Beyond High Courts

The Justice Complex in Latin America

Matthew C. Ingram, Diana Kapiszewski, Matthew C. Ingram, Diana Kapiszewski

• Publisher: University of Notre Dame Press
• Year: 2019
• ISBN:
  9780268102845
• Topic: Politique et relations internationales
• Subtopic: Politique mondiale

Beyond High Courts: The Justice Complex in Latin America is a much-needed volume that will make a significant contribution to the growing fields of comparative law and politics and Latin American legal institutions. The book moves these research agendas beyond the study of high courts by offering theoretically and conceptually rich empirical analyses of a set of critical supranational, national, and subnational justice sector institutions that are generally neglected in the literature. The chapters examine the region's large federal systems (Argentina, Brazil, and Mexico), courts in Chile and Venezuela, and the main supranational tribunal in the region, the Inter-American Court of Human Rights. Aimed at students of comparative legal institutions while simultaneously offering lessons for practitioners charged with designing such institutions, the volume advances our understanding of the design of justice institutions, how their form and function change over time, what causes those changes, and what consequences they have. The volume also pays close attention to how justice institutions function as a system, exploring institutional interactions across branches and among levels of government (subnational, national, supranational) and analyzing how they help to shape, and are shaped by, politics and law. Incorporating the institutions examined in the volume into the literature on comparative legal institutions deepens our understanding of justice systems and how their component institutions can both bolster and compromise democracy and the rule of law.

Contributors: Matthew C. Ingram, Diana Kapiszewski, Azul A. Aguiar-Aguilar, Ernani Carvalho, Natália Leitão, Catalina Smulovitz, John Seth Alexander, Robert Nyenhuis, Sídia Maria Porto Lima, José Mário Wanderley Gomes Neto, Danilo Pacheco Fernandes, Louis Dantas de Andrade, Mary L. Volcansek, and Martin Shapiro.

CHAPTER ONE

INTRODUCTION

Beyond High Courts

Matthew C. Ingram and Diana Kapiszewski

This volume seeks to move the collective conversation and research agenda of comparative judicial politics beyond the study of high courts by offering theoretically and conceptually grounded empirical analyses of a set of critical supranational, national and subnational justice sector institutions. Aimed at students of comparative legal institutions while simultaneously offering lessons for practitioners charged with designing such institutions, the volume analyzes justice sector institutions that are generally neglected in the literature, pursuing conceptual and theoretical insights to advance our understanding of the design of these justice institutions, how their form and function change over time, what causes those changes, and what consequences they have. Further, the volume examines how justice institutions function as a system, exploring institutional interactions across branches and among levels of government (subnational, national, supranational) and analyzing how they help to shape, and are shaped by, politics and judicial politics. Incorporating these institutions into the comparative judicial politics research agenda deepens our understanding of justice systems and how their component institutions can both bolster and compromise democracy and the rule of law.

The book takes on these challenges in a specific context: Latin America. While most chapters examine one or more of the region’s large federal systems (Argentina, Brazil, Mexico, and Venezuela), the book also considers Chile, as well as the main supranational tribunal in the region, the Inter-American Court of Human Rights (IACtHR). The volume seeks to open a North-South dialogue on these crucial issues: written by a mix of scholars from the United States and Latin America, the volume represents an unusual “meeting of the minds” that transcends borders, bringing vital institutions to life in an analytically rigorous way.¹

The rest of this chapter introduces our efforts in more detail. The next section discusses the empirical and theoretical gaps in the existing literature on comparative judicial politics that motivated this volume. Subsequently, we map the empirical terrain, explaining why the volume centers on Latin America, why it focuses on formal institutions, and why it explores the particular institutions it does. The fourth section discusses the empirical, conceptual, and theoretical benefits of studying the range of institutions that compose the justice complex. On the one hand, the conceptualization and measurement strategies that have been developed in the study of high courts may be useful for analyzing other justice sector institutions; on the other hand, the theories we have generated to explain key phenomena of interest—for instance, the empowerment, behavior, and independence of high courts—may “travel” less well to other institutions, suggesting the broader justice complex represents fertile ground for theoretical development. The fifth section offers a brief overview of the volume’s empirical contributions, although references thereto can be found throughout the chapter. We conclude by issuing a call to scholars of comparative legal institutions to embark upon studies of these “other” crucial institutions of justice and by suggesting some directions for future research.

