THE JUDICIALIZATION OF POLITICS IN LATIN AMERICA

Vol. 16 No.5 (May, 2006), pp.309-314

THE JUDICIALIZATION OF POLITICS IN LATIN AMERICA, by Rachel Sieder, Line Schjolden, and Alan Angell (eds.). New York: Palgrave MacMillan, 2005. 320pp. Hardcover. $69.95 / £40. ISBN: 1-4039-7086-6.

Reviewed by Matthew M. Taylor, Department of Political Science, University of São Paulo. Email: taylormm [at] uol.com.br

The worldwide phenomenon of the ‘judicialization of politics’ is a fashionable topic, and as this book proves, contemporary Latin America is no exception. Institutional reforms, magistrates’ newly discovered power in the wake of democratic transitions, changing social attitudes, and widespread popular demand for judicial services have transformed judges and tribunals into potentially influential actors in regional politics. By reinterpreting existing law, or more effectively applying and enforcing existing rights, courts may have a significant effect on policy choices and governance, and as a result, on the scope and depth of democratization in the region. While it is not clear that all courts are gaining in real power, or that increased power will always produce positive regime effects, there is little doubt that the judiciary’s role is potentially much greater and its use much broader than before the cobwebs of authoritarian rule were pulled back across much of the region. But the distance between potential and real judicial influence is great, and our understanding of how the empirical contours of judicialization in Latin America conform to theory has remained largely speculative.

Enter this collection of essays by many of the regional pioneers of the field. The volume is a useful complement to other recent cross-national studies of the political role of courts in Latin America (e.g., Gloppen et al. 2004; Mainwaring and Welna 2003), and in fact relies on a few of the same contributors. It is organized in country chapters covering the region’s seven largest nations, as well as relative outlier Costa Rica, which despite its tiny size provides a valuable case study of high judicial impact. The essays are complemented by intriguing topical studies, as well as by a thought-provoking introduction by the editors and a brief but theoretically stimulating afterword by Guillermo O’Donnell.

The volume’s organization is both a weakness and a strength. As is often the case with edited volumes, the chapters are discrete pieces, both empirically and methodologically. This prevents the book from realizing its considerable potential for offering innovative cross-national theory. It also means the editors’ exhortation in the book’s introduction for an “initial attempt to explore a comparative framework” of judicialization rings hollow. The absence of a conclusion that explicitly draws the comparative lessons from the sum of the essays is particularly conspicuous. Nonetheless, the introductory chapter lays out a dense and rich research agenda for study, advocating the comparative analysis of institutional features, legal culture, legal mobilization, access to justice, [*310] transnational dimensions of judicialization, and the role of the judiciary in the national political system as a whole.

The subsequent chapters then explore in comprehensive detail various facets of this complex research agenda, thus serving as important reference works on the most important elements of judicialization in each of the given countries. Empirically, the essays depict a considerable range of intensity in judicialization across countries, as well as distinct levels of court impact, varying from high policy impact in Colombia, Costa Rica and Brazil, to various shades of ineffectiveness – albeit for widely different reasons – in Argentina, Chile and Venezuela. Methodologically, the authors rely on a broad range of approaches for analyzing the considerable diversity of patterns of judicialization in the region, ranging from quantitative analysis of the use of the discourse of rights in Argentina (Smulovitz), through more traditional case studies of important legal cases brought by both the opposition and the Chávez government in Venezuela (Perdomo), to a predominantly institutional analysis of Brazil’s courts in light of the rigid “constitutionalization” of politics in that country (Arantes). Despite these differences, and although each author draws on a distinct literature, the repeat appearance of Cappelletti (1989), Epp (1998), and Merryman (1985) among the cited references – coupled with the complete absence of authors such as Clayton and Gillman (1999), Ginsburg and Kagan (2005), Knight and Epstein (1996), or Segal and Spaeth (1993) – suggest that the framing of the theoretical debate over judges’ impact on policy is quite different in Latin America than in the U.S. or Europe. Despite a few studies of judges’ behavior (e.g., Helmke 2005), the study of Latin American courts (and this volume is no exception) remains focused not on how judges and courts actually reach decisions that impact politics, but primarily on whether they do and, to a far less systematized extent, to what effect.

