I have to begin by noting that I was asked to review these three books together. They all compare legal institutions across countries, and the authors share a belief that legal institutions structure and decisively shape national politics and polities. The three books are excellent in their different ways. The similarity ends there; thus I will seek insight in their differences.

Shifting Legal Visions is a puzzle-driven book focused on actor agency. Ezequiel Gonzáles-Ocantos wants to understand how national judicial practices, with respect to criminally prosecuting human rights violations, changed in response to international law and domestic legal-political strategies. The book examines two Latin American countries where judges reversed positivist legal traditions, embracing interpretations supported by international human rights law (Argentina and Peru), and one where legal practice did not significantly change (Mexico). The goal is to understand the permissive and necessary conditions for judicial change, and the micro processes—the interactions between judges, advocates, and governments—that advance or thwart change in legal practices, and thereby the willingness of national judges to confront human rights violators.

Constitutional Courts as Mediators also examines the role of courts in Latin American post-conflict settings, and it includes two of the same country cases. But the book is a theory-testing enterprise, and the theory is mostly structural. Julio Ríos Figueroa expects that certain formal features of national judiciaries—the structural independence of judges, rules of access to initiate legal review, and the formal judicial review powers—will determine whether or not judges become mediators whose rulings help to inform the choices of members of the military. The country cases (Colombia, Peru, and Mexico) were selected because of variation in the structural features associated with Ríos Figueroa’s theory. The conclusion briefly discusses Israel, Turkey, and Pakistan as a plausibility probe of the generalizability of the theory.

Making We the People engages philosophical debates about how peoples are constituted, and it employs macro-historical analysis to identify features of post-World War II Japan and South Korea’s constitutions and policies that, according to Chaihark Hahm and Sung Ho Kim, shaped national political identities. Courts are not central to the analysis. While the authors see U.S. actions and national policy decisions as important factors shaping national understanding of themselves, probably for reasons and in ways that were not fully intended, this is not a story about actor agency and the authors are not really interested in causality.

As a group, we can see the intellectual vibrancy that is now comparative law with a political science bent. We are long past the days where comparative law meant legal scholars describing differences in laws and judicial decisions across countries with respect to issue X. Together the books demonstrate how insight can come from a range of social-science methods, and especially from cross-country comparisons.

In Shifting Legal Visions, Gonzáles-Ocantos sets for himself a very clear task. Since national legislatures had not passed laws recognizing individual criminal responsibility for human rights violations, judges would need to look to international human rights law to find an authorization to proceed. More specifically, prosecutions required judges to shift from positivist notions that legal scholars and judges had in the past defended when they argued that even if the (domestic) law generates notorious injustices, courts did not have the power to correct the failings of the law (p. 52). Gonzáles-Ocantos wants to understand how this shift away from positivism came about, and why there is national variation in the willingness of judges to step outside of (domestic) formal law to hold perpetrators of human rights violations criminally liable.

Each step of the framing is carefully explained, including why Gonzáles-Ocantos is focused on criminal prosecution rather than human rights cases (pp. 15–19), the challenge to legal positivism posed by international human rights and criminal law (pp. 43–49), and how judges are persuaded to change their approach (pp. 54–63). Change requires “pedagogical interventions” (pp. 57–63) targeting committed and indifferent judges. The interventions must be systematic across jurisdictions and legal issue areas, and they must be law-based, meaning that the legal persuasion draws on the authority of law—in this case international law—to provide a legal basis to rule in favor of the plaintiff and to instill a “sense of duty” and an international legal obligation to “punish serious crimes” (p. 62). This strategy can work for empathetic and indifferent judges. For obstructionist judges, the only solution is to remove them from office.

The success of these strategies is contingent on the political environment, yet the strategy can be deployed and be moderately effective in various contexts. No doubt democratic transitions provided a moment of openness to new approaches, and an opportunity to purge “cronies” from the past regime. The longer pro-democracy forces stay in power, the more opportunities there are to use natural points of judicial transition (e.g., the end of judicial terms) to transform the judiciary. For the transition to work, it is critical that pro-democracy and pro-prosecution advocates work to replace the unpersuadable judges. In Latin America, one is always braced for a backlash, since political reversals are par for the course. Thus an additional element of contingency is how enduring the political support for prosecution will be.

Gonzáles-Ocantos reconstructs the strategies that human rights advocates used to transform legal practices, and he provides an impressive over-time synthesis of hundreds of cases. Using careful process tracing, the empirical chapters chart the interaction between political support, pedagogical interventions, replacement strategies, and prosecutions over time. He identifies for each country the permissive and necessary conditions that facilitated change, and the story is deeply political. This is not an argument about judges being socialized, so much as it is an analysis of how national politics constantly constructs barriers that human rights advocates must then overcome. There is only so much that persuasion can do; both sides of the political game understand how appointment and replacement politics are key to a successful strategy. In both Argentina and Peru, albeit at very different points in the story, amnesty laws were created. These laws upped the stakes since now-formal local law precluded prosecutions while the Inter-American Court of Human Rights jurisprudence disallowed amnesty for human rights abuses. In Argentina and Peru, the persuasion and replacement efforts eventually generated tipping points when prosecutions became possible and numerous cases then proceeded forward.

Readers learn a great deal about the lead-up and the unfolding of human rights prosecutions in Argentina and Peru. Since the Mexico chapter is really about dogs that do not bark, there is much less to report. But the contrasting case is very helpful in that we can see how agency matters (e.g., human rights advocates must work hard to enact change) and how national politics are either supportive, permissive, or blocking of change. In addition, the conclusion discusses two cases where barriers were not overcome—Brazil and Uruguay. These comparisons help us to better see the formal and argumentative instruments of both change and obstruction.