COMPARATIVE JUDICIAL POLITICS: THE SHAPE OF THE SCHOLARSHIP

Once of peripheral empirical and theoretical concern, “comparative judicial politics”—the comparative study of courts and their involvement in politics and policy making—has received increasing attention from a wide range of scholars since the turn of the twenty-first century. This is particularly true in the discipline of political science. Of course, a focus on institutions is nothing new for the discipline. Before the behavioralist turn in the 1950s and 1960s, law and formal institutions were staple objects of inquiry in political science analysis of the United States. Most studies, however, examined constitutional institutions and had a historical, descriptive, or abstract emphasis (Murphy and Tannenhaus 1972, 13; Whittington, Kelemen, and Caldeira 2008, 4–6). The institutional analysis that had taken off by the 1990s was quite different from that of the previous era: institutions were being studied in a more nuanced, more sophisticated, and more meaningful way. This new breed of scholarship is marked by an appreciation that institutions (in their guise as organizations) are populated by people with preferences; that how they function is shaped and constrained by a range of factors; and that they both reflect and affect politics, and both empower and constrain political actors (Hall and Taylor 1996). At least as important, the comparative study of institutions around the globe (March and Olsen 1984; Remmer 1997) formed a pillar of the institutionalist turn of the late twentieth century.

Of particular relevance to this volume, the study of judicial institutions in comparative perspective—an area of inquiry at the crossroads of the political science subfields of public law and comparative politics—was blossoming by the first decade of the twenty-first century. Engaging contexts from Tanzania (Widner 2001) to Mongolia, South Korea, and Taiwan (Ginsburg 2003), to Argentina (e.g., Helmke 2005), to Egypt (e.g., Moustafa 2007), to Russia (e.g., Trochev 2008), and to many places in between, a wave of scholarship on courts around the world began to gain momentum. As these citations suggest, the boom included an unprecedented focus on courts in parts of the non-Western world. A range of foundational questions about judicial empowerment, behavior, and independence; about how courts and the elected branches of government interact; and about the increasingly important role courts play (or at least seek to play) in politics and policy making in certain contexts have animated this literature. Legal mobilization and access to judicial institutions have also received some attention, as have the conditions under which judicial decisions are complied with—and courts thus come to have an impact.

For those interested in law and courts in the developing world, the fact that the comparative study of judicial institutions and judicial politics now forms an important aspect of the political science research agenda represents significant progress. Yet it is a central contention of this volume that if our ultimate goal is to understand why it has been, and continues to be, so difficult to entrench the rule of law in many parts of the world—why statutes and judge-made law bind only selectively, why rights are infrequently real (Epp 2010), and why justice is unevenly and irregularly served—then the comparative study of courts must reach farther. This claim is based on two linked observations about the extant literature.

First, most work explores peak judicial institutions or national “high courts”: supreme courts and constitutional courts occupy center stage.² Far less attention has been paid to the “everyday justice” carried out by lower courts (and state courts in federal systems), and to systems of specialized courts such as labor courts, administrative courts, juvenile justice systems, electoral courts, and indigenous or tribal courts. Moreover, the form, function, and operation of the myriad other institutions that make up what this volume refers to collectively as the “justice complex”—police, public prosecutors, public defenders, ombudsmen and so on—remain relatively unknown to most U.S. political scientists.³ Also generally overlooked in the literature are key administrative bodies such as judicial councils (operating at the national and subnational levels), and supranational and regional judicial institutions (e.g., the Inter-American Commission and Inter-American Court of Human Rights, the Court of Justice of the Andean Community, and the Caribbean Court of Justice).

These lacunae are important to fill. Average citizens almost invariably interact with nonapex courts and other institutions making up the justice complex far more frequently than they interact with high courts, and usually before they interact with high courts (if they ever interact with them). Citizens thus develop their understanding and expectations of their country’s legal system and rule of law based on their experiences with these other institutions. Further, without understanding subnational legal institutions, we obviously cannot compare them with each other (despite the methodological benefits of doing so). Without understanding other national-level institutions, we cannot engage in comparative cross-national analysis. And in an increasingly globalized world, it is critical to understand the workings and influence of regional institutions.

Second and consequently, while high courts hardly operate in a vacuum, we understand very little about institutional interactions within the justice complex. Interactions among courts are not clearly understood. For instance, we have not systematically examined how the decisions of lower courts aggregate to push and pull on high courts, or how the rulings of lower-level specialized courts (e.g., electoral courts) aggregate to influence higher-level specialized courts—or supreme or constitutional courts. Likewise, we have yet to grasp how high court rulings “trickle down” to lower courts (as they do in both common and civil law systems), or under what conditions lower courts are willing and able to follow the lead of the apex institution. Moreover, despite being quintessentially passive institutions—that is, in most contexts, courts can do very little until an issue, dispute, or conflict is brought to them—once activated, courts do not process cases in isolation, yet we know surprisingly little about the role the other institutions making up the justice complex play in shaping how courts carry out their assigned functions, and vice versa.⁴ In order for their functions to be properly understood, all of the institutions that compose the justice sector must be studied as what they are: parts of a larger system.

In encouraging the study of judicial politics to move “beyond high courts,” our objective is to press the field away from an exclusive focus on high courts (not toward an exclusive focus on non–high courts), and simultaneously to encourage more attention to the ways in which justice institutions operate interdependently (rather than in isolation). Continuing to study high courts is critical in order to fully address the interactive and multilevel nature of the justice complex. Our point is simply that we need to also analyze other institutions of justice at all levels of domestic government, as well as international justice institutions, and to study the justice complex as a system of institutions.

