Rodrigo Uprimny

Mauricio García-Villegas

(text not edited)

The purpose of this paper is to evaluate the emancipatory potential of some rulings of Colombian Constitutional Court. During the past nine years, the Court's leading role in Colombian political life has been acknowledged not only by those who support its labors, but also by its fiercest critics. Besides, in general terms, the court has been vigorous in its protection of the rights of individuals and minorities, as well as in its intention to keep the authorities and the powerful from abusing their power. The court's labors have been far-flung, not only because of the sheer number of rulings and the variety of subjects that it has addressed, but also because it has, to a certain degree, surprised Colombian society with its progressive orientation. This explains the fact that the court has won a certain amount of appreciation and prestige from social sectors and groups that are very critical of other state apparatus, but that perceive in the court's decisions some of the few real opportunities for truly protecting their rights.

The Colombian constitutional experience is atypical and it appears to be unrelated to counter-hegemony issues. On one hand, these cases arise in a contemporary liberal capitalist state and, on the other hand, they make use of the law, being the most essential instrument for domination in this state model. How has this been possible in Colombia? Is it not contrary to common sense to talk about counter-hegemonic emancipation coming from the state, rather like the ducks shooting at the hunters. Are we witnessing a sort of "hegemonic emancipation?" Additionally, Colombia has a severe armed conflict and violence that may suggest the inefficacy of all these attempts to reach social progress through judicial means. Our objective in this essay is to explain how, and with what limitations, these cases are significant in terms of emancipation, and how they have acquired unusual importance not only in Colombia but also in other semi-peripheral countries.

The organization of this essay largely follows from the methodology that we have employed. It was impossible to systematically evaluate the entire body of the court's work, but at the same time we felt it necessary to analyze, in empirical terms, the impact of its decisions. For this reason, we decided to combine theoretical reflection with case studies. Therefore, initially we present the most relevant positions in the theoretical debate regarding the potential to achieve social change through judicial decisions (Section I). This debate has been particularly intense in the United States. We found little on the subject in the semi-peripheral countries. In these conditions, we have tried to establish a "dialogue" between the arguments from this debate and the cases that we have studied from Colombian constitutional jurisprudence, all of this being colored by our analysis of social and institutional reality (Sections II and III). In this exercise, we endeavor to take advantage of the analytical richness of the theoretical discussion in central countries in order to develop a new theoretical framework that can be used to understand the relationship between the law and social emancipation in semi-peripheral countries, and in Colombia in particular, and the potential and limitations of constitutional justice in this respect (Sections IV and V).

We will study the emancipatory dimension of some decisions rendered by constitutional court judges in Colombia. This is a topic that is less specific than it seems at first glance. Beginning in the mid-1980s, judges have taken a leading role in a significant number of countries, to the point where some authors have spoken of a transferal of the task of democratic legitimization from political bodies to judicial ones (Santos, 2001ª). The judges in the limelight have been, on the one hand, criminal judges, in their struggle against political corruption and, on the other, constitutional judges, in their defense of fundamental rights. The Constitutional Courts have assumed particular importance in the countries of Eastern Europe and in others around the world that are in a process of democratic transition. These Courts have played a key political role, many times opposite to the role foreseen for them by the reigning political system and even at times in opposition to the logic of the capitalist marketplace. The judicialization of political conflicts, in turn, brings with it a politicization of judicial conflicts (Santos, 2001ª). The Constitutional Courts of Hungary and South Africa, are the best known examples, but other equally importance instances are India's Supreme Court, and those of Korea and Colombia, as we will show in this essay.

However, the counter-hegemonic character of legal protagonism should be analyzed with great care since the main international development agencies, which do not exactly represent a symbol of counter-hegemonic struggle, have dedicated the core of their resources for somewhat more than a decade now to promoting judicial authority. This caution is necessary above all in the sphere of ordinary justice, whether civil or criminal. In effect, a good part of these international resources are destined to increase the efficiency of those legal processes most necessary to the functioning of the capitalist market, and, therefore a prima facie empathy can be posited between judicial efficiency and hegemonic interests.

The situation of the constitutional judges appears to be different. In the first place they have not been the privileged beneficiaries of the economic resources mentioned above, and, in the second place, their decisions usually affect essential hegemonic interests, as we will see below in the Colombian case. Thus it is important not to confuse the meaning of these parallel developments: on the one side an increase in judicial efficacy intended primarily to protect globalized capitalist interests and, on the other, the judicial leadership role in the attack on corruption and violation of fundamental rights. Different and even contrary logics in general terms are involved, although in certain circumstances they can be mutually reinforcing.

The political assessment of judges is different in core countries that it is in semiperipheral countries. In the latter, a strong theoretical debate has taken place over the following questions: To what extent can progressive judicial rulings engender significant social change? Is the legal struggle in the courts a profitable strategy for social movements and for the political left? Is the law an efficacious instrument for social emancipation? These are some of the key questions of the debate on the judiciary and social change that took place during the 1980s in the United States. During the 1970s a good part of the political struggle was directed at achieving legal reform or obtaining judicial decisions that could counter discrimination. This strategy was known as the Civil Rights Movement. A decade later, academics debated the evaluation of this process (the civil rights experience). On one side were those authors who, from the sociology of law, supported the position that significant social changes could be won through judicial decisión. But those who led and encouraged this debate were the Critical Legal Studies (CLS); these scholars took a skeptical position concerning legal battles. In their opinion the struggle for civil rights did not bear the longed-for fruit.

Not everyone, however, agreed with this radical statement; two different positions can be identified: a radical and a moderate approach. The radicals argued that the legal strategy was an illusion (Tushnet, 1984; Balbus, 1977): on one hand it weakened the counter-hegemonic political struggle by diverting attention toward a legal reform process and, on the other, its efficacy for the collective ended up being minimal given the character of individual rights. According to the CLS, the civil rights strategy in the United States, instead of increasing individual protection, debilitated the political movement and renewed institutional legitimacy. The view of the moderate critics, however, was that despite the existence of a prevailing tendency toward domination, the law, at least at times, could favor social movements. Robert Gordon, for example, argued that "The categories, principles, and rhetoric of law and legal argument deliver real resources to get some leverage on social change" (1998ª: 653). In his opinion the passage of laws has not always benefited capitalists; also, although to a lesser extent, law has served workers, women, the poor, etc.; the marginalized might be able to turn the legal rhetoric to their advantage (1998:646). This is then, according to Trubek, a matter that is open to investigation and cannot be decided in advance through theoretical generalization (1977: 554). Agreeing with this view, the new critics of the 1990s believe that legal reforms of a social character and against discrimination can be a useful mechanism of political struggle. This position is generally held by minority rights advocates (Minow, 1987; Crenshaw, 1988) and by scholars representing the Legal Consciousness Studies approach (Ewick and Silbey, 1998; McCann, 1985; 1994). We develop here a third approach, close to the moderate view, that we name contextual. We argue that there are some contexts in which social emancipation through law may be achieved and some contexts that do not favor emancipation. Empirical research must be done in order to determine under what conditions this improvement of legal struggle is possible. We try to do so in this article.

In the semi-peripheral states the law/social-change debate may be posited in less instrumental terms than in the countries of the center. By this is meant that the debate is less close to the logic that links legal aims, means and results. This might have several explanations. The first grows out of the classic distinction between state and civil society: in the semi-periphery, this dichotomy —as well as its derivations: law/society, public/private, law/politics— is often even more problematic than it is in the core countries. As a consequence, the autonomy of the legal discourse with respect to other social and institutional discourses tends to be more precarious. The law, and particularly public law, has less autonomy from the political system. The legal system takes on in good measure the dynamic of the political system so that a type of isomorphism occurs between, on the one hand, political discourses that relate less to the representation of social interests than to mere ideological debates, and, on the other hand, legal norms that are due less to the technical requirements of social regulation than to the political necessities of institutional legitimization. The second reason is more specific and directly linked to the first: in these countries state law is a more precarious instrument of social influence than it usually is in the core countries. Two facts may illustrate this precariousness: one is the marked difference that exists between the law-in-books and the law-in-action. A good part of the law-in-books either fails in instrumental terms or is created to fulfill other aims that are undetectable at first glance. The second fact is that of legal pluralism, by which is meant the existence of a number of official and unofficial sources of regulation which, frequently are interrelated and interpenetrate in complex interactions.

