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The Judicialization of Politics in Latin America (review)

From: Latin American Politics & Society
Volume 49, Number 3, Fall 2007
pp. 207-211 | 10.1353/lap.2007.0033

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Scholars of democratization consider the rule of law to be central to the quality and stability of democracy, yet the comparative politics literature has historically ignored an institution positioned to play a critical role in strengthening legality and constitutionality: the judiciary. With regard to Latin America, this neglect results partly from political reality; executives in the region have long manipulated courts, compromising their potential as autonomous political actors. Yet recent scholarship (e.g., Taylor 2004; Uprimny 2004) suggests that while judicial weakness persists in some Latin American countries, in others, social relations are becoming increasingly "judicialized," and courts are assuming more important political roles.

This book makes a major contribution to our understanding of the contours and consequences of judicialization. One of the few edited volumes to focus exclusively on law, courts, and politics in Latin America, the 12-chapter collection comprises a series of conference papers presented at the Institute for the Study of the Americas in London in March 2004. The editors and authors represent a variety of backgrounds (scholars of political science and law, plus a legal practitioner); hail from eight different nations (five Latin American countries, the United States, the United Kingdom, and Sweden); and offer a rich mix of viewpoints. The volume generates a transnational discussion on themes regarding courts and politics in Latin America that are as broad as they are important.

Unfortunately, neither the volume's introduction nor its afterword teases out the intriguing empirical variation the chapters convey or integrates their fascinating findings into a thematic framework for future inquiries. This review will attempt to do so briefly by summarizing the answers the authors offer to the three questions that constitute the book's intellectual scaffolding. The first question, alluded to in the introduction, is whether the impetus for judicialization came from elite actors or institutional reform ("from above") or from society ("from below"), or whether the phenomenon was driven by international developments ("from abroad") (4–5). The second question follows from the first: have courts modified their decisionmaking practices or taken on broader roles as a result of judicialization? Third, how have the different types of judicialization under study affected regimes, politics, and courts themselves?

With respect to the first question, chapters by both Julio Faundez and Fiona Macaulay focus on dynamics that are occurring in place of or in tandem with judicialization "from below." Faundez suggests that in rural Peru, extrajudicial institutions are administering community justice mainly because of the weakness of the local-level state; he sees "judicialization" of these institutions (regulating or officially incorporating them) as potentially counterproductive (187–89). Macaulay describes the complex interplay between the increasing judicialization of domestic violence in Latin America and, where judicial reform has failed to increase access to justice, the inadvertent diversion of such conflicts toward informal arenas for resolution (211–12). Catalina Smulovitz, by contrast, discusses the successful development in Argentina of two types of judicialization from below (judicialization "as a petitioning tool" and "as a discourse of rights") (161), attributing their emergence to institutional factors and potential claimants' skills and willingness to accept "extralegal results" as ends in themselves (175–76, 162–63).

Both Pilar Domingo and Rogelio Pérez-Perdomo tell top-down, elite-led stories about Mexico and Venezuela, respectively. According to Domingo, Mexican leaders carried out judicializing reforms in order to address looming legitimacy crises; correspondingly, political parties, more than societal actors, have taken advantage of the courts' broadened judicial review powers (38–39). Pérez-Perdomo points to two phases of judicialization in Venezuela: one in which the Supreme Court was more active (1992–99) and another in which politicians used it to further their own ends (1999–present). In both periods, it was elites who turned to the courts with the goal of steadying an unstable political regime (131).

Three other chapters recount a "mixed model." Rogério Arantes holds that in Brazil, judicializing reform (including the constitutionalization of myriad social rights and broadened access to the judiciary) came "from above" (although, in contrast to Mexico and Venezuela, much of the impetus came from within judicial institutions themselves) (249). After reform, however, Brazil's courts became both an important arena for elite political contestation...

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