24 de marzo de 2015
THE MAIN ROL OF JUDGES IN THE MULTILEVEL CONSTITUTIONALISM AND THE DEMOCRATIC PRINCIPLE
“In the frame of the constitutional pluralism and inside the model of constitutional multilevel discourse, judges play a fundamental role. They are responsible to mark out the process that make possible articulate and harmonize the different juridical orders to reach the constitutional objectives of control and protection. In the multilevel model judges are responsible, among others, to set down and/or enforce the principles that will steer the interaction between the different legal orders as well as to decide the path that such interaction should take. In order to make it possible, in many occasions, judges should reinterpret the will of the lawmakers (national and international) or disassemble their decisions. It seems so, that judges –nationals and internationals- have taken an omnipotent outlook. This main role of the judges has been one of the capital justifications of the critiques to the multilevel model. According to the critics this judges’ leadership open the path towards the construction of a juristocracy that jeopardize the democratic principle. From our point of view, those critiques ignore the context in which the multilevel model is built and developed as well as the true content, scope and importance of the democratic principle nowadays. We believe that, at the end of the day, all that is needed is a proper and contextualized reading of the model, as well as of the principle, in order to prove that there is no real risk of crush out democracy as it has been said. In this short sketch, we will address these issues and we will try to point out the tension between, in one hand, the way how the multilevel model has been proposed and according to which, without any doubt, judges have a main role and, in the other, the guarantee of the democratic principle. For this purpose, we will talk very briefly about the role of the judges in the multilevel
* Lecturer, Universidad Externado de Colombia. PhD in international law.
** This document was originally written for the PhD training School organized by the COST Program International law between constitutionalization and fragmentation. Vrije Universiteit Amsterdam, its later version was presented at the workshop of the International Group of Law and Policy, Harvard Law Scholl in Doha. Paola Andrea Acosta Serie de documentos de trabajo n.º 2, Departamento de Derecho Constitucional, pp. 1-20 constitutionalism and then we will concentrate our attention in point out the main critiques to that role in order to do a rough sketch of some ideas that could help to think about an answer to such critiques.”