Colombia follows this general tendency of the semi-peripheral countries in that the autonomy of the legal system is reduced, not only with respect to the political system, as an outcome of the political instrumentalization of law, but also with respect to the social system, as a result of the lack of effectiveness and the prevalence of legal pluralism over the official law. However, this tendency is accentuated in Colombia. Beyond the social anomie in politics that is characteristic of the entire subcontinent, there are three additional aggravating elements that are intimately interrelated. They include: 1) the relative failure of governments’ efforts to deepen social democracy both through agrarian reform (Findley, 1972: 923; Gros, 1988; Pinto, 1971) as well as by way of extending social rights; 2) the devaluation of the democratic system as a result of its militarization through the existence of states of exception and its strongly exclusive and clientalistic political character; and 3) the close relationship that is found in Colombia between the anomie of the political discourse and violence throughout the course of its political history (Pécaut, 1978, 1997; Deas, 1995) .

Three additional points of clarification attenuate this perhaps excessively politicized image of Colombian law in favor of the state. In the first place the hyper-legality of Colombian institutional life is related not only to an institutional strategy of legitimation but also to a civilian tradition that dates from independence and that has made possible a certain control of the executive power through legal decisions and the electoral system. The creation of the Constitutional Court, for example, would not have been possible without the existence of a strong tradition of judicial review in Colombia. In the second place and linked to the first point, it is important to bear in mind that the utilization of law with the aim of institutional legitimization in Colombia is effective only to the degree that at least a minimal level of instrumental efficacy is achieved (Edelman, 1971; Bourdieu, 1986: 14). The fact that a current strategy of political legitimization is making the law live up to its claims and ambitions, that is, making law efficacious, cannot be overlooked. Finally, and this is the most germane to the subject of this essay, it has to be remembered that, although the production of law with legitimizing intentions has been a more or less fruitful strategy of social domination, it is also a double-edged sword. The symbols of social change and protection of rights that it embodies may be appropriated by social movements, individuals or even by state institutions, and particularly by judges, who could take the law seriously and use it as an instrument of resistance or emancipation from hegemonic power. In this case the legal strength of the state might be a useful element to articulate emancipatory social practices, or at least to stimulate practices of resistance to hegemonic power. The Constitutional Court moves, therefore in this border zone between institutional weakness and emancipatory social practices.

The Colombian Constitutional Court's progressive activism awakens at least the following question. Bearing mind that the few comparative studies that exist on judicial institutions underline that the courts and the law tend to be conservative and to reflect and protect the existing dominant interests, what elements could therefore explain the Colombian Constitutional Court's progressive tendency and prominent role? There is no easy answer, but there are some elements that could explain this evolution.

The Constitutional Court was created under the new Constitution that the Constituent Assembly approved in 1991. However, Colombia already had a long tradition of judicial control over constitutionality. Going back to at least 1910, the Supreme Court of Justice was granted the binding authority to rule on a law's constitutionality. In consequence, when the Constitutional Court began operating in 1992, the Colombian legal and political culture was already very familiar with the judicial review, to the point that few in the Colombian judicial community thought it strange that this court had the power to annul laws that had been approved by Congress. The court could therefore act vigorously, without fear that the executive branch or the political forces would decide to shut it down, as has happened in other countries in which the first task that constitutional courts have faced has been to win legitimacy for its underdog role.

Secondly, procedural design has meant that in Colombia access to constitutional justice is very easy and not costly. Thus, since 1910, the public action has existed, by virtue of which any citizen may ask that any law be declared unconstitutional, without being a lawyer or having any particular interest in the issue. The 1991 Constitution also created the tutela, by virtue of which any person may, without any special requisites, directly request that a judge intervene to protect his or her fundamental rights. It is relatively easy for citizens to transform a complaint into a legal issue that the constitutional justice system must decide upon and within quite a short period of time. And, as has been demonstrated in comparative legal studies, with greater access to the courts comes greater political influence for the courts (Jacob et al, 1996: 396 ff.).

Thirdly, the procedural design of constitutional justice also confers enormous legal power on the court. In practice, thanks to its ability to annul, for constitutional reasons, other judges' decisions, the Constitutional Court has been growing in prominence as a super-court that lords over the other high courts. And this also facilitates its activism in that comparative sociology demonstrates that there tends to be more judicial activism and leadership in countries where most of the authority is concentrated in a single supreme court, such as in the United States. This contrasts to other countries, such as France where this power is distributed among different courts and jurisdictions (Jacob et al, 1996:389)

Beyond these institutional legal elements, two structural political factors exist that have stimulated the court's activism: the crisis in representation and the weakness of the social movements and opposition parties.

Colombian's disenchantment with politics has led certain sectors to demand answers from the judicial branch to problems that, in principle, should be debated and resolved by means of the people's participation in the political sphere. This phenomenon is not exclusive to Colombia (Santos et al, 1995). But, in the case of Colombia, the weakness of the mechanisms for political representation runs deep, for which reason there is greater temptation to substitute judicial for political action. On many occasions, what has taken place is not that the court takes on other powers, but rather that it has stepped in to fill the vacuum that they have left. This intervention appears legitimate to broad sectors of society that feel that at least one power exists that acts progressively and ably.

Elsewhere, Colombia has a historical tradition of weak social movements, compared to other peripheral or Latin American countries. And not only are these movements not strong, furthermore, in recent years, violence has considerably raised the costs and risks of their actions, in that many leaders and activists have been murdered. These two factors --historical weakness and growing risks— tend to strengthen the judicial role, especially that of the court. In effect, since access to constitutional justice is cheap and easy, and the constitutional judges tend to adopt progressive positions, it is natural that many social groups are tempted to make use of legal arguments rather than recurring to social and political mobilization, which has enormous risks and costs in Colombia.

All of the above may explain the court's activism but an obvious question remains: why did this court take on a progressive role when it could have undertaken activism of another nature? To answer this question, the characteristics of the constitutional transition take on considerable relevance.

The 1991 Constitution was not the product of a triumphant revolution, but rather it grew out of a very complex historical context, as an attempt to come to an agreement to broaden democracy in order to confront violence and political corruption. Under these circumstances, some political and social forces that were traditionally excluded from running for office in Colombia, played a very important role in the Constituent Assembly. These included representatives of demobilized guerrilla groups, indigenous and religious minorities. In this framework, the underlying analysis by many of the delegates would appear to be the following: exclusion, the lack of participation and weakness in protecting human rights are the basic factors in the Colombian crisis. This explains some of the ideological orientations in the 1991 Constitution: the broadening of participation mechanisms, the imposition of social justice and equality duties upon the state, and the incorporation of a Constitution that is rich in rights and new judicial mechanisms for their protection. The 1991 Constitution is not, therefore, in Teitel's words "backward looking" but rather "forward looking" (1997: 2014) in that, beyond codifying the existing power relations, this legal document tended towards projecting a model of the society to be built.

All of the above explains the generosity on the subject of rights in this Constitution, which not only embraces the classic civil and political rights, but also confers great legal force to the social rights and what are known as the collective or third generation rights. This is conducive to a certain amount of judicial activism in favor of human rights, which although it was not impossible, had less legal grounding in the former constitution.

However, the court's active intervention in developing the progressive components of the Constitution would not have been necessary if the political forces themselves had taken on this task. However, what took place was that many of the social and political actors that dominated the 1991 Constituent Assembly were considerably and rapidly weakened in the following years. The forces that had dominated Congress and the electoral scene since 1992, although not being clearly enemies of the 1991 Constitution, were not committed to cultivating it.

On the other hand, there is also a strong tension between the social content of many of the Constitution's clauses and the strategies that the Colombian Government has implemented since 1990. Thus, whereas the Constitution to some degree demanded more state presence and the authorities' intervention in wealth redistribution, the government was implementing development plans that tended to cut back on the state's social presence and to let the market forces assign resources. Perhaps the area most fraught with tension, although not the only one, was the field of labor law. Whereas the 1991 Constitution enshrined important labor and union guarantees, and conferred domestic legal force to the ILO conventions, the Gaviria government was pushing through a labor reform that affected job stability.

This tended over time to create growing tension between the normative Constitution (the text, the values and the rights set out in the charter) and the real Constitution (the relation between political forces (Gómez, 1995). The weakening of the political forces in Congress that wrote the Constitution, and the government's neoliberal strategies, little by little meant that one of the few institutions that was capable of applying the 1991 Constitution's progressive content was the Constitutional Court. And the Constitutional Court, from its first decisions, decided to take on this function with vigor. Over the years, the court has therefore, gradually, come to present itself as the body that implements the freedoms and social justice values set out in the Constitution, which has afforded it with significant legitimacy in certain social sectors. But it continues to walk on the edge of the knife in that this progressivism explains the energetic criticism coming from other sectors. In particular, businessmen's groups and the government, attack the court's jurisprudence, calling it populist and ingenuous. These actors have not limited themselves to reproaches, they have also, so far unsuccessfully, attempted to pass numerous reforms to eliminate the court or at least seriously to curtail its power. Thus, on some occasions, while some sectors on Congress have tried to bring about constitutional reforms to limit the court's power, the representatives and leaders of some social movements have showered it with praise and support.

