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. Instances that are closer to the population in general and to the most disadvantaged groups in particular.
There is no doubt that the concern for the operation of the apex courts of justice in a comparative perspective is a field of study that received much attention in the last 20 years. Today we have ample knowledge about the influence of political and social dynamics in the functioning of these institutions, as well as the consequences of their role in young democracies. However, knowledge about other organs of the justice system is limited, although their function is key for the rule of law in democratic regimes. This book is a first step to close this gap.
The editors share several goals in the introduction to the volume. I would like to emphasize the three that seem most relevant to me. Continuing with the idea of showing that there are complex life forms beyond high courts, the first goal is to draw attention to the diversity of this life, what the authors call the justice complex. They focus on the formal design of these institutions. They show the dynamics of their creation, operation, and transformation but also reflect, although less clearly, on the interactions between these organs and their consequences for the rule of law.
The second goal is to adapt the concepts that have been developed to describe other life forms to new ones. The authors make a breakthrough in delimiting key concepts in the literature on law and courts in Latin America, such as independence, power, and strength, and adapting them to institutions other than high courts, thus advancing in measuring them. The third goal is to analyze whether theories constructed to explain the best-known life forms maintain their explanatory force in different environments. The authors evaluate how well-developed theories to approach problems of the highest courts change to explain the creation, transformation, and (to a lesser extent) results generated by these other institutions of the judicial complex. Probably one of the volume’s main common denominators is to demonstrate the operation of motives and incentives different from those strictly political or electoral, at least in some proportion.
The book consists of an introduction, eight chapters (two on the prosecutor’s organ, one on public defense, two on electoral tribunals, one on a Brazilian institution called writ of suspension, one on judiciary councils, and another on international courts), and a closing chapter about pending topics and questions for the comparative study of law and courts.
Azul Aguiar, in her chapter, “Reforms to the Prosecutor’s Office in Brazil, Chile, and Mexico: The Role of Justice Sector Interest Groups,” reviews the determinants of reforms of these organs and demonstrates the influence of the so-called justice sector interest groups in this process. Ernani Carbalho and Natália Leitão, in their chapter, “Operationalizing and Measuring Prosecutorial Independence: The Brazilian Case,” review the measures of judicial independence that adapt to the prosecutorial organ.
Catalina Smulovitz’s chapter, “Public Defense and Access to Justice in a Federal Context,” analyzes the characteristics of public defense regimes and the provision of public defenders in a federal country and tests the factors linked with a better provision of them. She finds that administrative considerations are more relevant than political ones.
Kapiszewski, John Seth Alexander, and Robert Nyenhuis analyze the characteristics of the institutional designs of high electoral courts in their chapter, “Judging Elections: Electoral Courts and Democracy in Latin America’s Federal Systems.” They call attention to this type of institution, in which legal and political dynamics are deeply intertwined, and the determinants of their institutional designs.
In the second chapter on electoral courts, “The Electoral Court and Party Politics in Brazil,” Sidiaa Maria Porto Lima also analyzes the institutional design of the Brazilian Supreme Electoral Tribunal, based on the indicators of independence from the political power and the supreme court of the country, as well as the motives of the judges’ behavior, highlighting their purposive behavior.
The chapter “Watching the Watchmen: The Role of the Brazilian Supreme Court’s Chief Justice in Checking Lower Court Activism,” by José Mario Wander-ley Gomes Neto, Ernani Carvalho, Danilo Pacheco Fernandes, and Louise Dantas de Andrade, focuses on an institution, the writ of suspension, through which the executive power at its different levels can ask the chief justice to suspend a first instance decision while the appeal process is resolved. This analysis shows the relationship between the president of the highest court, the executive branch, and the lower courts and the importance of the chief justice’s political ideology, as well as the economic situation of the country since the 1988 Constitution.
Ingram, in his chapter, “Judicial Councils in Mexico: Design, Roles, and Origins at the National and Subnational Levels,” introduces us to the functioning of these institutions, which proliferated in the region during the 1990s. The chapter makes two contributions: it carries out a conceptual and measurement project about the strength of the judiciary councils, and it tests whether the theories that associate the levels of political competence with the power of the apex courts work for this type of institution.
In their chapter, “Transnational Protection of Human Rights in Latin America,” Mary Volcansek and Ingram examine transnational human rights institutions; specifically, the interamerican system. The quantitative analysis carried out in the chapter shows that the judgments of the Inter-American Court of Human Rights have positive effects on the success of these institutions, although they are not immediate.
Finally, Martin Shapiro, in his balance of the book, “Comparative Law and Courts Studies,” reviews the topics addressed and poses new questions about them. He also points out issues that were pending and that are considered fundamental to draw a more comprehensive picture of the “justice complex”: the investigative function of the police, the lower courts and the scope and limits of internal independence, and the role of administrative agencies.
The volume, rooted in the literature on law and courts in Latin America developed primarily by the U.S. academy, challenges that literature. It is an ambitious enterprise. This ambition is both the volume’s main strength and the cause of some of its weaknesses. For example, as a strategy to deal with the diversity of topics, the authors frame the dialogue within the field of judicial politics and neglect the consideration of other bodies of literature that have, for example, developed work on the importance of prosecutor’s organs seeking justice to overcome impunity for human rights violations or that have focused on the analysis of the domestic influence of international courts. Although, as a first step, this strategy of delimiting the discussion is more than legitimate, it might be important in subsequent stages to open the spectrum to hybrid literature that, in dialogue with this analytical framework, has made important contributions in order to advance the construction of integrative theories.
Probably another of the weaknesses arising from the ambition of the volume is the incorporation in the equation of the subnational political level, which is of the greatest importance but it is not fully explored. Also along this line, the goal of highlighting the relations between institutions of the justice complex is blurred in the face of the effort to analyze specific institutions. These considerations, far from demeriting the project, are actually opportunities to expand the research in the field.
It is clear that although the book was published in 2019, it is a longstanding project. The information in some chapters, although original, is not up to date, but that does not affect the central argument of each of the contributions. The combination of comparative chapters and case studies is interesting, as is the use of mixed methods to address the different questions.
This book, whose editors and many of whose authors are prominent sources on the study of law and courts in Latin America, seeks to broaden the horizon of this field of research and is an effort of integration rather than fragmentation of existing knowledge. This effort alone deserves special recognition.
