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Journal of Democracy 11.3 (2000) 169-174
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Law and Injustice in Latin America
The (Un)Rule of Law and the Underprivileged in Latin America. Edited by Juan E. Méndez, Guillermo O'Donnell, and Paulo Sérgio Pinheiro. Notre Dame University Press, 1999. 357 pp.
Debates over the "judicialization" of politics--the displacement of political conflicts from elections and legislatures to the judiciary--are no longer limited to the United States. The increasingly active role of [End Page 169] courts around the world is viewed with both foreboding (by those who fear a government of judges) and optimism (by those who think it will bring social justice, an end to state abuses, or a strengthening of market economies). None of the contributors to The (Un)Rule of Law and the Underprivileged in Latin America uses the term "judicialization," but it underlies their work. While extraordinarily critical of Latin America's legal and justice systems, the authors appear to believe that these institutions can be used to reverse the region's history of extreme inequality and injustice. Lamenting the incompleteness of the region's "democratic transition," which has brought little improvement to the lives of the poor, they look not to politics but to international and national courts and other legal actors for the next steps.
The book's tone of advocacy is the source of both its strengths and weaknesses. The authors' greatest service is in consolidating in a one-volume summary the shortcomings of a variety of Latin American institutions, showing how they perpetuate inequalities and thus reminding those who celebrate the democratic transition that the battle is far from over. Beyond its appeal to activists, the book offers a good introduction for those who have never thought much about these issues or have been overly impressed by free and fair elections, the resurgence of political parties, and some reduction in human rights abuses. Yet anyone who has worked intensively on the themes covered will inevitably be disappointed by their treatment.
The authors address their topics not as disengaged social scientists but as activists with years of experience documenting and combating abuses. As befits a group largely composed of lawyers, they present a powerful and irrefutable indictment. In the first section on "Problems of Lawless Violence," the contributors and commentators focus on the abuses committed by state institutions and in their failure to protect vulnerable groups. They conclude that although it is no longer state policy to direct violence at political opponents, violence persists (now almost exclusively afflicting the dispossessed) because of government's inability or unwillingness to eliminate it. Those even moderately knowledgeable about Latin America will already be aware of the inhuman conditions of its prisons and the inefficiency and brutality of police forces. The authors sharpen this general impression by cataloging the types of abuses and attempting to explain their causes. Roger Plant's chapter on the rural poor provides a necessary reminder of the persistence of traditional forms of violence in rural areas, in part because of incomplete state control and in part because of government connivance with local elites. The rural poor are now a minority in most countries; if their plight is ignored, they may become the victims, not the beneficiaries, of further political, social, and economic change.
The second section, "Overcoming Discrimination," also gives the new democracies low marks. The chapters and discussions on women [End Page 170] (Mariclaire Acosta and Dorothy Thomas) and race (Peter Fry and Joan Dassin) each focus on a single country (Mexico and Brazil, respectively) but this allows a more satisfactory handling of these complex themes. In contrast, Jorge Dandler's chapter on indigenous peoples and Shelton Davis's commentary may err by aiming too widely.
Although all the contributors call for legal change, a reorientation of state institutions, and a proactive approach to defending the rights of the poor, only the section on "Institutional Reform, Including Access to Justice" and Guillermo O'Donnell's "partial conclusion" address these topics directly. The articles by Reed Brody (with comments by Leonardo Franco), Jorge Correa, and...