Our hypothesis to explain the court's progressive activism can be synthesized as follows: the design of the Colombian Constitutional Court and the legal culture make the court's significant activism institutionally possible. The representation crisis and the weakness of the social movements are conducive to the use of legal mechanisms by certain social actors. The 1991 Constitution also stimulates a progressive vision by the court, which because of the vacuum left by the weakening of the constituent forces, tends to see itself as a power that is responsible for implementing the values enshrined in the Constitution. The court's progressivism is made possible, in turn, by the weakness of the forces that oppose it and the attempts at Constitutional counter-reform.

Indubitably, all of the above might never have taken place. The 1991 Constitution, and its long charter of rights, could have had a purely rhetorical effect and served to legitimize the dominant order. This is what took place in the 1970s with the approval of human rights agreements that Colombian judges never enforced. But the court's judges decided to take advantage of the political context that we have described and to promote the Constitution's emancipatory content. And they succeeded in doing so, at least at the legal level although, as we have seen, with great effort and difficulty. Furthermore, things could have been different: some purely causal and timely incidents had a decisive influence. Thus, in accordance with chaos theory, a slight variation in certain decisions could have had enormous consequences in the unfolding of constitutional jurisprudence. For example, some of the court's progressive and controversial decisions were made by the narrow margin of five to four. The slightest change in the court's composition and the opponents would have triumphed. Now, it is well known that the Senate elected some judges considered to be progressive, by a narrow margin over other candidates with more conservative political and legal orientations. It would have been enough that if one of these progressive judges were not elected, then very likely some of the court's jurisprudence would never have come to exist. Also, at other times, attempts to suppress the court's significant powers were on the verge of succeeding. But, to date, the court has managed to hold onto its power and progressive activism. And in this way, step by step, a sort of tactic counter-hegemonic alliance has grown between the Constitutional Court -or at least between some justices on the Constitutional Court— and certain social sectors that have been excluded or hindered from developing the emancipatory values enshrined in the 1991 Constitution (Cepeda, 1998: 76).

The above Colombian context could therefore explain a certain progressive activism on the part of the court. But, what has been the effective impact of this jurisprudence? To evaluate this point we have decided to analyze four cases. These not only have intrinsic importance because of the impact of the court's decisions and the social movements that are involved, but also because of the diversity of cases, which lends itself to a comparative and contextual reflection on constitutional justice's emancipatory potential .

No other social movement in Colombia over the last 30 years equals the indigenous movement in combativeness, strength and achievements (Gros, 1993:11). Furthermore, among the Latin American indigenous peoples' movements, the Colombian movement is by far the one that has achieved the most legal and political gains (Gros, 1994: 118). This is surprising given that the indigenous population of Colombia is quite small compared to their share of the population in other Latin American countries like Bolivia, Mexico and Ecuador. Moreover, the population is scattered throughout the country and is culturally very heterogeneous (Rappaport, 2000: 8). How then do we explain its strength and its achievements? Perhaps it is precisely the fact that the percentage of the Colombian population that is indigenous is quite low and that the concessions made by the government do not represent an unacceptable price compared to the gains in political legitimization. This would explain the lack of opposition within the dominant elites to the process of recognition and protection of indigenous cultures that was initiated with the 1991 Political Constitution.

The specificity of the Colombian situation then, and the difference noted with the circumstances of other Latin American countries, lies in the political will of the state, initially manifested in the support of the government for the indigenous cause in the Assembly and later in the rulings of the Constitutional Court. The Court has taken important decisions on this matter. Among them are found the following. It has protected the right to cultural autonomy of the U'Wa people against the intended exploitation of oil by the multinational company OXI and the Colombian government in places considered by the U'Wa people as part of their territory. The decision was based on the conception of this people according to which the land, including the subsoil, is sacred (Arenas, 2001). It has limited the right to religious freedom of some indigenous peoples of Arauca who converted to Protestantism and tried to proselytize inside indigenous territory against the regulations of traditional authorities. It has respected the decision of traditional authorities to impose physical punishment as a penalty for the commission of offenses, in opposition to the provisions of the Colombian penal code.

The most characteristic and fruitful components of the recent indigenous struggles are linked to the decisions of the Constitutional Court. These components include: an emphasis on cultural rights over economic considerations; an alliance between "indigenous intellectuals" and the Constitutional Court favored by exactly this emphasis (Rappaport, 2000: 31); and the internationalization of the indigenous political struggle. In general terms the indigenous leaders that we have interviewed agreed that that the achievements of the last decade "could not have been obtained without the backing of the Court," that no other state institution has been so favorable to the movement (LZ:24; RB:2), that a good part of the judges' decisions on indigenous peoples have been received by the communities as "political triumphs" (EA:26), that frequently the Court has been more generous than expected (RB:2), or that at least it has acted in accordance with what was foreseen in the 1991 Constitution (RB:3). They also claim that its decisions have assisted indigenous people "to become conscious of their rights" (RB:3), have united indigenous peoples (C:7), and have made their struggles more visible (LZ:23), etc.

However, the strengthening of the legal battle continues to create controversy inside the indigenous movement, with two warring tendencies at work. On one side are those leaders who, taking a pragmatic attitude, think that the interests of the movement are better served by adopting a strategy of negotiation with the government, without implying by this that anything fundamental is ceded. Others, however, beginning from a position that can be termed fundamentalist, suspect any concession coming from institutions and thus use the law only as another pressure tactic, without any implication of acceptance of law as enacted by the state. This tension, that never reaches the point of a definitive rupture, has created communication problems among traditional leaders, difficulties of representation, strategic differences and problems around political behavior.

Similar to what took place with the indigenous movement, starting in the 1970s, the trade unions' political strategy in Colombia was essentially ideological, confrontational and very influenced by a Marxist concept of class struggle. The 1991 Constitution was enacted at a time that the social movements, and the left in general, were in crisis. This moment coincided with the appearance of new social struggles that were generally oriented towards the recognition of minorities. The trade union movement has had difficulties adapting to this new sort of political struggle, which is more centered on recognition than economics (Fraser, 1998). This difficulty arises not only because of the essentially economic nature of their interests, but also because of the influence that the working-class tradition continues to have on Colombian trade unionists. However, the Constitutional Court's decisions on the subject of equality, more than anything else, have facilitated this adaptation to the new political contingencies. Prior to the 1991 Constitution, the trade unions' legal strategy was limited to defending their rights by means of negotiating collective work agreements. As neoliberal hiring and firing policies undermined labor law, this strategy was reduced to its minimum expression. In this context, legal defense gained importance, fundamentally by means of the tutela. This new strategy has led to a new negotiating culture for the trade unionists, a more pragmatic culture and one that is less centered on staunch ideological principles.

The broadening of the legal concept of the Constitutional Court's decisions that protect workers' rights based on constitutional principles rather than labor law, sparked this change of perspective in the trade unions' political action. By upholding tutelas, in effect the court was ruling on certain discriminatory practices against unionized workers, practices that nonetheless did not break any laws in the labor code. Thus, for example, the court ruled against a boss who gave more hours to the non-unionized workers than the unionized ones. The boss, based upon the labor code, argued that this was his freedom to run his business, but his objective was to get the workers to leave the union. On another occasion it ordered that the unionized workers who were laid off be rehired. Despite the fact that the layoff was carried out in accordance with all the legal requirements, the principle of equality was evoked because only the unionized workers were laid off. In a similar case, the court ordered the rehiring of some unionized workers, based on International Labour Organisation principles. This tutela, was launched by 209 unionized workers who were laid off from Empresas Varias de Medellín. In ruling T-568 of 1999, the court ordered that they be rehired and receive compensation, based on an ILO recommendation. The unions were enthusiastic about this ruling. Furthermore, union leaders have provided assistance to unions located in different cities around the country, helping them to prepare similar tutela cases. We will come back to this case in the conclusions.

