The Two Discourses in Colombian Constitutional Jurisprudence: A New Approach to Modeling Judicial Behavior in Latin America
![handle is hein.journals/gwilr37 and id is 697 raw text is: THE TWO DISCOURSES IN COLOMBIAN
CONSTITUTIONAL JURISPRUDENCE: A NEW
APPROACH TO MODELING JUDICIAL BEHAVIOR
IN LATIN AMERICA
DAVID LANDAU*
I. INTRODUCTION
Understanding, explaining, and modeling judicial behavior is
important for the legal academic and the political scientist alike.
Because legal academics tend to be far more preoccupied with nor-
mative questions (Is this a good legal rule? How can it be
improved?), the task of formally defining judicial behavior has
fallen largely to the political scientists. A vision of the world that
privileges economic rationality has influenced political science,
even more than law, across a wide range of subfields including U.S.
politics, comparative politics, and foreign relations. Political sci-
ence's rational choice theory-the economic theory of politics-is
not so different from, but probably even more influential than, law
and economics in legal scholarship. In a manner of double coloni-
zation (economics taking over politics, and then politics taking
over law), fundamentally economic theories of human behavior
have dominated formal, modeled explanations of judicial behav-
ior. However, rational choice theory, although often a useful heu-
ristic for understanding certain aspects of judicial behavior, leaves
out too many of the factors that drive judges for it to hold such a
prominent place among theories of judicial behaviort That
* Law clerk for the Honorable Sandra L. Lynch, U.S. Court of Appeals for the First
Circuit. A.B. 2001, Harvard College; J.D. 2004, Harvard Law School. My sincerest thanks
to Christine Desan, Jonathan Miller, Duncan Kennedy, and Ramon Eduardo Madrinan
Rivera for their assistance with this project.
1. I am not alone in this view, even among economists. The great institutional econ-
omist, rational choice historian, and Nobel Prize winner Douglass North, for example, has
written that [e]fforts to explain the independent judiciary in an interest group perspec-
tive are simply unconvincing; thus, one must resort to ideology rather than traditional
rational choice theory in order to get a proper understanding. DouGLASs C. NORTH,
STRUCTURE AND CHANGE IN ECONOMIc HISTORY 56-57 (1981) (citations omitted). To
North, there is obviously something special about judges, as in his world, most social actors
are more easily explained via rational choice theory. I tend to agree with North that there
is something special about thejudicial role, but I also think that rational choice may be less
powerful-even to an understanding of politics-than is sometimes assumed.](ViewImageLocal?handle=hein.journals/gwilr37&div=25&collection=&method=preview&ext=.png&size=3)
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The Two Discourses in Colombian Constitutional Jurisprudence: A New Approach to Modeling Judicial Behavior in Latin America
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