pennock, Roland, "Coercion: An Overview" in Roland Pennock and John W. Chapman,
eds, Coercion (Chicago, New York: Aldine. Atherton Inc., 1972).
Pettit, Philip, Republicanism: A Theory of Freedom and Government (Oxford: Oxford
Posner, Richard A., Law and Literature, Revised and Enlarged Edition 3d ed
(Cambridge, Massachusetts, and London, England: Harvard University Press,
1998).
Rawls, John, "The Justification for Civil Disobedience" in William A. Edmundson, ed,
The Duty to Obey the Law: Selected Philosophical Readings (Maryland: Rowman
& Littlefield Publishers, 1999).
___________Political Liberalism (New York: Columbia University Press, 2005).
Raz, Joseph, The Morality of Freedom (Oxford: Oxford University Press, 1988).
__________ Ethics in the Public Domain: Essays in the Morality of Law and Politics
(Oxford: Clarendon Press, 1994).
335
__________ "The Obligation to Obey: Revision and Tradition" in William A.
__________ The Authority of Law, Second ed (New York: Oxford University Press,
2009).
Reiman, Jeffrey, In Defense of Political Philosophy; a Reply to Robert Paul Wolff’s In
Defense of Anarchism (New York: Harper and Row, 1972).
Roach, Kent, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue
(Toronto: Irwin Law, 2001).
Romano, Santi, L'Ordre Juridique, translated by Lucien François and Pierre Gothot
(Paris: Dalloz, 1975).
Santorius, R., "Political Authority and Political Obligation" in William A. Edmundson,
ed, The Duty to Obey the Law: Selected Philosophical Readings (Lanham, Md.:
Rowman & Littlefield Publishers, 1999).
Santos, Boaventura de Sousa, Toward a New Common Sense: Law, Science and Politics
in the Paradigmatic Transition (New York: Routledge, 1995).
____________ Toward a New Legal Common Sense: Law, Globalization and
Emancipation (London: Butterworths LexisNexis, 2002).
____________ Democratizing Democracy: Beyond the Liberal Democratic Canon, vol. I
(London, New York: Verso, 2005).
___________ The Leviathan in the State Theory of Thomas Hobbes (Chicago: The
University of Chicago Press, 1996).
336
Simmonds, N. E., Law as Moral Idea (Oxford; New York: Oxford University Press,
2007).
Simmons, A. John, Moral Principles and Political Obligations (New Jersey: Princeton
___________ Justification and Legitimacy: Essays on Rights and Obligations
(Cambridge; New York: Cambridge University Press, 2001).
Smith, M. B. E., "Is there a Prima Facie Obligation to Obey the Law?" in William A.
Edmondson, eds, The Duty to Obey the Law: Selected Philosophical Readings
Soper, Philip, A Theory of Law (Cambridge: Harvard University Press, 1984).
Stone Sweet, Alex, Governing with Judges: Constitutional Politics in Europe (Oxford:
Oxford University Press, 2000).
Tamanaha, Brian Z., A General Jurisprudence of Law and Society (New York: Oxford
____________ On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge
Taylor, Charles, "Alternative Futures: Legitimacy, Identity and Alienation in Late
Twentieth Century Canada" in Alan Cairns and Cynthia Williams, eds,
Constitutionalism, Citizenship and Society in Canada (Toronto: Toronto University
Press, 1985).
_____________ "The Dialogical Self" in David R. Hiley, James F. Bohman and Richard
M. Shusterman, eds, The Interpretive Turn: Philosophy, Science, Culture (Ithaca
and London: Cornell University Press, 1991).
337
Vanderlinden, Jaques, "Le Pluralisme Juridique" in John Gilissen, ed, Le Pluralisme
Juridique : Études Publiées sous la Direction de John Gilissen (Bruxelles :
Editions de l'Université de Bruxelles, 1972).
Vinx, Lars, Hans Kelsen's Pure Theory of Law: Legality and Legitimacy (New York:
Oxford University Press, 2007).
Weber, Max, Economy and Society: an Outline of Interpretive Sociology, vol 1, Guenther
Roth and Claus Wittich eds, Ephraim Fischoff et al. trans (Berkeley: University of
California Press, 1978).
Weinstein, Michael A., "Coercion, Space and the Modes of Human Domination" in
