Routledge Handbook of Law and Society in Latin America

2019

Social Science Research Network, 2010

This article compares and contrasts the concept of the rule of law as it developed in common law and civilian legal systems, including discussion of the underlying cultural differences. It also examines how and why Latin American legal systems developed problems, and the failure of the three waves of reform efforts that attempted to ameliorate those problems. By comparing unsuccessful independent judiciary reform efforts in Venezuela to successful efforts in Chile, it posits that significant change can only come about when it is brought by consensus, when changes are implemented on a whole system in a careful, thoughtful manner, and when the change being brought includes a rule of law (as opposed to rule through law) component: in other words, it proves checks and balances to keep governmental power and politicization in check. The advantage in common law countries is based on procedural, structural, political, and cultural characteristics, rather than on any substantive differences in the law. Consequently, developing countries are best served by developing their own solutions to problems, such as an inefficient judicial system, rather than relying primarily on advice (and funding) from outside entities.

Oxford Handbook of Latin American Social Movements, 2023

This study presents an account of the main processes and events in the recent history of the interaction between social movements and the judicial system in Latin America. It first discusses analytical frameworks for the study of social movements and courts in the region. Secondly, it analyses the role of social movements in the creation of new legal opportunities, through their influence in constitutional conventions and judicial reform. Third, it points out some of the main developments in the interaction of movements with the court system, including progressive judicialization as well as counter-legal mobilization. Finally, it addresses multi-level processes of legal mobilization, by pointing out the importance of international litigation and subnational legal mobilization and the impact of federalism

Latin American Politics and Society, 2020

With this edited volume, Matthew Ingram and Diana Kapiszewski show not only that there is life beyond high courts in Latin America but that this life, which has been often neglected, has undeniable consequences for the validity of the rule of law and democratic strengthening. The volume is challenging. It opens new lines of research and invites us to think of the justice system as a complex ensemble of institutions of different types that can be studied separately or in their interaction—the justice complex. The editors make an effort, which is more than welcome, to systematize the investigation that deals with the dynamics of this complex. This is a fundamental book for those of us who study law and courts in Latin America but also beyond this region. It introduces us to political, legal, and institutional dynamics that characterize key institutions of the justice system, such as prosecutor’s organ, public defenders, and judicial councils, at both federal and subnational levels. In...

2011

This paper deals with two important ideas: rule of law and social justice. The question is whether these are values for lawyers and the legal system. Both concepts have a long history given that they are related to the idea of justice and a philosophical tradition going back to ancient Greece. However, my approach is to treat these ideas in terms of their present meaning and to avoid the philosophical depths by examining them from a social sciences perspective. Given the subject, however, some references to great philosophers are nevertheless inevitable. The preliminary issue I have to deal with is whether lawyers have values at all. The profession is the victim of cruel jokes that present lawyers as soulless and greedy people. According to one of these jokes, lawyers differ from prostitutes because prostitutes sometimes do it for love. In this regard, Marc Galanter has analyzed occupational or professional jokes as a way of counteracting the perceived importance of a profession in society. This is the reason his book is entitled Lowering the Bar (Galanter 2005, 9-15). In the early nineteenth century the most frequent victims of jokes were priests, whose profession was of great importance at that time. If jokes seek to cut down the powerful by revealing common deviant behavior in a profession, they also delineate the normative self-image of the profession. Jokes are like excuses. The person who offers an excuse is confessing the infraction of a norm but at the same time is reaffirming the norm (Austin 1979, 175-204). Jokes have a similar social function: they refer to a deviation from-and at the same time reaffirm-the norm. * Law School Dean at the Universidad Metropolitana in Caracas. Former Academic Director, International Institute for the Sociology of Law (Onati, Spain). I thank Prof. Mariana Hernández Crespo and the students of the University of St. Thomas School of Law for the invitation to deliver this paper in Minneapolis in March, 2008. I thank S. Lemke for her patience correcting my English and editing suggestions. I thank also the editors of the University of St. Thomas Law Journal for their helpful comments. [At the author's request, all references have been formatted according to The Chicago Manual of Style as a social science work.