The volume perhaps makes its greatest contribution to the judicialization literature by explicitly recognizing that there may be many patterns by which judicialization takes place. In addition to the typical “top-down” approach by which judges, and particularly high court judges, propel judicialization forward through constitutional review, many of the most creative ideas in the volume explore patterns of the judicialization “from below” or “from abroad.” Although this view has its problems – at several points this reviewer became apprehensive that the concept of judicialization might be watered down beyond recognition – the authors are very creative in showing how such patterns represent an important element of judicialization in the Latin American case. Without wishing to withhold merit from the many other excellent country studies, which will surely become ready references for area scholars, three of the contributions serve as good illustration of this point.

Faundez’s chapter on Peru suggests a particularly Latin American variant of judicialization, through the extension of legal procedure to areas in which formal [*311] legal institutions do not or can not reach. Faundez investigates community justice institutions that operate parallel to the state, in an informal fashion that may be “far from the ideal model of liberal legality” but that serves an essential and unfulfilled need at the local level. The subsequent incorporation of these forms of community justice into national justice systems may have unsavory implications – including the weakening of formal court systems – but it may be the only possible solution for the state. Judicialization, in other words, is not always and everywhere the outcome of an advanced bureaucracy or a “top-down” process of judicialization by elites and courts; it may well be the result of community institutions that arise because of a long history of citizen exclusion from formal legal systems by language barriers, high costs, and deep distrust of the state.

Macaulay’s essay on the judicialization of spousal abuse – a further example of judicialization “from below” – emphasizes the unintended consequences of efforts by women’s groups in Brazil to create a legal framework that would strengthen sanctions against domestic violence. The absorption of these proposals by the state distorted their intent, with unintended, perverse effects that reduced the gravity of punishment and led to the adoption of forms of conflict resolution (such as conciliation) which tended to place the burden on the abused. The clear implication of this essay is that greater emphasis needs to be given to comparing idealistic hopes of judicial impact with real-world practical outcomes, and to analyzing the effects of institutional design on the concrete, tangible outcomes of increasing recourse to the courts as a policy tool.

Regarding judicialization “from abroad,” Sikkink emphasizes the effect of both domestic and foreign opportunity structures on the differing levels of judicialization of human rights offenses in Argentina, Chile, and Uruguay. She concludes intriguingly that the Argentine case illustrates that “political opportunities are not only perceived and taken advantage of, but they are also created by social actors.” The dynamic Argentine human rights movement was able to exploit both domestic and international opportunity structures, in particular by creating “insider-outsider coalitions,” that put pressure on politicians at home by increasing pressure on them abroad, either by pushing forward embarrassing extradition cases or by pressing foreign leaders to make public demands on domestic politicians.

Like much of the regional judicialization literature, this volume raises as many questions as it answers about the ramifications of increasing recourse to courts and legal mechanisms. Three questions in particular are still pending in the literature on Latin American courts: does the judicialization of policy in fact have a clear, discernible and predictable effect on broader policy outcomes; does judicialization imply a greater politicization of courts; and what will increasing judicialization mean for democratization?

Judicialization may in fact be taking place to great fanfare, but with little [*312] practical effect. Couso’s chapter on Chile is a reminder that greater recourse to the courts does not necessarily translate into an increasingly important judicial impact, since judges may be naturally reticent, by either professional training or internal hierarchy, to challenge policy. Furthermore, in countries like Brazil, weak forms of binding precedent – combined with diffuse controls whereby many judges can potentially offer relief – mean that high court decisions can often be safely bypassed by lower court judges, leading to multiple and often contradictory judicial effects on policy. But even bold and binding judicial decisions may be weakly implemented: as Kapiszewski (2006) has noted in regard to Argentina, even politically significant decisions may be watered down by a failure of compliance. An ongoing question for judicial scholars as they think about the policy ramifications of their research, then, is what factors provide the “glue” between these three important elements of judicialization: greater recourse to the courts, active courts willing and able to issue uniform and bold decisions, and executive compliance with court-mandated policy reversals?