Ronald Pennock and John W. Chapman, eds, Coercion (Chicago, New York:
Aldine. Atherton, 1972).
Wellman, Christopher H. and A. J. Simmons, Is there a Duty to Obey the Law?
(Cambridge: Cambridge University Press, 2005).
Wertheimer, Alan P., "Political Coercion and Political Obligation" in Ronald Pennock
and John W. Chapman, eds, Coercion (Chicago, New York: Aldine. Atherton Inc.,
1972).
White, James Boyd, Justice as Translation: An Essay in Cultural and Legal Criticism
(Chicago: The University of Chicago Press, 1990).
____________ "Imagining the Law" in Austin K. Sarat and Thomas Kearns, eds, The
Rhetoric of Law (Ann Arbor: The University of Michigan Press, 1994).
Winter, Steven L., A clear in the Forest: Law, Life and Mind (Chicago: Cambridge
338
Wolff, Robert Paul, "The Conflict Between Authority and Autonomy" in William A.
Woodman, Gordon, "The Idea of Legal Pluralism" in Baudouin Dupret, Maurits Berger,
Laila al-Zwain, eds, Legal Pluralism in the Arab World (The Hague: Kluwer Law
International, 1999).
Woodman, Gordon R., "The Possibilities of Co-existence of Religious Laws with Other
Laws" in Rubya Mehdi, et al., eds, Law and Religion in Multicultural Societies
(Copenhagen: DJØF Pub., 2008).
Secondary material: Articles
"Corte Constitucional le baja el Tono a choque de trenes con la Corte Suprema", online:
El Tiempo <http://www.eltiempo.com/colombia/justicia/2008-09-01/ARTICULO-
WEB-PLANTILLA_NOTA_INTERIOR-4494448.html>.
"Comunicado de Prensa 062", (2008) online: Presidencia de la República de Colombia
<http://web.presidencia.gov.co/comunicados/2008/enero/62.html>.
"Cortes Logran Preacuerdo sobre manejo de tutelas contra sentencias para Acabar
'Choque de Trenes'", online: El Tiempo
<http://www.eltiempo.com/colombia/justicia/cortes-logran-preacuerdo-sobre-
manejo-de-tutelas-contra-sentencias-para-acabar-choque-de-trenes_4700504-1>.
339
"‘Deben Acabarse los Choques de Trenes’: Pinilla", online: La República
<http://www.eleccionvisible.com/index.php?option=com_content&view=article&i
d=286:qdeben-acabarse-los-choques-de-trenesq-pinilla-
&catid=3:prensa&Itemid=24>.
"Gobierno Anuncia Ofensiva Militar Contra las FARC", (2009) online: Caracol Noticias
<http://www.caracol.com.co/nota.aspx?id=787449>.
Airaksinen, Timo, "Coercion, deterrence, and authority" (1984) 17:2 Theory and
Decision 105.
Amat, Yamid, "Se alista Cumbre de Cortes para Acabar con el "choque de trenes"",
online: El Tiempo <http://www.eltiempo.com/justicia/2008-02-17/ARTICULO-
WEB-NOTA_INTERIOR-3961723.html>.
Amat, Yamid, "‘Hay que Buscar la Justicia Social como un Mecanismo Hacia la Paz’:
Nilson Pinilla", online: El Tiempo
<http://www.eltiempo.com/colombia/justicia/hay-que-buscar-la-justicia-social-
como-un-mecanismo-hacia-la-paz-nilson-pinilla_4800597-1>.
Burnham, William and Alexei Trochev, "Russia's War between the Courts: The Struggle
Over the Jurisdictional Boundary between the Constitutional Court and Regular
Courts" (2007):55 American Journal of Comparative Law 381.
Christiano, Tom, "Authority", (2008) online: The Stanford Encyclopedia of Philosophy
<http://plato.stanford.edu/archives/fall2008/entries/authority/>.
Copp, David, "Hobbes on Artificial Persons and Collective Actions" (1980) 89:4 The
Philosophical Review 579.
340
Craig, Paul, "Formal and Substantive Conceptions of the Rule of Law: An Analytical
Framework" (1997) Public Law 467.
Ferro, Juan Guillermo and Graciela Uribe, "Las Contradicciones Políticas Presentes en
las Marchas de los Cocaleros del Departamento de Caquetá, Colombia (1996)"
(2002) 49 Cuadernos de Desarrollo Rural 59.
Gardbaum, Stephen, "Reassessing the new Commonwealth model of constitutionalism"
(2010) 8:2 ICON 167.
Garibello, Andrés, "Para Desactivar el 'choque de trenes', Presidente de Corte
Constitucional revela una propuesta", (2007) online: El Tiempo
<http://www.eltiempo.com/justicia/2007-10-15/ARTICULO-WEB-