Union leaders generally consider the workers' legal battles before the Constitutional Court as a ray of light in the midst of a situation in which workers' rights are being undermined as never before. The economic crisis, state policies that cut back on personnel and the situation of violence and insecurity that mark the defense of workers' rights, have seriously affected the trade unions' political strategy and, in this context, the Constitutional Court's decisions have been called "a lifesaver" (AV:2) and "emergency measures" (AV:4). As such, the impression that the labor activists have is that the court is the only legal body that has had some success in halting the deterioration of labor conditions in recent years. At the same time, the leaders are aware that the court cannot bring about structural changes. It can only partly halt the state's onslaught against their rights. It is felt that the court is therefore a symbol that the trade unions should embrace to articulate a defensive and effective battle (EG:1; AV:4). Furthermore, the labor leaders agree that this symbol's importance is circumstantial, meaning it is because of the fact that the trade union find themselves defenseless nowadays and, as such, in the medium and long term it is the political arena and not the legal battle in court, that will be fundamental and decisive for workers' rights (AV:4).

Gay groups, in defense of their rights, became more visible after the 1991 Constitution. Also, since there, and thanks to some Constitutional Court's rulings, legal regulations of gay issues began to change substantially. Several labor regimes, such as those concerning educators and the public forces, contained provisions that state that a person may face disciplinary sanctions for homosexual conduct. The court has attacked gay discrimination on all these fronts.

Although some people have criticized certain aspects of the court's jurisprudence, calling it timid and insufficient, in general these decisions are considered very avant-garde, not only in the view of gay groups in Colombia, but also by experts in other countries (Morgan, 1999: 265). So, what impact can the court's jurisprudence have towards greater social and legal recognition of gays and vice versa?

Ours interviews suggest that some activists see legal and political potential in the court's generally progressive orientation. They have decided to bring cases before the court to get it to make rulings on gay rights. The impact of these legal victories appears to have extended beyond the legal field in that they have strengthen gays' sense of identity and self-respect. This means that greater visibility for gays is not solely due to the legal content of the court's decisions, which forbids discrimination. It is also owing to the language into which the sentences are couched, and to the fact that the maximum Constitutional Court has openly studied these issues, meaning that the subject has ceased to be taboo. Through its great legal creativity, the court's doctrine has enabled gay groups to make progress on their rights, even in fields where they were not directly triumphant in terms of constitutional justice. Thus, the court admitted that the law limited marital union to heterosexual couples but it declared that the Constitution did not prohibit homosexual unions. So, with this bit of constitutional doctrine, a legal team designed a marriage contract for gay couples, to be legalized before a notary. And the first gay "marriages" have already been held in Colombia, something that would have been unthinkable before the court's decisions. Finally, the doctrine that the court has produced, along with greater visibility on the part of the gay movement, have laid the groundwork for some sectors in Congress to recently present a bill to fully recognize homosexual and bisexual rights.

Gay activists' creative use of legal resources and the court's progressive decisions have since improved these people's legal situation and have provided them with greater social acceptance. This change has been so marked that some of them have become an active political minority. However, despite the above-mentioned progress, discrimination against gays in Colombia is far from over. To some extent, it has taken a more subtle turn. This appears to be related to the fact that the public accepts gays in theory but it continues to have difficulties coexisting with them. Constitutional action seems to be less effective at fighting this sort of subtle discrimination. On the other hand, and worse yet, there are still in Colombia atrocious manifestations of violence against gays. This is especially true of gays from low-income groups who are murdered in what are known as "social cleansing" operations. Finally, despite greater visibility and a certain degree of participation in politics, it would be tenuous to claim that a solid gay movement exists to defend its rights. In all, groups exist, with various interests, which periodically converge to hold marches or bring a case before the courts.

Starting in 1997, Colombia went into a deep recession that, combined with certain economic policy decisions, aggravated the situation for 800,000 debtors, who had taking loans to buy their house in the so called Upac system. Two years later, there was talk of 200,000 families on the verge of losing their homes.

These debtors were largely from the middle class, people who usually do not participate in social protests in Colombia. However, the situation grew to such proportions that the debtors began to band together to defend themselves from the financial institutions, and sent petitions to the government and Congress, asking that this financing system be changed and for some relief for the debtors. Some debtors began to propose strategies for civil disobedience and they refused to continue making payments on their mortgages or to hand over their homes to the financial institutions.

Very quickly and, some attribute this to the government and Congress' lack of receptiveness, the debtors and their associations recurred to judicial strategies and launched lawsuits with the Constitutional Court, against the norms that regulate the UPAC system. Between 1998 and 1999, the court handed down several rulings on the UPAC system. In general, these rulings tended to protect debtors. Thus, it tied the UPAC to inflation, forbid interest from being added to the capital debt and ordered that mortgages be recalculated to relieve the debtors' situation. Furthermore, the court ordered that a new law be passed within seven months, to regulate housing financing.

The public and the media focussed considerable attention on these decisions. These rulings placed the court in the eye of the storm because, although the debtors and some social movements lauded its decisions, business groups, some government sectors and many analysts fiercely attacked the Constitutional Court. They criticized it for overstepping its boundaries and for its ignorance of how the market economy operates. For these reasons, they proposed that the court should not rule on the constitutionality of economic legislation.

In this context, in late 1999 Congress debated and passed a new law on housing financing that incorporated, among other things, 2000 billion pesos ($1.2 billion dollars) in relief for debtors and once again tied the cost of mortgages to inflation. It’s clear that without the Constitutional Court rulings it would not have been possible to immediately modify the UPAC system, despite the social turmoil it had caused. Several senators have acknowledged this.

Some debtors participated in the debates on the law but their contribution was minor. Many debtors expressed their dissatisfaction, in part with the content, and they decided to launch a new attack before the Constitutional Court in January 2000. During all those months, the users' associations, such as ANUSIF, and individual debtors brought hundreds of cases before civil judges, asking that their mortgages be reduced in accordance with the court's doctrine and the relief measures decreed by law.

As we see, the mortgage debtors' organizations were spawned in reaction to a payment crisis that threatened them with the loss of housing, and above all they sought a solution to allow them to keep their homes. Although the debtors held street protests and engaged in political action, it was the judicial strategy, especially the cases presented before the court, that have been dominant and that have defined the movement's profile. This is a combination of civil disobedience with legal foundations based on constitutional arguments. The transformation of these individual complaints into Constitutional Court debates and the relatively successful use of other judicial instruments have given these rapidly growing organizations a certain amount of success.

It is not easy to evaluate the emancipatory potential of the mortgage debtors' movement and the court's jurisprudence. Indubitably, the court's rulings led to a certain amount of financial relief for a significant number of debtors and perhaps because of this they did not lose their homes. Equally, now debtors had greater recourse for fighting eviction. Finally, in this case, the constitutional litigation led to greater articulation between the debtors and their associations in the convergence of a middle class civil disobedience social movement against the financial sector and the state's housing policy. Obviously the constitutional justice system did not create the movement but it did contribute to its dynamism. The constitutional justice litigation not only gave these debtors and their organizations considerable political visibility, it also modified the sense of their interventions. The issue was no longer about the complaints of isolated debtors but rather a collective questioning, upheld by the court, of the state's policy on housing and the behavior of the financial institutions.

But the risks and limits inherent in this strategy have also been clear. As such, it is not clear that court’s decisions will translate into greater access to housing in the future for the low-income sectors, since the court´s rulings might depress the construction sector, and also because the court's measures have protected, above all, middle class debtors, at a substantial budgetary cost for the state. On the other hand, the excessive weight of the legal strategy has limited the associations' potential, some of which have become simply centers for receiving specific complaints about problems in getting mortgages recalculated.

4. THE CONSTITUTIONAL COURT AND SOCIAL EMANCIPATION IN COLOMBIA

In Section II of this essay we showed the surprisingly progressive activism of the Constitutional Court as well as the causes that it has favored. Later we presented five case studies in which the way in which different social actors, after having been the beneficiaries of Court decisions, were able to articulate emancipatory social practice. At this point we will tackle the analysis of this complex phenomenon by asking what kind of relation or relationship exists between progressive judicial decisions and social emancipation.

In Colombia, a strong institutional propensity exists to use the law, and above all constitutional law, as a weapon of government legitimization. Governments' problems of political maneuverability make of law an indispensable discourse to respond to citizens' demands for security and social justice. In this way the justice system becomes overloaded and this jeopardizes the sought-after aim of institutional legitimization. The weapon then is two-edged. We will examine both sides.

