Jusphilosophical argumentation in the constitutional court: Its role in rebuilding law

Abstract

The Constitutional Court is the guardian and protector of the Colombian charter of fundamental rights, and in performing this obligation, it has undoubtedly played a progressive role by giving priority to the protection of social, economic and cultural rights. This task has involved constant confrontation with the other branches of government and some social sectors, who believe that it has played an excessively progressive role, outside the legal system, without addressing economic requirements, turning the law into the law of the judges. In examining this controversy, it is worthwhile to individually analyze certain positions taken by this entity with regard to specific rights and the type of argumentation that was used, and determine if they follow Hart’s tenets of judicial discretion or, conversely they consider Dworkin’s “Judge Hercules” analysis, or use both. In view of this, this article raises the following question: In 2011, what role did the Constitutional Court play with regard to protecting the territories of indigenous communities and ethnic cultural diversity?