NOTA_INTERIOR-3766572.html>.
Garlicki, Lech, "Constitutional Courts versus Supreme Courts" (2007) 5:1 International
Journal of Constitutional Law 44.
Goodrich, Peter, "Law and Language: An Historical Critical Introduction" (1984) 2
Journal of Law and Society 173.
Green, Leslie, "Support for the System" (1985) 15:2 British Journal of Political Science
127.
Griffiths, John, "What is Legal Pluralism?" (1986) 24 Journal of Legal Pluralism and
Unofficial Law 1.
Haigh, Richard and Michael Sobkin, "Does the Observer Have an Effect: An Analysis of
the Use of the Dialogue Metaphor in Canada's Courts" (2001) 45:67 Osgoode Hall
Law Journal 67.
341
Himma, Kenneth Einar, "Just 'Cause you're Smarter than me doesn't give you a right to
tell me what to do: Legitimate Authority and the Normal Justification Thesis."
(2007) 27:1 Oxford Journal of Legal Studies 121.
Hogg, Peter W. and Allison A. Bushell, "The Charter Dialogue Between Courts and
Legislatures (Or Perhaps The Charter of Rights Isn't Such a Bad thing After All)"
(1997) 35:1 Osgoode Hall Law Journal 75.
________ "Reply to "Six Degrees of Dialogue"" (1999) 37:3 Osgoode Hall Law Journal
529.
Hogg, Peter W., Allison A. Bushell Thorton and Wade K. Wright, "Charter Dialogue
Revisited - or Much Ado about Metaphors" (2007) 45:1 Osgoode Hall Law Journal
1.
______________ "A Reply on "Charter Dialogue Revisited"" (2007) 45:1 Osgoode Hall
Law Journal 193.
Huscroft, Grant, "Constitutionalism from the Top Down" (2007) 45 Osgoode Hall Law
Journal 91.
Kelsen, Hans, "La Garantie Juridictionnelle de la Constitution: La Justice
constitutionnelle" (1928?) 44 Revue du Droit Public et de la Science Politique en
France et à L'étranger 197.
_____________ "Judicial Review of Legislation: A Comparative Study of the Austrian
and the American Constitution" (1942) 4:2 The Journal of Politics 183.
Longaker, Richard P., "Andrew Jackson and the Judiciary" (1956) 71:3 Political Science
Quarterly 341.
Macdonald, Roderick A., "Les Vieilles Gardes" (1995) 16 Droit et Société 233.
342
___________________, "Metaphors of multiplicity: Civil Society, Regimes and Legal
Pluralism" (1998) 15:1 Arizona Journal of International and Comparative Law 69.
Macdonald, Roderick A. and Martha Marie Kleinhans, "What is a Critical Legal
Pluralism?" (1997) 12 Canadian Journal of Law and Society 25.
Manfredi, Chirstopher P., "Life of a Metaphor: Dialogue at the Supreme Court, 1998-
2003" (2004) 23 The Supreme Court Law Review 105.
_________________, "The Day the Dialogue Died: A Commentary on Sauvé v. Canada"
(2007) 45:1 Osgoode Hall Law Journal 105.
Manfredi, Chirstopher P. and James B. Kelly, "Six Degrees of Dialogue: A Response to
Hogg and Bushell" (1999) 37:3 Osgoode Hall Law Journal 513.
Martin, Margaret, "Raz's Morality of Freedom: Two Conceptions of Authority" (2009,
Draft) online: University of Western Ontario <
http://www.law.uwo.ca/publiclaw/PublicLaw_Documents/Martin_Raz_Morality.pd
f>
Mathen, Carissima, "Dialogue Theory, Judicial Review, and Judicial Supremacy: A
Comment on Charter Dialogue Revisited" (2007) 45 Osgoode Hall Law Journal
125.
Merry, Sally E., "Legal Pluralism" (1988) 22 Law & Society Review 869.
Miles, Edwin A., "After John Marshall's Decision: Worcester v. Georgia and the
Nullification Crisis" (1973) 39:4 The Journal of Southern History 519.
Paulson, Stanley L., "Constitutional Review in the United States and Austria: Notes on
the Beginnings" (2003) 16:2 Ratio Juris 223.
343
Petter, Andrew, "Taking Dialogue Theory Much too Seriously (or Perhaps Charter
Dialogue Isn't Such a Good Thing after all)" (2007) 45 Osgoode Hall LJ 147.
Ralf, Michaels, "The Re-state-ment of Non-State Law: The State, Choice of Law, and the
Challenge from Global Legal Pluralism" (2005) 51 Wayne Law Review 1209.
Ramírez, María Clemencia, "The Politics of Recognition and Citizenship in Putumayo
