Vol. 27 No. 2 (February 2017) pp. 32-35
CONSTITUTIONAL COURTS AS MEDIATORS. ARMED CONFLICT, CIVIL-MILITARY RELATIONS, AND THE RULE OF LAW IN LATIN AMERICA, by Julio Rios-Figueroa. Cambridge: Cambridge University Press (Comparative Constitutional Law and Policy Series) 2016. Hardcover: US$ 110.00; Kindle Edition: US$ 61.46. Print ISBN: 978-1107079786.
Reviewed by Raul A. Sanchez-Urribarri, Department of Social Inquiry, La Trobe University, Melbourne, Australia. Email: R.Sanchezu@latrobe.edu.au
Scholarship on comparative judicial politics continues to mature. Works like Rios Figueroa’s insightful CONSTITUTIONAL COURTS AS MEDIATORS offer theoretical and methodological contributions that go well beyond the field, speaking to a broader audience with an interest in how institutions foster (or disincentive) different kinds of approaches to judicial decision-making, and political behavior more generally. The book transcends recent accounts of judicial power in comparative perspective, by offering an alternative approach to how constitutional courts exercise their prerogatives and contribute to governance in democratic societies and beyond.
CONSTITUTIONAL COURTS AS MEDIATORS provides a new approach to the nature of the judicial intervention of constitutional courts in cases involving the recurring participation of competing parties (which is frequently the case in cases of constitutional disputes), that is, “cases that transcend the present conflict (…) and instead looks ahead to forging a creative solution (…) that integrate the views of the actual actors in the dispute with the more permanent roles of the institutions, groups, or principles that they represent” (p. 8). Rios-Figueroa highlights that at least part of the judicial conflict-solving role takes place through mediation, conceiving courts as institutions that “facilitate agreements by helping each party to understand the other party’s views about the nature of the problem and how they think it might be best solved” (p. 21). Finding “the right solution” to this type of conflicts, then, might not refer to reaching the most optimum outcome for the case in hand as a function of ideological, strategic or legal considerations, but would require thinking about how best to provide actors with information to solve their conflicts and with actual tools to carry out their mission in a seamless and effective manner. This approach downplays the adversarial nature of constitutional conflicts, whilst bringing to scholars’ attention the deliberative character of decision-making inherent to at least some types of constitutional cases. Moreover, it invites us to consider the substance of the conflicts in question, and pause to consider the purpose of the intervention of courts in some political matters. Courts might not be there to adjudicate and create policy, but to assist in creative ways conflicting policy actors in achieving their legal policy goals.
With this framework in mind, CONSTITUTIONAL COURTS AS MEDIATORS focuses on ongoing, protracted conflicts between civilian governments and the armed forces. This is an issue that was particularly pressing for democratizing societies after the 1990s, and has become even more important with new challenges emerging in the post 9/11 context – as the brief comparative analysis offered in Chapter Seven with respect to Israel, Pakistan and Turkey clearly illustrates. As Rios-Figueroa points out, the stakes are higher “in contemporary democracies with a history of military intervention in politics and where the armed forces’ role is not confined to external defense but rather involves internal security” (p. 4). According to the book, constitutional courts are particularly effective tools to strike a balance between the competing imperatives of enabling and limiting military forces in their security mission, among other reasons, because they are able to reduce the uncertainty surrounding different aspects of government-military relations and are able to provide information to the actors in conflict, in a way “that reduces the uncertainty that surrounds [*33] their relations, helping them to cooperate and resolve their conflicts” (p. 3). Hence, the military is not left on its own devices to make critical security decisions, nor is it limited to exercise its security role effectively.