In the first place, the law can be used to reactivate collective hope. Hope for a better society has, like the majority of fundamental collective values, different facets: one of them related to approval and confidence in the present, another to the possibility of future change through legal action. The first is a remedy for rebellion, the second is a remedy for conformity. Progressive constitutions are both a concession of the state apparatus benefiting individuals, thus a remedy for rebellion, and an indication of a potential to better citizens' rights, as the norms show. Thus they are also a vehicle promoting change and a remedy for conformity. One possible government strategy is to temporarily differentiate these two effects: laws are passed with the aim of obtaining political advantage through popular approval in the short-term, and a long-term institutional struggle begun, searching for an interpretation and enforcement of the texts that is compatible with the political, economic and social realities that surround its implementation. In Colombia governments have manipulated the phasing of these two effects, one of which is immediate while the other is a delayed effect.

But this is not the only possibility and here the other edge of the legal tool comes into play. The strategy of producing law with the aim of institutional legitimization can backfire and become more a remedy against conformity than a remedy against rebellion. The effectiveness of this strategy originates in the profound rejection found in the citizenry to pronouncements that affect the most important topoi or the sites of everyday social co-existence, such as justice or equity. Even less do they accept abuse when in addition to being known it is openly discussed; so a political power that can manage a situation in which injustice is seen and felt, and in addition is uttered, finds its margin of maneuverability reduced. What has occurred with the creation of the Constitutional Court in Colombia is that, on one hand, the discourse on the rights expressed in the constitution have been particularly progressive and generous, and, on the other hand, the diffusion of this discourse in society has made its political appropriation by groups and social movements possible. Unlike what formerly occurred when rights were only on paper, during the last decade the social mobilization product of some of the court's decisions has been significant. As the cases analyzed in this essay show, progressive jurisprudence has served more to articulate anti-conformist practices than to quench rebellion.

So, the emancipatory power of certain of the court's decisions lies in the fact that they contain a political message: they make concrete the expectations that the constitution encoded such that actors find in their message a pretext for political action. In other words, the court is important for political practices to the extent to which it 1) facilitates an emancipatory political consciousness in some excluded social groups and 2) provides possible strategies for political and legal action to remedy the situation of those affected. The decisions of the court have an important constitutive dimension in that they create, help to create, or strengthen the identity of a political subject. This is especially clear in the case of the so-called new social movements that demand recognition of issues of gender, culture or differing opinions. The court has contribute to forging the political identity of these actors and along the way has forged its own identity.

The Constitutional Court favorably affects the social and political reality of social movements. As we have already said, this influence comes not only from the court's coercive capacity to order certain behaviors that favor the protection of individuals' rights but also, and frequently more importantly, from its capacity to inculcate a spirit of nonconformity in the hearts and minds of the members of social movements and the general public. This spirit of nonconformity is based on the authorized knowledge that injustice exists and should be remedied. Of course, the first, symbolic, effect is also frequently achieved thanks to the latter instrumental effect. Each case shows a specific combination of instrumental efficacy and symbolic effects of court decisions. So for example, while the trade unions and the UPAC movement show the predominance of instrumental effect, in the case of the gay rights movement it is the symbolic effect that seems to have been more important.

The relationship between these decisions and practices is a complex phenomenon and not a direct causal relation. The social influence of judicial decisions alone does not seem to be sufficient to produce direct and effective instances of social change; neither is it irrelevant to the evaluation of these changes. Since it is not a simple causal relationship, we need to examine the factors that mediate the relation or the conditions that permit judicial decisions to facilitate social emancipation. It seems to us that these factors are the judicial ruling, the social context, the social actors, the political strategy and the international environment. All these elements affect the emancipatory outcomes of the practices. A proper understanding of the factors at work will allow us to answer the question-how, under what conditions and to what extent does the progressive activism of the Court turn out to be emancipatory?

From the analysis of the Colombian case studies and comparative theoretical debates (Chemerinsky 1998) the conclusion can be drawn that the impact of a judicial decision also depends on the nature of the writ emitted by the judge. So, it is obvious that a decision that annuls an offense or a crime is practically self-executing because once taken by a constitutional judge, the conduct is no longer punishable and, in principle, no person can be sentenced for that offence. In turn, if an individual is incarcerated for that reason, the person can petition the judges, and even the constitutional court, to order his or her release. These type of decisions then have an immediate effect. However, when a judge orders other authorities to carry out specific behaviors such as to build a hospital or improve prison conditions, it is quite possible that greater resistance will be encountered, because the authorities that are responsible for compliance can obstruct its enactment through many different means if they are not in agreement with the court's findings. So, they can adduce budgetary restrictions, administrative difficulties, operational problems, etc. and postpone compliance with a judge's order for a very long time. Judges cannot take action to enforce the order because the other authorities are not openly in contempt.

An important variable that affects the effectiveness of judicial decisions is then the type of decision. Following in part the terminology proposed by Wayne, an American federal judge (1997: 302 ff.), we can differentiate two forms of progressive judicial activism. In the first a judge can recognize rights that are disputed by political forces, without those rights being clearly derived from the legal order. This activism, that Wayne calls jurisprudential activism consists then in legally decreeing certain values or conferring specific rights on certain social groups, which we propose to term value-based or ideological activism. The decisions of the Constitutional Court to decriminalize euthanasia and the consumption of drugs have this character. In other cases the existence of the right may be incontrovertible but the decision that the judge takes to challenge a violation of the rights may be criticized as activist by those who think that the solutions or legal remedies decreed invade the competencies of other state entities. This can be then a remedial activism according to the classification proposed by Wayne, and used here. In the Colombian case, a typical example of this activism would be those sentences where the Court has ordered that the subhuman conditions in prisons be improved. In effect, few deny that prisoners have the right to some minimal conditions of dignity, but they question whether the court, rather than the government, should be the entity that orders the authorities to carry out specific projects to achieve the objective.

However, there is more to the story. Perhaps it would be useful to further refine the distinction. So, on the subject of legal remedies, it is usually easier for a judge to enforce a prohibition than a mandate to do something. In the first case it is more difficult for other authorities to excuse a violation of the legal order. So, it is interesting to differentiate between positive remedies (orders to enact) and negative remedies (prohibitions). Likewise as concerns ideological activism, at times constitutional judges act against the majority to "create" a right that has never been recognized in the jurisprudence, while in other cases, its action tends to "preserve" a guarantee for which precedents clearly exist but which is threatened with elimination by political forces. For that reason it is perhaps useful to differentiate between ideological activism that is "innovatory" or "preservationist."

The following table summarizes and typifies the types of decisions that can be taken by a progressive court:

The analysis of decision types is useful in the evaluation of the potential emancipatory impact of a decision. Usually it can be presumed that it is easier to execute negative remedial orders (prohibitions), while enormous controversy and opposition can be generated by an innovatory ideological activism that comes accompanied with mandated action. This explains the fact that in the case studies a good part of the emancipatory impulse of the court originated in decisions that contained prohibitions.

Progressive decisions usually bring with them high political costs for the court. These costs are difficult to evaluate in a context of institutional, social and political fragmentation such as the situation found in Colombia. So generally such costs should be weighed carefully in each case, in its particular relation to an institution or a political opinion. The specificity of Colombia, once again, is the tremendous fragmentation of political forces, both those that oppose as well as those that support the work of the court. This leads the court to operate in a fashion relatively independent of the political system. In these circumstances the court decides with the calmness given by, on one hand, the feeling of being supported in public opinion and, on the other, knowing that up to now the opposition has not been able to articulate a political strategy that can question its institutional stability. But at the same time it faces uncertainty and the disquiet that arises from being in a country at the edge of civil war and in the midst of a crisis of legitimacy that affects the entire state; the court knows that it could be the first victim of a conservative constitutional reform. In summary, beyond the specific dangers that originate in concrete decisions in opposition to specific social and institutional actors, the court is subjected to a general danger that operates as a sort of backdrop against which it acts. This danger is extremely difficult to evaluate and consists in the more or less latent possibility that the political forces unite to finish off the court by reforming the constitution. This general danger acquire a similar, if less dramatic, connotation when the election of new judges is taking place-scheduled for the end of 2000. This posits the danger of the court's neutralization through the appointment of conservative judges.

