by Javier A. Couso, Alexandra Huneuus, and Rachel Sieder (eds). New York: Cambridge University Press, 2010. 312pp. Hardback $85.00/£55.00. ISBN: 9780521767231. eBook. $68.00. ISBN:9780511731044.
Reviewed by Miguel Schor, Visiting Professor of Law, Drake University School of Law, 2010-2012, Professor of Law, Suffolk University Law School. Email: mschor [at] suffolk.edu.
Latin America democratized in the 1980s and underwent profound constitutional transformations. It has proven easier to implement electoral democracy, however, than to realize constitutional guaranties. How to institutionalize the operative rules of the democratic game has become, therefore, a pressing research issue. While there is a reasonably vast literature on democratization, the literature on how to make constitutions work, on the other hand, is significantly thinner. The relative dearth of literature on constitutionalism says less about the importance of the topic than it does about the state of interdisciplinary scholarship in academia.
CULTURES OF LEGALITY: JUDICIALIZATION AND POLITICAL ACTIVISM IN CONTEMPORARY LATIN AMERICA plays an important role in helping to fill this gap. It is a challenging collection of essays written by a group of first-rate scholars well versed in the political science literature on courts. The introduction (Huneeus et al. at pp.3, 7) defines legal culture as a set of contested and changing ideas and argues it is a useful construct in understanding the role that courts play in the new democracies throughout the region. Although ideas matter in understanding why citizens are increasingly turning to courts to deal with disputes once thought to be political in nature and why courts are responding with useful outputs, the role of legal ideas has been understudied and under-theorized by the social science scholarship on courts (Schor 2009, pp.188-192).
The various chapter studies both deepen and challenge the thesis that ideas matter in understanding judicial behavior. Kapiszewski’s (pp.51, 52) study of the Brazilian national high court argues that we need to combine institutional and cultural explanations for an adequate account of why courts “become engaged in politics.” Judicial independence and professional competence are a necessary but not a sufficient explanation for judicial behavior. Kapisweski (p.59) concludes that judicial “ideas about law and the judicial endeavor, and the practices they develop as they do their job, are at the heart of the cultural approach to explaining judicial decision-making.” The Mexican Supreme Court presents a puzzle since it first inserted itself into politics by vigorously enforcing separation of powers rather than effectuating constitutional rights. Ansolabehere (p.78) explores the role of “interpretive frameworks” in explaining why that court is becoming more active in effectuating rights. Huneeus [*457] examines why national high courts in Chile, Argentina, and Venezuela have resisted rulings from the Inter-American Court of Human Rights. The answer, she suggests (p.112), is that “judicialization and regional integration are not mutually reinforcing phenomena but, rather, in competition.”
Smulovitz challenges the thesis of the book in her chapter on Argentina. She argues that legal culture does not explain why Argentines are increasingly turning to courts. The judicialization of politics in Argentina cannot be explained by culture because the opinion data “shows a population that distrusts the judiciary but at the same time asserts its willingness to use it” (p.240). Smulovitz emphasizes the interplay of two other factors. One involves the reforms of the Argentine constitution in 1994 that expanded rights and enhanced judicial independence. The other, building on the work of Epp (1998), is the strengthening of the support structures that facilitate legal mobilization.
CULTURES OF LEGALITY contains two invaluable overview chapters. Couso ( p.141) explores the “role that . . . constitutional theory has played in transforming the region’s legal culture." Prior to the 1980s, dictatorship and oligarchies were the norm throughout the region. Not surprisingly, constitutional scholarship was an intellectual backwater and courts relied on formalism to accede to existing power relations. Democratization in the 1980s was accompanied by two sets of changes. One is that constitutions were rewritten and refurbished throughout the region to make them more relevant to the challenges of democracy. The other set of changes involved legal culture. Constitutional scholarship, once the backwater of legal theory, gained prominence and importance with the transition to democracy. The older formalist approach to constitutions, which facilitated dictatorship, gave way to newer approaches that emphasize constitutional values. This brings constitutional courts in Latin America more in line with how constitutional courts operate around the world (Robertson 2010). Couso ( p.152) concludes that the “dramatic transformation of constitutional theory over the last two decades . . . represents nothing short of a conceptual revolution.”
Domingo (, pp.254, 274) takes on a challenging task in providing a “preliminary mapping of the different component pieces that constitute the process of judicialization that has emerged in Latin America over the last two or three decades.” She emphasizes three different component pieces: ideas, actors, and institutions. Ideas such as rights, the rule of law, and accountability now play a prominent role in legal discourse throughout the region. These are not new ideas but they were long trumped by the need to provide order. Freed of their authoritarian constraints, these ideas are flowering by becoming linked to the aspirations of new democracies. The actors include both international and domestic human rights activists. The experience gained in contesting military dictatorship by grass roots activists and legal think tanks is now being used ( p.268) to “service other rights claims” and “legal debates.” Constitutions throughout the region have been rewritten to expand rights and reform the judiciary. Domingo (2010, p.274) ends the chapter on a cautionary [*458] note since “poor quality citizenship” and “deficient rule of law” still characterizes the “reality of a vast proportion of the population in Latin America.”
CULTURES OF LEGALITY will be of interest both to legal scholars and social scientists who study courts in new democracies. The individual chapter studies are invaluable even if some suffer from an excess of technical jargon that mars the exposition of ideas. Although CULTURES OF LEGALITY marks an important new approach to the study of courts, it is clearly the first and not the last word on the role of legal culture in the judicialization of politics. The editors conclude ( pp.3, 18) “It is our hope that this volume will spur a new research agenda on the relationship between law and politics in Latin America that is sensitive to the cultural dimensions of processes of judicialization.”
Epp, Charles R. 1998. THE RIGHTS REVOLUTION. Chicago: University of Chicago Press.
Robertson, David. 2010. THE JUDGE AS POLITICAL THEORIST: CONTEMPORARY CONSTITUTIONAL REVIEW. Princeton: Princeton University Press.
Schor, Miguel. 2009. “An Essay on the Emergence of Constitutional Courts: The Cases of Mexico and Columbia.” INDIANA JOURNAL OF GLOBAL LEGAL STUDIES 16: 173-194.
© Copyright 2011 by the author, Miguel Schor.