Rios-Figueroa introduces this premise in Chapters One (Introduction), and especially in Chapter Two, where he develops the theory more fully and explains the different conditions that would affect a constitutional court’s likelihood to develop mediation-like informative jurisprudence. Thus, in his own words “constitutional courts that are independent, are accessible, and have ample powers of judicial review can obtain, process, and credibly transmit relevant information (…). Specifically, independence is linked to he court’s credibility. Access is related to the court’s capacity to get information. And powers of judicial review are related to the court’s capacity to transmit such information in an effective manner” (p. 24). These independent covariates are duly operationalized and discussed in Chapter Two (pp. 24-32), whilst “informative jurisprudence” – the key dependent variable – is discussed next, along with potential rival causes and other details pertaining to the specific instance of constitutional courts as mediators in cases dealing with armed forces.
The book’s empirical analysis focuses first on constitutional jurisprudence in Colombia and Peru – two countries that, despite their importance for democratization studies and socio-legal research still yearn for additional judicial politics analysis; and Mexico, a country that has received greater scholarly attention (see Castagnola and Lopez-Noriega’s recent volume for a background discussion, 2016). These cases vary substantially in terms of the existence and relevance of informative jurisprudence (p. 13). Thus, Chapter Three discusses constitutional jurisprudence on military autonomy in the Colombian case since 1958, with special attention to the last two decades. Although Colombia has been an embattled democracy for a long time, the country experienced a significant change after the creation and subsequent entering into force of the 1991 Constitution – a landmark change that put the new constitution at the center of Colombian politics. One of the most important modifications introduced in the new text was a new Constitutional Court, separate from the Supreme Court, which was endowed with institutional features theoretically conducive to generating mediation-like jurisprudence. Through a combination of qualitative and quantitative assessment, Rios-Figueroa illustrates the notable role of the Constitutional Court to help solve conflicts between the military and civilian governments in Colombia – a country that has experienced violent conflict involving military and civilian actors for decades. This case illustrates very well Rios-Figueroa’s theory, whilst providing an additional gateway for comparative law and courts scholars into the Colombian case. As such, it could work very well on its own as a chapter to be discussed in post-graduate seminars in comparative law and courts courses.
Chapter Four, on the other hand, focuses on the intriguing case of constitutional jurisprudence on military autonomy in Peru, which is one of the least studied in the region (with notable exceptions, e.g. Dargent 2009; Ponce and Tiede 2014). This lack of scholarly attention is a pity for several reasons, including the need to understand better he role of the judiciary – especially the Constitutional Tribunal – under Fujimori’s authoritarian rule and the subsequent return to democracy. As Rios-Figueroa points out, the Peruvian case offers important lessons for students of military-government tensions in a context of varied military conflict and change of regime, highlighting that Peru’s Constitutional Tribunal fails to play a more positive role in shaping civil-military relations in Peru due to its lack of independence and limited rules of access. Subsequently, in Chapter Five, Rios-Figueroa turns his attention to Mexico, a case that the author finds disappointing: The Mexican Supreme Court behaved more like a arbiter and less like a mediator, refusing to engage in behavior conducive to fixing the uncertainties inherent to civilian-military relations. Rios-Figueroa blames the lack of wide access as an institutional incentive that explains this disappointing pattern. [*34]
Finally, Chapters Six and Seven display Rios-Figueroa’s best effort to generate comparative, cross-national theorizing from the cases at hand. Chapter Six is a genuine comparison of the jurisdiction in question with respect to judicial regulation of the use of force, which flows well from the discussion of the three individual cases in historical perspective. Next, as mentioned above, Chapter Seven takes the discussion outside of the Latin American realm – to Israel, Pakistan and Turkey – discussing tentative applications of the theory for other renowned cases where the judiciary, especially constitutional courts, have played (or otherwise failed) to play a constructive role to solve conflicts between civilian and military authorities.