So we can ask what relation exists between this analysis of political costs and the social effect of progressive decisions. The emancipatory possibilities of the court's progressive decisions seem to be greater in social and political contexts in which a consensus has formed on the values and principles defended by social actors and by the court. We call these audiences consensual to differentiate them from those in which differences predominate, which we will term conflictive. Of course it is difficult for actual cases to conform exactly to an ideal type; our case studies are actually located along a spectrum of intermediary possibilities. So for example, the case of the indigenous people, at least during the first five years of the court's functioning, is a good example of a consensual context. Since the National Constituent Assembly favorable opinion has existed with respect to the cause of the native peoples. This opinion has disintegrated somewhat during recent years in response to the confrontations with the government originating in the economic costs of the indigenous movement's demands, especially those of the U'Wa people. Something similar happens with the UPAC movement, which seems to enjoy broad public support. The trade unions and the gays, however, seem to operate in a less favorable political climate in which support for their cause is relative and a significant opposition faces them. The situation with the nongovernmental human rights organizations appears to be located in an intermediate position.

The emancipatory potential of a judicial decision is also linked to its reception by social actors. Above all it is important to point out that there is a huge variety of social actors. Perhaps the most important factor for our model is the degree or type of internal cohesion among the decision's beneficiaries. Here we will distinguish three types. First we find the more disperse actors who usually seek an individual interest and who only choose a collective practice when it works to the advantage of their own individual strategy. An example of this type of actor would be found in the movement of those affected by UPAC. This is a very strong movement that took the court's decision as its banner, but at the same time it can be easily taken apart whenever the implementation of the court's decisions presents difficulties. The second type refers to actors who are strongly tied together through their community links, where the general interest is clearly the top priority. The indigenous peoples are a good example of this type of social actor. They have created perhaps the most consolidated movement and the one that is least affected by political tides. Their strength is located in the fact that their reason for opposition is the defense of community values whose legal scope is founded on the decision of the court. This decision is then a secondary although important component of movement strength. Finally we have those actors who are linked to a social movement whose internal cohesion depends on shared political interests. This is the classic social movement (Touraine, 1988). The case of the trade unions that fight for the interests of its members based on decisions of the court illustrates this type of social actor very well. Its internal cohesion does not depend exclusively on the court's decisions but these can bring new life and energy to the political struggle.

However, we also need to ask what influence the court's decision has on the strategy of counter-hegemonic struggle of social actors. Two possibilities are of interest for our purposes. The first arises when the judicial decision explains, at least in good part, not only the emancipatory struggles of social actors but also their existence, their combativeness, their achievements, etc. This is the case, for example, of the UPAC debtors, who found their most important element of cohesion and struggle in the court decision. Something similar can be said of the gay movement though to a lesser extent. The second possibility occurs in cases in which the legal strategy, although in the past it was not perceived as essential, or not even as an important element of political struggle, in a specific moment, acquires an unusual importance. This often coincides with a moment of crisis in the political strategy or comes at a time when the movement faces a danger of disintegration. The amount of importance the legal strategy acquires originates in great part in the decision of the court. This is the actual situation of the trade unions studied in this essay, as well as that of the nongovernmental organizations and perhaps to a lesser degree the indigenous peoples. In the first situation we can speak of a constitutive legal strategy and in the second case of a contextually specific legal strategy.

As a result of the growing influence of globalization it is unquestionably relevant to examine the potential progressive impact of legal decisions from an international perspective and in particular the existence of a certain legal globalization (Santos, 1995b). The case of Pinochet is a good illustration because it is beyond doubt that the Chilean Supreme Court of Justice would not have been able to lift the ex-dictator's immunity had he not previously been detained in England at the petition of the Spanish judge Garzón. These decisions, that reflect the existence of a certain internationalized legal space opposed to impunity, strengthened the Chilean judges in the domestic space, allowing them to take measures that would have seemed impossible just months before.

In some of the case studies, the international aspect favored certain directions of the Constitutional Court, as occurred in the decisions related to workplace issues where the court has been supported by ILO decisions to protect trade union rights within the country. As Boaventura Santos has noted, the democratic character of judges will increasingly depend on the emergence of international forms of justice more suited to confront damages produced by structural conflicts at the global level (2001b). This does not mean, obviously, that this globalized legal or semi-legal space that is in the process of formation always works in favor of the emancipatory potential of constitutional courts. On occasion, it can be a formidable obstacle because an agreement on economic integration can void many progressive judicial decisions. But it is unquestionable that the existence or deficit of international legal or political supports is a significant variable to explain the impact of the decisions of a constitutional court.

In short, the Colombian Constitutional Court, as all constitutional Courts around the world, deals with a tension between his legal obligation to protect fundamental rights and his political need to maintain the social and economic conditions under which the legal system and the court itself are justified. But this tension seems particularly strong in Colombia given the following facts: 1) a very progressive constitutional charter which provides justiciability for the protection of fundamental rights; 2) a strong political independence of the Constitutional Court which derives from the weakness of the political representation. The social anomie of political practices, visible in almost all the countries of Latin America, is exacerbated in Colombia as a consequence of the violence, and 3) the mixture between authoritarian and democratic institutional practices which makes the work of the Constitutional Court more difficult. Colombia in fact is experiencing all the problems of state building-in the Hobbsian sense-which explains certain very authoritarian components of the current reforms. For example we can mention here the so-called "faceless justice" through which the state attempts to obtain, practically at any cost, the monopoly over coercion, which explains the tendency to establish permanent exceptions to constitutional guarantees. But, on the other hand, in Colombia a construction of citizenship has begun with the 1991 Constitution, a project that is typical of more solid republics. These conflicting logics-states of exception and a new design for citizenship-directly affect the functioning of the court and explain both its power and its weakness. Its power is related to the fact that in Colombia there is no consolidated political opposition in Congress. This explains the boldness and the crusading spirit with which the court has ruled in some cases against political majorities. On the other hand, the lack of strong political views on the court's opinions, in a social and institutional environment in which surreptitious interests are at work, some of them related to the war, creates a situation of continuous uncertainty and fragility.

In these circumstances the court should try to conciliate a rhetoric of community and social solidarity that feeds citizens' hopes and the institutional practices that permit the maintenance of an effective state despite the conditions of ongoing war, economic precariousness and neoliberal globalization.

The effectiveness of the court's progressive decisions is increased when the following factors coincide: remedial judicial decisions, preferably instructing on what must not be done (prohibitions), put forth in consensual contexts or hearings, that movements, be they disperse or community-based, can appropriate politically and adopt in a legal strategy forming part of their political struggle and the construction of their identity as a movement, all of these accompanied by some international support. We believe that this postulate contains the ideal combination of factors or conditions so that progressive judicial activism will have greater potential for bringing about emancipatory practices. This is therefore not a proposition cast in stone but rather a tendency. Nor does it necessarily require that the combination of factors be present in their entirety in order to bring about emancipatory practices. Nor does the fact that these take place necessarily guarantee emancipation. As a model that indicates tendencies, empirical research is therefore always indispensable for corroborating the veracity of the tendency in concrete cases. However, this does not mean that this is a mere working hypothesis. It is a postulate that may be contrasted and disproved but this should be done by means of empirical research, as we have done to substantiate it.

The second caveat is the following. In the research that supports this essay, we have started with cases that we hypothetically consider to be emancipatory. After the empirical research was carried out, we concluded that, in effect, the emancipatory practices derive mostly from the court's progressive rulings on these cases. However, it is clear that not every progressive decision leads to social emancipation. An interesting complement to this research, which we hope to undertake in the near future, would be to expand the number of cases studied to include progressive decisions that have not led to emancipatory practices.

Having made these clarifications, now is the time to extract some conclusions. Reviewing the emancipatory practices studied here, it is possible to appreciate how some factors do not always hold true and how in some they are fulfilled to a greater degree than in others. Let us look at what elements are lacking or are deficient in each case. In the indigenous movement, a constitutive strategy appears to be lacking. In the gay movement, the consensual element is deficient. In the UPAC movement the international aspect is nonexistent. The trade unions appear to lack at least three factors: the audience does not appear to be consensual, the movement is neither disperse nor community-based and nor is the strategy constitutive. Finally, in the case of the human rights NGOs the movement appears to be neither community-based nor disperse. The trade union movement's distance from the ideal factors is surprising. So, what is the explanation for the emancipatory nature of the trade union practices that are tied to the court's decisions?

