The Failed Law of Latin America

Abstract

I personally believe it is a good thing for a nation to have a firm conviction of its worth; but it should have the decency and the manners to keep that conviction to itself. We did not. We showed it constantly, and I am sorry to say at times we still do. Theodore Roosevelt, 1933 Law’s failure in Latin America is the standard background for projects of law reform over the past half century of international development assistance to the region. This “failed law” is quite peculiar though. Reformers often restate general limitations of law as particular deficiencies of Latin American legal systems. They measure shortcomings based on legal constructs often incommensurate with local arrangements. And, they generalize problems in one sector or country on Latin America as a whole. As a result, no amount of simple law reform can undo such a constant and irrepressible image of failure. Viewed this way, Latin America's failed law is principally a discourse facilitating legal change. It also denies much of any value to existing law anywhere in the region. The latter may consist of different legal policies, local interests expressed in law, accumulated investments in specific legal institutions, or other considerations of the sort. Consequently, this failed law formula for reform is a harmful device. It undermines state law and institutions while simultaneously purporting to support them. It keeps a range of questions off the table, depriving all of the Americas of any real engagement with the pre-reform options embodied in the law of Latin American slates. And, it weakens the position of many Latin Americans within international legal politics.

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