Beyond Judicial Reform: Courts as Political Actors in Latin America

Abstract

The Rule of Law in Nascent Democracies: Judicial Politics in Argentina. By Rebecca Bill Chavez. (Stanford: Stanford University Press, 2004. Pp. 255. $55.00 cloth.) Drowning in Laws: Labor Law and Brazilian Political Culture. By John D. French. (Chapel Hill: University of North Carolina Press, 2004. Pp. 233. $59.95 cloth, $24.95 paper.) Democratization and the Judiciary: The Accountability Function of Courts in New Democracies. Edited by Siri Gloppen, Robert Gargarella, and Elin Skaar. (London: Frank Cass Publishers, 2003. Pp. 210. $115.00 cloth, $34.95 paper.) Courts Under Constraints: Judges, Generals And Presidents In Argentina. By Gretchen Helmke. (Cambridge: Cambridge University Press, 2005. Pp. 240. $60.00 cloth.) Democratic Accountability in Latin America. Edited by Scott Mainwaring and Christopher Welna. (Oxford: Oxford University Press, 2003. Pp. 352. $125.00 cloth, $47.44 paper.) Latin American Law: A History of Private Law and Institutions in Spanish America. By Matthew C. Mirow. (Austin: University of Texas Press, 2004. Pp. 360. $45.00 cloth.) Legal institutions have always factored into Latin America's political fortunes. Law is an essential ingredient in determining who gets what, when, and how. Yet until recently, law and its attendant institutions—courts, legal codes, and the legal profession—were not an important component of social science research on Latin America. The quantity of research on the judiciary does not compare even remotely to the vast literature on presidents and assemblies, under either authoritarianism or democracy. As these new books illustrate, on the heels of an energetic burst of research on judicial reform, scholars are once again turning their focus to the political, economic, and social implications of law and legal systems [End Page 269] in the region's evolution. Implicit in all these works is the notion that courts have an important effect on governance. Even in the breach, when they are subservient to the executive branch or responsive primarily to elites, courts set rules, reflect values, and allocate societal goods. This gives courts a degree of influence that may be as significant as that of the elected branches of government, even if it is less recognized and not always conducive to basic egalitarian ideals of democracy. This renewed interest in courts as political actors follows a long hiatus. The collapse of the law and development movement in the early 1970s was engendered in part by recognition that many of the reforms it advocated might well have effects contrary to those sought by legal reformers. Courts were revealed to be far from their democratic ideal: they were not independent and neutral political institutions, but rather, had an influential regime-supporting role, especially inasmuch as "the formal neutrality of the legal system is not incompatible with the use of law as a tool to further domination by elite groups" (Trubek and Galanter 1974, 1083). This would seem in retrospect a reason for more study, rather than less. But the combination of the policy community's cooling interest and the escalating wave of authoritarianism across the region dampened all but the most legalistic study of Latin American courts. With the resurgence of minimally democratic regimes in the hemisphere, scholarly focus has returned to the courts' role in new democracies, with study of the courts' role evolving in three general directions. A first group has approached courts as dispute resolution mechanisms that can be improved through procedural reforms, with a focus on efficient problem solving aimed at economic development (e.g., Buscaglia et al. 1997; Castelar Pinheiro 2000). A second set of scholars has focused on the larger sociological context within which courts operate, and emphasized gaps in the application of the law as a reflection of patterns in overall society (e.g., Méndez et al. 1999). The implications for evolving democratic practices are paramount, if broadly spelled out, and courts are seen as guarantors of "horizontal accountability" (O'Donnell 1994), even though the prospects for a robust...

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