and in the Baja Bota of Cauca: The Case of the 1996 cocalero movement", (2001)
online: Reinventing Social Emancipation
<http://www.ces.fe.uc.pt/emancipa/research/en/ft/marchas.html>.
Roach, Kent, "Remedial Consensus and Dialogue Under the Charter: General
Declarations and Delayed Declarations of Invalidity" (2002) 35 University of
British Columbia Law Review 211.
___________ "Dialogic Judical Review and its Critics" (2004) 23:2 Supreme Court Law
Review 49.
___________ "Constitutional, Remedial, and International Dialogues About Rights: The
Canadian Experience" (2005) 40:3 Texas International Law Journal 537.
___________ "Dialogue or defiance: Legislative reversals of Supreme Court decisions in
Canada and the United States" (2006) 4:2 International Journal of Comparative
Law 347.
___________"A Dialogue About Principle and a Principled Dialogue: Justice Iacobucci's
Substantive Approach to Dialogue" (2007):57 University of Toronto Law Journal
449-477.
___________"Sharpening the Dialogue Debate: The Next Decade of Scholarship" (2007)
45:1 Osgoode Hall Law Journal 169.
344
Runciman, D., "What kind of person is Hobbes's state? A response to Skinner" (2000) 8:2
The Journal of Political Philosophy 268.
Santos, Boaventura de Sousa, "The Heterogeneous State and Legal Pluralism in
Mozambique" (2006) 40:1 Law & Society Review 39.
Shahar, Ido, "State, Society and the Relations Between Them: Implications for the Study
of Legal Pluralism" (2008) 9 Theoretical Inquiries in Law 417.
Skinner, Quentin, "Hobbes and the Purely Artificial Person of the State" (1999) 7:1 The
Journal of Political Philosophy 1.
Slattery, Brian, "A Theory of the Charter" (1987) 25:4 Osgoode Hall Law Journal 701.
Summer, Robert S., "A formal Theory of the Rule of Law" (1993) 6:2 Ratio Juris 127.
Tamanaha, Brian Z., "The Folly of the "Social Scientific" Concept of Legal Pluralism"
(1993) 20:2 Journal of Law and Society 192.
_______________, "Understanding Legal Pluralism: Past to Present, Local to
Global"(2008) online: St John’s University, School of Law, legal studies research
paper series (SSRN)
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1010105>.
Teubner, Gunther, "The Two Faces of Janus: Rethinking Legal Pluralism" (1991-1992)
13 Cardozo Law Review 1444.
Torres, Nancy, "Corte Constitucional Estudia Fórmula para Acabar con Choque de
Trenes", online: CM&
<http://www.cmi.com.co/contenido/Noticia.asp?nota=22499&seccion=7>.
345
Tremblay, Lucy B., "The Legitimacy of Judicial Review: The limits of Dialogue Between
Courts and Legislatures" (2005) 3:4 International Journal of Constitutional Law
617.
Vanderlinden, Jaques, "Return to Legal Pluralism: Twenty Years Later" (1989) 28
Journal of Legal Pluralism 149.
_________________, "Vers une Nouvelle Conception du Pluralisme juridique" (1993)
XVIII Revue de la Recherche Juridique - Droit Prospectif 573.
White, James Boyd, "Law as Rhetoric, Rhetoric as Law" (1985) 52 University of
Chicago Law Review 684.
_____________ "Thinking About our Language" (1987) 96 Yale Law Journal 1960.
White, James Boyd and Ball White, Milner, "Dialogue: A Conversation Between Milner
Ball and James Boyd White" (1996) 8 Yale Journal of Law & the Humanities 466.
Woodman, Gordon R., "Legal Pluralism and the Search for Justice" (1996) 40 Journal of
African Law 152.
Woodman, Gordon R., "Book review of Legal Policentricity: Consequences of
Pluralism in Law Hanne Petersen and Henrik Zahle eds (Brookfield, Vt. :
Dartmouth Pub. Co., 1995)" (1997) 39 Legal Pluralism & Unofficial Law 155.
Woodman, Gordon R., "Ideological Combat and Legal Observation" (1998) 42 Journal of
Legal Pluralism and Unofficial Law 21.
346
Secondary material: Thesis
Liston, Mary Ann Catherine, Honest Counsel: Institutional Dialogue and the Canadian
Rule of Law (Doctor of Philosophy Thesis, University of Toronto Political Science
Department, 2007) [unpublished].
347