Case Western Reserve Journal of International Law, 2006

This term is increasingly used to denote the shift from purely judicial to related types of legal and institutional reform. What is included in the justice sector remains a matter of debate, but as I will focus on the core organizations, I don't intend to pursue that issue here. 2 In the 1960s and 1970s various Latin American countries had received donor assistance under the Law and Development movement. See, e.g., JAMES A. GARDNER, LEGAL IMPERIALISM: AMERICAN LAWYERS AND FOREIGN AID IN LATIN AMERICA 53 (1980). While beginning as an attempt to update methods for teaching law, the program eventually incorporated many of the themes (and individuals) of the post-1980 experience. Throughout their independent history, the region's nations have undergone, often simultaneously or sequentially, various waves of updating codes. Since the 1960s there had been a regional group dedicated to promoting model codes. JAVIER LLOBET RODRIGUEZ, LA REFORMA PROCESAL PENAL (1993). 3 By special interest organizations, I mean entities like the international arms of the ABA, the AFL-CIO, and other domestic associations that took their programs afield. 0 4 There is now a large descriptive, analytic, and often critical literature covering these programs.

Journal of Legal Anthropology

As a researcher working within the field of collaborative or ‘engaged’ legal and political anthropology in Latin America, law does very much shape my research agenda and that of most of my colleagues. I would also contend that anthropology does impact law throughout the region, although to a much lesser extent. This is most evident in the legalisation, judicialisation and juridification of indigenous peoples’ collective rights to autonomy and territory in recent decades. Yet, the influence of anthropology on legal adjudication in the region is not only limited to issues pertaining to indigenous peoples: engaged applied ethnographic research is playing an increasingly important role in revealing to legal practitioners and courts the effects of human rights violations in specific contexts, and victims’ perceptions of the continuums of violence to which they are subjected.

2021

This book provides a nuanced picture of how diverse legal debates on the pursuit of economic development and modernization have played out in Latin America since independence. The opposing concepts of modernization theory and Dependency Theory can be seen to be playing out within the field of legal transformation, as some legal analysts define law as a closed, formal, rational system, and others see law as inseparable from economic, social and political change. Legal experiments have followed these trends, in some cases using legal instruments to guarantee classical, civil and political rights, and in others demanding radical transformation of existing legal structures. This book traces these debates across the key topics of: economic development and foreign investment; property; resource and power distribution in terms of gender and social policy. Drawing on a wide range of literature, the book adds complexity and color to our understanding of these themes in Latin America. This insightful exploration of comparative law within Latin America provides the tools needed to understand legal transformation in the region, and as such will be of interest to researchers within law, political sociology, development and Latin American studies.

What explains the success of criminal prosecutions against former Latin American officials accused of human rights violations? Why did some judiciaries evolve from unresponsive bureaucracies into protectors of victim rights? Using a theory of judicial action inspired by sociological institutionalism, this book argues that this was the result of deep transformations in the legal preferences of judges and prosecutors. Judicial actors discarded long-standing positivist legal criteria, historically protective of conservative interests, and embraced doctrines grounded in international human rights law, which made possible innovative readings of constitutions and criminal codes. Litigants were responsible for this shift in legal visions by activating informal mechanisms of ideational change and providing the skills necessary to deal with complex and unusual cases. Through an in-depth exploration of the interactions between judges, prosecutors and human rights lawyers in three countries, the book asks how changing ideas about the law and standards of adjudication condition the exercise of judicial power.

Revista Brasileira de Política Internacional, 2018

Through an analysis of the international legal thought of Alejandro Alvarez, Ruy Barbosa, Isidro Fabela and Carlos Saavedra Lamas, this paper shows that Latin America played a vital and complex role in the reconfiguration of a new global legal order in the early twentieth century and the consolidation of the modern discipline of international law, as well as a specific legal field in Latin America. It argues that the region was a pioneer in the promotion of distinctive continental and regional approaches to international law and world peace before and after the creation of the League of Nations.