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Crisis of Law: Is Privatization the Solution?

Michelle Bernier*


The constitutionalist Rodrigo Uprimny said that, the Colombian justice is ambiguous and paradoxical, while trying to legislate on everything, broad discretion is given to judges, who are increasingly distancing themselves and their decisions from the citizenry. It has some aspects that work well, but others are terrible which end up causing more problems than what was actually intended to be solved. The Colombian judicial system has always prided itself on enjoying a great deal of autonomy from the political regime and a notorious institutional stability. According to Sánchez (2013), to maintain this distance between politics and the judiciary, the co-optation process was fundamental, which granted autonomy to the branch to fill vacancies without them being directly appointed by the government or other power structures.


However, co-optation combined with other factors such as the lack of transparency, a misconception of judicial independence, and a few internal controls, have converted judicial autonomy and independence into judicial corporatism. Formal controls are currently insufficient, while non-formal and informal controls are gradually gaining importance as they  adapt to the needs of individuals and not to the politicians in power. For instance, the status quo of the High Courts. Cliques of power where real clans fight for their successors and their dynasty as if they were royal houses. According to Ramiro Bejarano, professor and director of the Procedural Law Department of the Universidad Externado, the causes of this problem lie in the modification of the Constitution to allow the reelection of Álvaro Uribe Vélez. This led the current government to successfully intervene in the designation and appointment of the judges of the Superior Council of the Judiciary, particularly those who are responsible for preparing the shortlists of candidates for the high courts.


The current enthusiasm for the application of Alternative Disputes Resolution (ADR) methods are due to the crisis that justice suffers. Thus, faced with a jurisdictional power that is mostly inaccessible, incapable of providing effective legal protection, costly to access, and slow and ineffective, individuals are compelled to look outside the jurisdiction for ways of deciding disputes. According to a 2019 World Bank Doing Business report, Colombia fell six places compared to the 2018 edition, going from 59th to 65th place. Among the factors that most affected the nation's performance, legal insecurity stood out, which scared away not only foreign private investment, but also citizens from the courts Thus, Colombia is undergoing a major revolution in the domain of dispute resolution. Civil justice system in most jurisdictions have been privatized, and Court decisions are disappearing. With the help of decision-making facilitators, out-of-court settlements have increased  through settlement agreements. The particularity of appealing to private agreements goes beyond the distrust in the monopoly of justice exercised by the State or in the liberal social ideal, but also finds its virtues in practical consequences: One of them is the decongestion that would mean for the judicial system the fact of bringing matters processed under the logic of the bureaucratic public company and all that this implies (slowness, political use, and resistance to change) to the private sphere where efficiency and innovation are guiding principles.


If someone asks, "In the field of civil dispute resolution, what is the most important event in recent decades?": People can easily respond to its privatization. We have seen that the practice of replacing the public trial system with ADR is gradually being accepted as the main way to resolve conflicts between individuals. Although, the practice of ADR is not limited to one jurisdiction, but is in trend almost everywhere: for instance, the United States, and most common law countries. These countries are moving towards a system that uses litigation and judicial systems  as the last resort.


According to Salamanca (2004) the favorable opinion in the doctrine and in some legislators to the use of alternative methods to the jurisdiction to solve an important range of legal conflicts, advances mainly -but not only- by three types of arguments, in some cases concurrently. The first sees in ADR, a clear and possible solution to the problem of the crisis of Justice; a way to decongest justice. The second sees a new way of facing and solving the conflicts that arise in society, different from the traditional jurisdictional recourse. That is to say, the ADR would be the manifestation of a new justice; a non-contentious but existential Justice. The third argument advances a new solution to conflicts of legal relevance, according to the type of property or right in need of protection.


The way law works is based on two closely related goals, one is a political goal, and the other is a moral order: to ensure the predictability of the law (political goal), which is understood as the ability to foresee one’s own legal consequences and act. And as far as possible to ensure that all people are equal under and before the law (moral aims) (see Lucy, Abstraction and Equality (n 65) 38). Intuitively, only one person can know in advance which legal category his behavior belongs to, and then he can modify his behavior (political goal) accordingly. Only under the same circumstances, the opinions of others will not be treated differently in the law, will they consider their treatment to be fair (moral goal).


The law’s abstract judgment has a fundamental meaning: if there is a dispute, the judge must only consider and evaluate the facts and circumstances that are clearly considered in the application of the law when applying the law. However, it is precisely the fact that the judge is prevented from considering all these circumstances, in other words, through formal justice, the judgment can be reached.


This view, which represents the current function of the law, is completely inconsistent with the special and personalized view of justice that the ADR promises. It is regarded as belonging to a broader category of cases, but is regarded as a single, unique and non-repeatable phenomenon. Though in ADR, justice is not a universal concept, but is defined by those directly involved.


ADR can assist the bench and the bar to begin digging out from the overwhelming backlog of cases caused by the pandemic. For the most part, over the past several months, both sides have been negotiating in good faith despite everyone's uncertainty as to when a case will be reached for trial. The message of ADR  is: there is no formal justice, only personal justice or temporary justice. According to this view, it is useless to view the law as a system of general and abstract rules.


* Researcher on the Youth Arbitration Network of the Bogotá Chamber of Commerce. Master of Laws and International Business from the Universidad Internacional Iberoamericana in Mexico and the Universidad Europea del Atlántico. Students for Liberty’s inaugural cohort of Fellowship for Freedom in India. Email:



Gardner, John. 2014. The Evil of Privatization. Available on:

Giabardo, Carlo. 2020. Private Justice: The Privatisation of Dispute Resolution and the Crisis of Law. Wolverhampton Law Journal, Vol. 4.

Higgins, Andrew. 2017. The Costs of Civil Justice and Who Pays?. Oxford Journal of Legal Studies, Volume 37, Issue 3, p. 687–713.

Sánchez, Nelson. 2013. Judicial Crisis in Colombia. Dejusticia, Available on:

Salamanca, Andres. 2004. Private Justice. Revista de Derecho, Vol. XVI, p. 165-186.


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