Lopez Cuellar, Nelcy - State Legal Pluralism: Between Conflict and Dialogue

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Lopez Cuellar, Nelcy - State Legal Pluralism: Between Conflict and Dialogue

Uploaded by

Copyright:

Available Formats

State Legal Pluralism: Between Conflict and Dialogue,

Insights from a Colombian Case

Nelcy López Cuéllar

Degree of Doctor in Civil Law

Montreal, Quebec, Canada

July. 21, 2011

© Nelcy López Cuéllar, 2011 All rights reserved

Señor mío y Dios mío

Pursuing a doctorate is a somewhat isolated process. Nonetheless, it would have been

impossible to pursue my doctorate in complete isolation. Numerous people and

bring my doctoral project to an end. To all of them, I am deeply thankful.

to my concepts of authority and institutional dialogue, respectively, caused me to better

My Yale friends, Sebastian and Or, helped me reshape my doctoral proposal. My

McGill friends supported me during my doctoral studies. Graciela, Melissa, Enrique,

staff was kind and welcoming day after day.

My sister, Mónica, opened her home in Canada to me during my first years of

a distance by being proud of my decision to pursue a doctorate. They understood the

McGill University and, in particular, the McGill Faculty of Law, provided me

Figure 1: Structure of the Colombian judiciary prior to 1991.. ........................................ 21

The question whether judicial decisions can be reviewed on constitutional grounds in

En Colombie, la question du contrôle de la constitutionnalité des décisions judiciaires a

Kelsen and the Constitutional Court

proposed an alternative to the American model of constitutional review. Kelsen’s

constitutionally authorised organs and according to constitutional procedural

struck down by the Constitutional Court.

In Kelsen’s model, decisions made by ordinary judges would not be reviewed by

courts has not been a peaceful one. 6

courts and several fundamental-rights-related substantive changes to its constitutional

fundamental constitutional rights; the establishment of a “guardianship” action to protect

jurisdiction - to act as a guardianship judge. That is to say, in Colombia every judge is

simultaneously a judge of his or her particular jurisdiction (ordinary or administrative)

and a constitutional judge competent to adjudicate matters involving fundamental

appellate guardianship judge would be a chamber of the corresponding departmental-

constitutional jurisdiction in Colombia is the Constitutional Court. As such, it can review

any guardianship judgment at its discretion. 9

guardianship review. 11 Accordingly, a plaintiff or a defendant in an ordinary or

judicial review of judicial decisions on constitutional grounds, the Supreme Court of

repeated insistence on compliance with its decisions.

perspective as a Constitutional Court law clerk, the disobedience of the Constitutional

between the Colombian high courts at an in-depth level because of a feeling of

indignation at what I perceived was a consistent violation of the 1991 Constitution. As

Constitutional Court’s judgments.

of the Colombian constitutional story.

controversy as one involving the coexistence of authority-claiming institutions within the

me to further specify the constitutive elements of SLP.

With a legal pluralist approach in mind, I address five questions in my dissertation. To

decisions constitutes a case of SLP. I answer this question affirmatively. Since

disobedience is related to the coexistence of authority-claiming institutions. I argue that

there is a necessary correlation between the coexistence of authority-claiming institutions

4) I enquire whether it is possible to have dialogue, as a form of accommodation, among

coexisting authority-claiming institutions, particularly state institutions. I argue that this

similar legal orders.

This Thesis’s Contribution

pluralism: the coexistence of authority-claiming institutions, on the one hand, and

disobedience and accommodation, as species of the lack of obedience, on the other.

My thesis is also of particular relevance to constitutional law theory. I address the

constitutive elements of dialogue, and the possibility of dialogue, among authority-

claiming institutions. This theoretical endeavour draws on the research of Canadian

in countries that have implemented the Kelsenian model of constitutional review. My

so far unexplored by Colombian scholars. In addition to furthering the understanding of

institutional dialogue in the Colombian setting.

Finally, my thesis underscores the usefulness of interdisciplinarity through the use

reveals SLP as a phenomenon of coexistence of authority-claiming institutions within the

important because, despite substantiating a theory of SLP within a legally hierarchical