The discussion above illustrates well some of the key strengths of this book – well-developed theorization; excellent discussion vis-à-vis related scholarship; methodologically rigorous research, and written in an accessible way for scholars from different traditions and levels of training. Once again a book focused on Latin America challenges existing research and builds upon it in order to expand our theoretical view of courts, as other remarkable works have done in the past – such as Helmke’s “Strategic Defection” theory (Helmke 2005); Hilbink’s study of judicial politics in authoritarian/democratizing Chile (Hilbink 2007); Kapiszewski’s thorough analysis of judicial assertiveness in Brazil and Argentina (Kapiszewski 2012); and Staton’s assessment of the Mexican Constitutional Court (Staton 2010) – just to name a few works that have greatly contributed to our common understanding of constitutional courts in the region and globally (For a general introduction, see other works referenced in Kapiszewski and Taylor 2008).1
There are several aspects of this book that call for further research. For instance, in all three cases, subsequent work should examine more carefully the relevance of the ideational explanation for disparate trajectories of constitutional jurisprudence observed within and across the cases under study. It is important to make sense of the different Constitutional Court’s judges’ “senses of mission” and perceived roles in exercising their duties. Moreover, the success (or not) of the Constitutional Court’s role as a mediator might depend as well on the existence of links and patterns of institutional trust across different actors (Pereira 2005). Finally, and in connection to this latter point – and as Rios-Figueroa points out early in the book – the role of a supportive support network for constitutional litigation cannot be understated, along with the informal connections with these networks often have with the judiciary and other state actors (for additional comments on the importance of the informal dimension of judicial politics see Trochev and Ellett 2014; Dressel et al 2017 forthcoming). Subsequent works – by Rios-Figueroa or other scholars – could continue expanding upon these and other questions in cross-national perspective, helping to elaborate a more comprehensive picture of when, why, and under what conditions constitutional courts perform a mediation role, engage in creative jurisprudence and become influential political actors in this regard.
Castagnola, Andrea, and Saul Lopez Noriega (eds.). 2016. JUDICIAL POLITICS IN MEXICO: THE SUPREME COURT AND THE TRANSITION TO DEMOCRACY. New York and London: Routledge.
Dargent, Eduardo. 2009. “Determinants of Judicial Independence: Lessons from Three ‘Cases’ on Constitutional Courts in Peru (1979-2007).” JOURNAL OF LATIN AMERICAN STUDIES 41(2): 251-78.
Dressel, Bjoern, Raul Sanchez-Urribarri, and Alexander Stroh. 2017. “The Informal Dimension of Judicial Politics.” ANNUAL REVIEW OF LAW AND SOCIAL SCIENCE (Forthcoming).
Helmke, Gretchen. 2005. COURTS UNDER CONSTRAINTS: JUDGES, GENERALS, AND PRESIDENTS. Cambridge: Cambridge University Press. [*35]
Hilbink, Lisa. 2007. JUDGES BEYOND POLITICS IN DEMOCRACY AND DICTATORSHIP: LESSONS FROM CHILE. Cambridge: Cambridge University Press.
Kapiszewski, Diana, HIGH COURTS AND ECONOMIC GOVERNANCE IN ARGENTINA AND BRAZIL. New York (2012): Cambridge University Press.
Kapiszewski, Diana, and Matthew J. Taylor, “Doing Courts Justice? Studying Judicial Politics in Latin America,” PERSPECTIVES ON POLITICS 6 (2008): 741.
Pereira, Anthony. (2005). POLITICAL (IN)JUSTICE: AUTHORITARIANISM AND THE RULE OF LAW IN BRAZIL, CHILE AND ARGENTINA. Pittsburgh: University of Pittsburgh Press.
Ponce, Aldo, and Lydia Tiede. (2014). “Evaluating Theories of Decision-Making on the Peruvian Constitutional Tribunal.” JOURNAL OF POLITICS IN LATIN AMERICA 6(2): 139-64.
Staton, Jeffrey. 2010. JUDICIAL POWER AND STRATEGIC COMMUNICATION IN MEXICO. CAMBRIDGE: Cambridge University Press.
Trochev, Alexei, and Rachel Ellett. 2014. “Judges and their Allies: Rethinking Judicial Autonomy through the Prism of Off-Bench Resistance.” JOURNAL OF LAW AND COURTS 2: 67-91.
© Copyright 2017 by author, Raul A. Sanchez-Urribarri.