A related issue relates to the flip side of judicialization – the politicization of the judiciary. Politicization has always and everywhere been the understudied sister of judicialization, despite the obvious link between increasing use of the courts in policy disputes and political battles over control of the courts. Two arguments are intermittently advanced throughout many of the contributions to this volume: first, that the legal system’s failure to meet public expectations will undoubtedly lead to disenchantment, and second, that courts may be threatened by their own decisions, even if these are taken without deliberate political motivation. This last point is significant: courts’ decisions may often be driven by factors that have little to do with judges’ choices themselves, and more to do with who has access to what types of legal instruments. While one intriguing aspect of judicialization has been the opportunity it offers previously marginalized groups to press their claims – Wilson’s chapter offers the vivid example of AIDs victims, trade unions and homosexuals as court-empowered groups in Costa Rica – the persistence of long-standing patterns of privileged forms of legal representation, the extension of these patterns into newly empowered courts, and their effects on courts’ democratic legitimacy seems especially worth investigating more deeply in the Latin American case.

Finally, the essays here raise a host of provocative new questions about the significance of judicialization in a region that has long been considered idiosyncratic along other dimensions of politics, given historical patterns of persistent informality, pervasive inequality, weak institutionalization, and strong executive dominance. As O’Donnell’s epilogue points out, not all forms of the judicialization of politics are bad for democracy. But judicialization seems to wield at least three potential threats to weak democracies: politicization may threaten judicial legitimacy just when it is most needed; judicialization may privilege some groups over others, in ways that reinforce rather than diminish existing [*313] socio-economic inequalities; and the judicialization of politics may crowd out other forms of judicial activity, such as ordinary dispute resolution, that may be equally important to the long-term success of democratic polities.

In sum, this is yet another fine and thought-provoking contribution from the University of London’s Institute for the Study of the Americas, which has paid considerable attention and devoted great resources to research on courts and judicialization in the region’s new democracies. It will undoubtedly serve as an important complement to the broader global literature on the role of courts in politics, offering an important regional perspective on the process of judicialization in transitioning democracies. The questions posed here provide a rich research agenda for further comparative work, as well as a valuable empirical contribution to our understanding of judicialization in an idiosyncratic region.

REFERENCES:

Cappelletti, Mauro. 1989. THE JUDICIAL PROCESS IN COMPARATIVE PERSPECTIVE. Oxford: Clarendon.

Clayton, Cornell W. and Howard Gillman. 1999. SUPREME COURT DECISION-MAKING: NEW INSTITUTIONAL APPROACHES. Chicago: University of Chicago Press.

Epp, Charles R. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE. Chicago: University of Chicago Press.

Ginsburg, Tom and Robert A. Kagan. 2005. INSTITUTIONS AND PUBLIC LAW: COMPARATIVE APPROACHES. New York: Peter Lang.

Gloppen, Siri, Robert Gargarella, and Elin Skaar. 2004. DEMOCRATIZATION AND THE JUDICIARY: THE ACCOUNTABILITY FUNCTION OF COURTS IN NEW DEMOCRACIES. London: Frank Cass Publishers.

Helmke, Gretchen. 2005. COURTS UNDER CONSTRAINTS: JUDGES, GENERALS, AND PRESIDENTS IN ARGENTINA. Cambridge: Cambridge University Press.

Kapiszewski, Diana. 2006. “Distributing the Costs of Crisis and Reform: The Supreme Court and Macroeconomic Policy in Post-Transition Argentina.” Paper presented at the XXVI Congress of the Latin American Studies Association. San Juan: Puerto Rico, March 2006.

Knight, Jack and Lee Epstein. 1996. “On the Struggle for Judicial Supremacy.” 30 LAW & SOCIETY REVIEW 87-120.

Mainwaring, Scott and Christopher Welna. 2003. DEMOCRATIC ACCOUNTABILITY IN LATIN AMERICA. Oxford: Oxford University Press. [*314]

Merryman, John Henry. 1985. THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA. 2nd ed. Stanford: Stanford University Press.

Segal, Jeffrey A. and Harold J. Spaeth. 1993. THE SUPREME COURT AND THE ATTITUDINAL MODEL. New York: Cambridge University Press.

Tate, C. Neal and Torbjörn Vallinder. 1995. THE GLOBAL EXPANSION OF JUDICIAL POWER. New York: New York University Press.

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