Perhaps the most notable difference between the case of the trade unions and the others may be understood from the difference that exists today between new and old social movements. Whereas the old or classic social movements were characterized by activism on political issues general tied to class interests (Giddens, 1984; Touraine,1977) the new social movements (NSMs) act on a broader range of issues, generally related to cultural concerns, and social and political recognition (Santos, 1998: 312; Fraser, 1998). The latter have skyrocketed since the mid-1980s and are part of a new culture of globalized rights. Generally they are led by minority groups that seek social and political recognition. The characteristics of the movements' political struggle are consistent with the emancipatory struggle of the cases studied here. There are at least three elements that the NSMs and the case studies have in common. Let us see: in the first place this is about new groups or movements for whom the legal strategy is an essential element not only in their emancipatory struggle but also for their survival and their identity as a political group or movement. Second, the above is closely tied to the fact that these movements that are in their consolidation period are relatively disperse. Finally, these movements or social groups generally seek the recognition of rights that, for the most part, may be satisfied by rulings to refrain from certain actions or prohibitions. The remaining elements -the internationalization and the consensual environment— appear to be an important support for the NSMs. These have less importance in our cases, which leads one to think that their contribution to the emancipatory practices is relatively minor.

Now, what is the relevance of the trade union movement and in particular the workers' union at the Empresas Varias de Medellín, which appears to be far removed from the factors we have depicted ? What does it mean that most of this factors do not apply to this case? As has already been indicated, critical legal theory maintains that the legal strategy may have counterproductive effects on the classic social movements' global strategy. This is because, in these case studies, the political strategy, and not the legal one, is inherent to the movement's identity and, in consequence, the legal struggle makes sense only to the degree that it fits into the more essential and global political strategy. Much has been written, especially from a Marxist perspective (Tushnet, 1984), on the dangers of concentrating a political struggle in a legal strategy. As we saw in section one on the theoretical debates, a political struggle conducted through the law is accused of obscuring the true direction of the political struggle and in this way it strips the social movement of its ideology and alienates its members. Based on these premises, the legal critics have deduced that the legal strategy should be avoided in favor of other actions. As Santos has explained, there is a risk that the legal struggle trivialize, depoliticize and disintegrate the political fights of social movements, and it therefore is unable to transform such fights into structural changes (2002b:196, 201). It is important to bear in mind that the criticism that maintains that these practices are not lasting and may be counterproductive in the long run, does not preclude the fact that emancipatory practices may be achieved through the law. However, these criticisms have been strongly refuted in contemporary sociology of law, and our study appears to confirm that in semi-peripheral contexts, the opinion contrary to this criticism is valid.

In any case, the emancipatory nature of the legal strategy by the union at the Empresas Varias seems incontrovertible. The question again arises, if this is so, why does our factors seem so far removed from the conditions that gave rise to these practices? Recall that the specific conditions that provided the context for the trade union struggle at the Empresas Varias de Medellín. The workers interviewed say that the decision to rehire the laid off union workers came at a time that the union movement was in crisis and those affected were despairing. The tutela was launched in an atmosphere of general skepticism and as a last resort. The court's favorable decision completely changed the panorama in such a way that the political struggle took on a national dimension by advising other trade unions in similar situations. In these conditions it is not an exaggeration to say that for the union at the Empresas Varias, the legal strategy revived the union's political strength and, as a consequence, in the past two years it has taken on a central role in the context of the movement's political struggle. The weakening of the traditional union battles and the enormous expectations that the tutela opened up, explain this situation, which is doubtless common to many trade unions, in which the legal strategy takes on primordial importance to such a degree that is appears to be practically a constitutive type of strategy, at least for the period being analyzed. As such, the relative weight and importance of the legal strategy for the Empresas Varias approximates what takes place with community-based or disperse social movements. However, this does not preclude attention to a warning reminiscent of critical thought related to the greater risks inherent to the legal strategy in the long-term struggle for classic social movements.

Some thing similar happen in the case of indigenous people. Here also the legal strategy was contextual. We have showed how these legal strategies at the Constitutional Court have produced important emancipatory effects. The explanation relay in the fact that over the last decade the legal strategy has become an essential element of the political fight, so the classical political confrontation was somehow overshadowed.

In summary, both classic social movements and the new social movements may achieve social emancipation by means of a legal strategy made possible by the court's progressive stance. In cases of classic social movements this appears to be very necessary in that, currently, they find themselves in a situation in which it is extremely difficult to make progress by means of a traditional political struggle. Also, the risks of this strategy are clearly greater when dealing with these latter movements.

On the subject, it is important to bear in mind that the court also faces risks in these emancipatory purposes. Colombia's social and institutional fragmentation is such that non-consensual contexts are progressively prevailing over consensual ones. In these circumstances there are two risks for the Constitutional Court. First, the increase in the danger that the court's enemies may manage to consolidate a strategy to eliminate or curtail its powers, as has been attempted in the past. Second, the other danger is that the court, for its own protection, may adopt a conservative attitude in its decisions. These two risks affect the court's emancipatory potential.

Last, but not least, the worsening of armed conflict during recent years in Colombia might reduce the impact of the court’s ruling, given the fact that many areas of the country are now controlled by illegal armed groups that obviously do not respect the legal order.

However, neither the risks nor the emancipatory potential may be considered as immutable givens. Both elements should be contrasted and evaluated according to their concrete context. The case of Colombia and the theoretical discussion therefore demonstrate that it is necessary to abandon extreme positions when replying to the question of whether or not it is possible to achieve emancipatory transformation through judicial channels. The context and certain creative decisions by the actors involved have decisive weight, for which reason it is appropriate to undertake comparative studies in order to reach a better contextual understanding of these strategies' potential and limits.

Our paper confirms one simple but important idea. In some contexts, law in general, and constitutional justice in particular can become an instrument of social emancipation. But not for this reason, law looses its social domination facet. Thus, the emancipatory possibilities of constitutional justice are limited and predominance of judicial strategies has risks upon the dynamism and creativity of social movement. In any case, this risks should be contrasted with the progressive potentialities of constitutional justice, that have tried to describe and systematize in this paper. Two consequences followed from this conclusion. The first is academic: it is important to develop comparative studies in order to have a better understanding of the contextual possibilities and limits of the judicial strategies. The other is political: constitutional justice can become an important tool for democratic progress, only if we think of it as part of broader social struggles. The fulfillment of the emancipation promises of many constitutions is too serious a matter to leave it only to constitutional justices.

-Acosta, Amylkar. El viacrucis del UPAC. Los inquilinos de la ira. Bogotá: IDEAS, 2000

- Arenas, Luis Carlos (2001) "Poscriptum: Sobre el Caso u'wa" in Santos y García Villegas (2001) El caleidoscopio de las justicias en Colombia, Bogotá: Uniandes et. al.Pp. 143-156

-Balbus, Isaac, (1977) "Commodity Form and Legal Form: An Essay on the "Relative Autonomy" of the Law" in 11 Law and Society Review, 571-588

-Bourdieu, Pierre (1986) "La force du Droit, elements pour une sociologie du champ juridique" in Actes de la Recherche in Sciences Sociales, N. 64, Paris.

-Buenahora, Jaime (1992) El proceso constituyente, Bogotá: Tercer Mundo.

-Cardoso, F.E. and Faletto, e. (1979) Dependency and Development in Latin America, Berkeley, University of California Press.

-Castellanos, Jorge y Suárez, Felipe. (1999) "Financiación de vivienda: retos y soluciones" in Debates de Coyuntura Económica, Bogotá, Fedesarrollo, No 49. Pp. 7-18

-Cepeda Manuel José (1998). Democracy, State and Society in the 1991 Constitution: The Role of the Constitutional Court in Eduardo Posada Carbó. Colombia: The politics of reforming the State.

-Chmerinsky, Erwin (1998). "Can Courts make a Difference?" in Neal Devins,

-Crenshaw, Kimberle (1988) Race, reform and Retrenchment: Transformation and Legitimation in Antidiscrimination Law" in 101 Harvard Law Review Pp. 1331-1387

-Crossman, Brenda y Ratna Kapur (1997) «Secularism’s Last Sigh?: The Hindu Right, the Courts, and India´s Struggle for Democracy« in 38 Harvard International Law Journal., 113. Pp. 113 170

-Davison M Douglas (eds). Redefining Equality. Oxford: Oxford University Press.

-Deas, Malcom, (1995) "Canjes violentos: Reflexiones sobre la violencia política in Colombia" in Deas and G. Daza Dos ensayos especulativos sobre la violencia en Colombia, Bogota, Fonade.Pp. 1-86

-Echeverry, Juan Carlos et al (1999). UPAC: evolución y crisis de un modelo de desarrollo. Bogotá: mimeo, Planeación Nacional, 1999

-Edelman, Murray (1971) Politics as Symbolic Action: Mass Arousal and Quiescence , Chicago: Markham

Epp, Charles R (1998) The Rights Revolution, Chicago: The University of Chicago Press

-Ewick, Patricia and Silbey (1998) The Common Place of Law; Stories from Every day Life, University of Chicago Press.

