Abstract

ROA ROA, JORGE ERNESTO. Judicial review, deliberation and democracy in Colombia: Jeremy Waldron hesitates in Bogotá. Rev. Derecho Estado [online]. 2019, n.44, pp.57-98. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n44.04.

Regarding the Jeremy Waldron's argument against judicial review of legislation, the article concludes that the four conditions (core of the case) necessary for a well-ordered society are too demanding for the Colombian democratic system. For this reason, Waldron's objections to the judicial review are not applicable to the Colombian case. Only an excessively minimalist interpretation of the core of the case society would allow to apply this criticism to the judicial review of legislation in Colombia.

In addition, Waldron's argument faces a paradox: a demanding interpretation of the four conditions (core of the case) leaves out most of the world's democracies. To the contrary, a flexible interpretation of these conditions increases the potential application of Waldron's objections but reduce its power. In contexts that barely meet the four minimum conditions, judicial review of legislation may be necessary and useful for the democratic system itself to overcome the inertial burdens and blind spots of the legislative process that undermines the effective protection of constitutional rights.

That means that even the core of the case democracies can fail due to the existence of inertial burdens and blind spots. These problems generate situations of violation or under-protection of rights that can be remedied through judicial review. In these cases, judges order direct remedies that cannot be criticized because the legislator himself is below expectations according to its role within the political organization.

Keywords : Democracy; Deliberation; Democratic Legitimacy; Judicial Review; Jeremy Waldron; Inertial Burdens; Blind Spots.

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