Date: 19Sep 2019

Is Transformative Constitutionalism an Illusion? by Justice Carlos Bernal Pulido (Colombian Constitutional Court)

Courts and commentators have attributed to some constitutions a transformative commitment. This attribution gives rise at least to four puzzles: the conceptual, the possibility, the institutional, and the performance puzzles. The conceptual puzzle is how to understand ‘transformative constitutionalism’? The possibility puzzle is whether constitutionalism can be transformative. The institutional puzzle relates to what institutional arrangements are presupposed by the implementation of transformative constitutionalism. The final puzzle refers to the performance of transformative constitutionalism. There is disagreement in the literature concerning the extent to which transformative constitutions have actually produced the desired changes, or if they have become unintended sham constitutions.

This lecture undertakes a critical analysis of the four puzzles. As a result of the analysis, it makes two arguments. First, it proposes that transformative constitutionalism is, to a remarkable extent, actually an illusion. Second, it suggests a restatement of its essential tenets. In particular, the lecture advances a model of collaborative constitutionalism that highlights the functions of the legislature and the executive, and the contribution to the transformation of private and international powers, as well.

Carlos Bernal is Justice of the Colombian Constitutional Court (since May 2017) and an Associate Professor at Macquarie Law School (Sydney, Australia). His qualifications include a LL.B. from the University Externado of Colombia (Bogotá – Colombia) (1996), a S.J.D. from the University of Salamanca (Spain) (2001), and a M.A. (2008) and a Ph.D. in Philosophy (2011) from the University of Florida (U.S.A). He has held visiting professorships at the Faculties of Law of the Universities of Paris I (Sorbonne) and X (Nanterre), and the University of Leon (Spain), and Senior Research Fellowships at the Yale Law School, the Kings’ College Law School, and the Max Plack Institute for Comparative Public Law and International Law (Heidelberg).

His scholarship focuses on constitutional rights’ interpretation, comparative constitutional change, general jurisprudence –in particular on the intersection between social ontology and legal theory–, and the philosophical foundations of tort law.