Separation of powers and judicial activism: A discussion from the colombian constitutional court jurisprudence over a public policy

Abstract

The discussion about judicial activism has been based, in a great extent, on studies given under an AngloSaxon (especially American) perspective and, in many cases, from the social science discourse. These factors explain judicial activism as a deviation from the judicial function or as an excess of the judiciary. The analysis of the concepts used to characterize the judicial activism shows that they are dependent on a concept of the judicial activity limited to solving cases and the law in a positivistic way. This, on one side, not only contradicts judicial practice but the institutional framework of modern constitutional democracies, and, on the other, neglects the existence of nonpositivistic conceptions about law. The study is based on Colombia's constitutional court decisions on mining public policies.