There are of course important exceptions to the generalizations just offered about gaps in our knowledge. To mention just a few examples from Latin America, the region on which this volume focuses, Chavez (2003, 2004), Beer (2006), and Ingram (2012, 2013a, 2013b, 2016) have studied lower courts in the region; Eisenstadt (2002, 2004) has examined Mexico’s electoral court (and other electoral institutions); and Pasqualucci (2003) and Huneeus (2010) have explored the Inter-American Court of Human Rights. Hammergren (2002), Finkel (2008), and Garoupa and Ginsburg (2009) have studied judicial councils in the region, and Ingram (2012, 2016) and Rios-Figueroa and Pózas-Loyo (2011) have done so in Mexico and Brazil. Sadek and Cavalcanti (2003) and McAllister (2008) have examined the powerful public prosecutor’s office in Brazil, and Brinks (2007), Ungar (2010), and Sabet (2012) have studied the police in the Southern Cone and Mexico. In addition, Uggla (2004) and Moreno (2016) have described how ombuds offices function across the region.

Yet overall, the scholarly attention paid to institutions of justice beyond high courts and to institutional interactions within national justice complexes (and between those complexes and regional or international justices systems) pales in comparison to the attention focused solely on high courts—at least with regard to the Global South. While a quarter of a century ago famed judicial scholar Martin Shapiro implored judicial scholars to study “any law but constitutional law, any court but the Supreme Court, and any country but the United States” (1989), we have taken meaningful steps toward heeding only part of his advice.

These analytic choices have significant empirical, conceptual, and theoretical consequences. First, by leaving the overwhelming majority of the justice complex underexamined, emerging scholarship on comparative legal institutions offers an incomplete and potentially misleading empirical portrait of the politics of justice in the Global South. It seems clear that we cannot simply assume that other justice sector institutions mirror the empowerment, authority, or independence of high courts: characterizations of judicial politics in a polity formed on the basis of what is known about its high court are bound to be inaccurate. Our lack of a solid empirical understanding of the form and function of those other institutions renders us underprepared to carefully conceptualize key outcomes of interest—institutional accessibility, accountability, authority, autonomy, capacity, effectiveness, efficiency—or performance, power, or quality more generally. Moreover, justice sector institutions rarely (if ever) act in isolation, and if we do not understand the justice complex as a system or network, we remain unenlightened about how the function, performance, and effects of some institutions of justice condition the function, performance, and effects of others.

Further, these descriptive and conceptual lacunae prevent us from theorizing about critical institutional processes and qualities—beginning to explain why justice sector institutions “score” as they do on the important attributes just mentioned and why they perform and function (or misfunction) as they do. More broadly, we remain largely ignorant of whether explanations developed to account for such attributes of high courts can account for those same qualities in other justice institutions. Given the important differences in design and objectives among justice sector institutions, there are good reasons to predict that they may not. We have a profound interest, as scholars and human beings, in understanding why police in some contexts engage in extrajudicial killings while others do not; why some prosecutors can act independently while others cannot; why public defenders are effective in some polities and not in others.

THE EMPIRICAL TERRAIN: FORMAL JUSTICE SECTOR INSTITUTIONS IN LATIN AMERICA

Before discussing the multiple benefits of studying a broad range of institutions of justice, we clarify and justify the empirical parameters of the studies included here. First, we explain why the volume focuses on Latin America. Second, we discuss what is gained—and lost—by focusing our comparative study on formal institutions of justice, rather than (also) examining law and legal institutions “in action.” Finally, we outline why we chose to study the particular institutions under analysis here.

Why Latin America?

There are strong empirical and theoretical reasons for focusing on the multilevel justice complex in Latin America—and, in particular, examining its largest federal countries. First, examining countries from just one world region affords our cross-national analyses greater inferential leverage, allowing them to hold somewhat constant a range of factors, such as colonial legacy, type of legal system, and certain cultural factors, that could potentially drive cross-national variation.⁵ Focusing on a single region also lends the volume coherence, allowing the authors and the chapters to speak to each other more easily. Furthermore, Argentina, Brazil, and Mexico, which receive sustained attention in the book, are Latin America’s largest democracies and markets, accounting for more than two thirds of the region’s population and economic output (ECLAC 2010). Their regional—and increasingly global—prominence recommends them as targets of inquiry. In addition, these countries exhibit the kinds of institutional variation that we seek to understand, at the subnational level (as Smulovitz and Ingram examine, for instance), and cross-nationally (as Aguiar-Aguilar, Carvalho and Leitão, and Kapiszewski et al. explore). Further, there are likely to be more institutional interactions of the type that interest us, and these interactions are likely to be more evident and relevan...