Medidas cautelares y nuevas funciones del juez en la formulación de políticas públicas

Abstract

Social, cultural, and political transformations generated a discussion around the legitimacy of public policies. Administrative law principles such as the presumption of legitimacy and the capacity of Administration to execute its own decisions are now being discussed. Increasingly, citizens and NGOs go to the courts to seek protection for the rights written in bills and Constitutions. Judges must mediate between the public interest as defined by government and individual rights that they must interpret. They do so by intervening in the administrative sphere, using judicial injunctions that stop the decisional and implementation process. In this article we explain the current relevance of those injunctions as the result of two structural trends: judicialization and emergency. Both processes are deeply interrelated and thought the enactment of injunctions, courts change substantially the way in which they participate in the formation of public policies. Its control ceases to be ex post and begins to be part of the very same process of policy formation.