-Findji, Maria teresa, (1992) "From Resistance to Social Movement: The Indigenous Authorities Movement in Colombia" in The making of Social Movements in Latin America: Identity, Strategy and Democracy, Arturo Escober y Sonia Alvarez eds., Boulder (Colorado): Westview Press.

-Findley, Roger (1972) "Ten Years of Land Reform in Colombia" in Wisconsin Law Review, 3 880-923.

-Fraser, Nancy (1998) «Social Justice an the Age of Identity Politics: Redistribution, Recognition, and Participation» in The Tanner Lectures On Human Values, Vol 19 Grethe B Paterson ed. University of Utah Press. Pp. 3-67

-Giddens, Anthony (1984). The Constitution of Society. Berkeley:University of California Press.

-Gómez, Juan Gabriel. (1995)"Fueros y desafueros. justicia y contrarreforma en Colombia" in Análisis Político. No 25. Pp. 71-79

-Gordon, Robert (1998ª) "Some Critical Theories on Law and Their Critics" In David Kaiyrs ed. The Politics of Law. A Progressive Critique, Basic Books Pp. 641-661

-Gros, Christian (1988) "Reforma agraria y Proceso de paz en Colombia" in Revista Mexicana de Sociologia, 50, 1 Jan-Mar, Pp. 287-302.

-Gros, Christian (1997) Indigenismo y etnicidad: el desafio neoliberal "Antropoligía en la Modernidad", Bogotá: Instituto Colombiano de Antropología (ICAN)

-Gros, Christian 1993 "Derechos Indígenas y Nueva Constitución" in Análisis Político 19, Mayo-Agosto, 8-24

-Gros, Christian 1994 "Colombia indígena. Identidad cultural y cambio social" in Análisis Político 22, Mayo-Agosto, pp. 118-120

-Guzmán Duque, Federico (2000). Apropiaciones: homosexuales y derecho en Colombia. Bogotá: tesis de grado, Departamento de Antropología de la Universidad de los Andes.

-Jacob, Herbert et al (1996). Courts, Law and Politics in Comparative Perspective. New Haven, Yale University Press.

-Laclau, E y Chantal Mouffe (1985) Hegemony and Socialist Strategy: Toward a Radical Democratic Politics, London:Verso

-Linz, Juan and Alfred Stepan (1996) Problems of Democratic Transition and Consolidation; Southern Europe, South America, Post-Communict Europe, Baltimore-London: The Johns Hopkins University Press

-Malloy, James (ed.) (1977) Authoritarianism and Corporatism in Latin America, University of Pittsburfh Press.

-McCann, Michael (1985) "Resistance, Reconstruction, and Romance in Legal Scholarship," 26 Law & Soc. Review 4.

-McCann, Michael W. (1994) Rights at Work, Pay Equity Reform and Politics of Legal Mobilization, Chicago: University of Chicago Press

-McCann, Michael W. (1994) Rights at Work, Pay Equity Reform and Politics of Legal Mobilization, Chicago: University of Chicago Press

-Minow, Martha (1987) "Interpreting Rights: An Essay for Robert Cover" in 96 Yale Law Journal

-Morgan, Martha. (1999) "Taking Machismo to Court: The Gender Jurisprudence of the Colombian Constitutional Court" in Interamerican Law Review, Vol 30, No 2.

-Motta, Cristina (1998) "La Corte Constitucional y los derechos de los homosexuales" in Observatorio de Justicia Constitucional. Bogotá: Siglo del Hombre, Universidad de los Andes. Pp. 290-299

-Nino, Carlos S. 1989 "Transition to Democracy, Corporatism and Constitutional Reform in Latin America" in 44 University of Miami Law Review, 1: 129

-Nino, Carlos S. 1992-93 "The Debate Over Constitutional Reform in Latin America" in Fordham international Law Journal, 16-3, 635.

-Pécaut, Daniel (1978) Orden y Violencia en Colombia 1930-1954. Bogotá: Siglo XXI.

-Pécaut, Daniel (1987) Orden y Violencia en Colombia 1930-1954, Bogotá, siglo XXI.

-Pécaut, Daniel (1997) "Presente, pasado y futuro de la Violencia", in Revista Análisis Político, No 30, IEPRI, Universidad Nacional de Colombia, Bogotá. Pp. 3-36

-Pinto, Anibal (1971) Tres ensayos sobre Chile y América Latina, Buenos Aires; Solar

-Rappaport, Joanne (2000) "Redrawing The Nation: Indigenous Intelectuals and Ethnic Pluralism in Colombia" Bogotá: Mimeo 1-45

-Rendón Merino, Alvaro (1995) "Los sindicatos en Colombia: dificultades y retos sociopolíticos a finales del siglo" in Debates , Número 12, Bogotá: Fundación Friedrich Erbet de Colombia FESCOL

-Rodríguez Cesar (2001) "La justicia civil y de familia" en Santos y García Villegas (2001) El caleidoscopio de las justicias en Colombia, Bogotá: Uniandes Pp. 547-615

Santos, Boaventura de Sousa (1995b) Toward a New Common Sense: Law, Science and Politics in The Paradigmatic Transition. New York: Routledge.

-Santos, Boaventura de Sousa (1995a) "Los tribunales en las sociedades contemporáneas" en Pensamiento Jurídico. No 4. Bogotá, Facultad de Derecho, Universidad Nacional. Pp. 5-38

-Santos, Boaventura de Sousa (1998) De la mano de Alicia; lo social y lo político en la post-modernidad, Bogotá: Siglo del Hombre, Uniandes.

-Santos, Boaventura de Sousa (2001ª) "Los paisajes de la justicia en las sociedades contemporáneas" in Santos y García Villegas (2001) El caleidoscopio de las justicias en Colombia, Bogotá: Uniandes et. al.

-Santos, Boaventura de Sousa (2001b) "Derecho y democracia: la reforma global de la justicia" in Santos y García Villegas (2001) El caleidoscopio de las justicias en Colombia, Bogotá: Uniandes et. al.

-Santos, Boaventura y García Villegas, Mauricio (2001) El caleidoscopio de las justicias en Colombia, Bogotá: Uniandes - Siglo del Hombre

-Santos, Boaventura; Maria Leitão; Joao Pedroso; y Pedro Lopes (1996) Os Tribunais nas Sociedades Contemporâneas. O Caso Português. Oporto, Afrontamento.

-Scheingold, Stuart (1989), "The Constitutional Rights and Social Change: Civil Rights in Perspective", Michael McCann y Gerald Houseman (eds.), Judging the Constitution, Critical Essays on Judicial Lawmaking, Scot: Foresman and Company. Pp. 73-92

-Sripati, Vijayashri (1998), "Toward Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead" in 14 American University international Review, 413

-Tietel, (1997) Transitional Jurisprudence, The Role of Law in Political Transformation, 106, Yale L. J. 2009.

-Touraine, Alain (1977) The self Production of Society, Chicago: University of Chicago Press

-Touraine, Alain (1988) La Parole et le Sang, Paris: Odile Jacob

-Trubek, David (1977) "Complexity and Contradiction in Legal order: Balbus on the Challenge of Critical Social Thought About Law" in Law and Society Review, 529

-Tushnet, Mark (1984) "An Essay on Rights" in Texas Law Review, Vol. 62 # 4

-Tushnet, Mark (1984) "An Essay on Rights" in Texas Law Review, Vol. 62 # 4

-Uprimny, (2001) "Las Transformaciones De La Administracion De Justicia En Colombia" in Santos García Villegas eds., El caleidoscopio de la justicia en Colombia, Op. Cit Pp. 261-308

-Uprimny, Rodrigo (1996) "Violencia y acción colectiva: una comparación entre Bolivia y Colombia" in VV.AA. Gobernabilidad, constitución y democracia en Colombia, Bogotá: Universidad Nacional. Pp. 213-227

-Wayne William. (1997) "The two faces of judical activism" in David O' Brien. Judges on judging. Views from the bench. New Jersey, Chatham House Publishers. Pp. 302-314

-Yang, Kung (1998) "The Constitutional Court in the Context of Democratization: the Case of South Corea" Verfassung und Recht in Ubersee 31, 160-170

-Zirzak, Spencer (1996), "Hungary´s Remarkable, Radical, Constitutional Court," Journal of Constitutional Law in Eastern and Central Europe 3(1), 1-56.