There is a deep respect for the law, legal reasoning, and for the task facing judges throughout Shifting Legal Visions. Judges are not simply politicians in robes. “Subscribing to a particular legal orthodoxy and the techniques of interpretation and investigation sanctioned by it can turn members of the judicial community into actors willing and able to perpetuate or defy impunity, regardless of the power and preferences of politicians and the military. Because of the crucial role played by legal preferences, the political environment does not fully determine the outcome of human rights prosecutions” (p. 272).

Gonzáles-Ocantos’ belief in the power of a legal argument coupled with the importance of judicial preferences contrasts with Constitutional Courts as Mediators. Legal argumentation is mostly missing in Ríos Figueroa’s analysis, and judicial preferences are at best secondary factors explaining when and how courts become mediators in conflicts with the military. This is not to say that Ríos Figueroa sees judges as politicians in robes, but rather that his method of analysis does not allow him to probe how judicial ideas and preferences may be an important part of his story.

Constitutional Courts as Mediators is a normal science approach to understanding when constitutional courts become politically salient actors in helping to resolve conflicts with members of the military. Whereas Shifting Legal Visions focuses on judges at various levels of the legal process (since prosecutions must, of course, begin with prosecutors raising cases in first-instance courts), Ríos Figueroa narrows the lens to a focus only on Constitutional Courts. This is a reasonable choice, and the blinders are necessary for his method—it would be too much to look at all branches of the judiciary—but it is limiting in terms of understanding how courts mediate armed conflicts.

Ríos Figueroa draws primarily from the rationalist literature to generate his theory of how constitutional courts can serve as mediators. I find this narrowing of the literature limiting, and itself reflective of the normal science ontology of the study. Martin Shapiro (not a rationalist scholar) long ago argued that courts are, at their core, the state’s third-party mediators of social conflicts (see his Courts: A Comparative Political Analysis, 1981). Shapiro’s theory was not about civil-military relationships, and to be fair, Ríos Figueroa does cite this work (and Stone Sweet’s work on constitutional courts). But Ríos Figueroa does not really confront the challenge Shapiro’s perspective presents. For Shapiro, courts are mediators pretty much all of the time—if the question is “when” do courts mediate, for Shapiro there would be no real variation to explain. Shapiro would not really believe in Ríos Figueroa’s “spectrum of conflict resolution” that sees negotiation and mediation as self-directed, whereas expert advice, arbitration, and litigation are what third-party adjudicators do (p. 21). Indeed the entire literature on bargaining in the shadow of the law is about how courts, by their involvement or absence, are implicitly part of the entire spectrum of conflict resolution.

Unlike Shapiro, Ríos Figueroa seems to genuinely believe that negotiation and mediation operate in a realm separate from legal review, that third parties are genuinely and meaningfully seen as impartial, that the parties to the dispute are the primary audience, and that formal rules determine how legal processes actually work and how judges play their delegated roles. These presumptions seem heroic for a book about constitutional courts operating in fairly fragile rule-of-law environments, especially if Shifting Legal Visions is correct about the role of human rights advocates in persuading and replacing judges. The peripheral relevance of larger national politics also seems implausible, especially for courts that are intervening in cases involving the military, where the alleged violations occurred on home territory and the victims were citizens who leave behind traumatized parents, siblings, spouses, children and extended families.

The reader feels the breadth versus depth trade-off in Constitutional Courts as Mediators. Whereas Shifting Legal Visions could zero in on changing legal practices in a pretty specific time period, to test whether the independent variables (judicial independence, wide access, and the formal powers of judicial review) affect the dependent variable (whether constitutional courts serve as ‘delegates, arbitrators or mediators’) Ríos Figueroa examines the structure of national legal systems and legal decision-making regarding the military over vast expanses of time (55 years for Colombia, 34 years for Peru, and 96 years for Mexico). Ríos Figueroa also investigates a set of alternative explanations that require him to code the ideology of individuals who serve on the judicial bench across time. The only possible way to cover this terrain is to reduce individuals and cases to blunt codings. One learns from the empirical chapters whether the theory is supported, but a reader does not leave the chapter understanding how constitutional courts helped to mediate armed conflict in the three countries. Personally, I would have liked to learn more about how courts mediated post-conflict situations rather than whether the theory seems to work.

Constitutional Courts as Mediators is very careful as it elaborates the methodological choices, and the challenges and limitations these choices import. Ríos Figueroa openly confronts the problem of relying on “de jure indicators” (p. 31); he clearly explicates what “informative jurisprudence” looks like, including how this jurisprudence “informs” (pp. 32–34); and he openly confronts endogeneity challenges. However, these problems can never be fully dealt with if you believe that judges have agency, or if you think that law and legal practice is endogenous to the political preferences that shape the law, the selection of judges, and judicial behavior, or if you believe that the political salience of victim-citizens and divided societies shapes legal practice. Indeed the political contingency central to Shifting Legal Visions is basically missing here. At some point, legal structures in the three countries changed, leading to the creation of independent constitutional courts. That these changes were part of larger political movements seems to matter less than the fact that formal rules for courts adjudicating cases changed.

Because Ríos Figueroa is testing a structural theory, structure rather than preferences must do the work. Whereas Shifting Legal Visions has an entire chapter that plumbs the factors shaping judicial preferences, Ríos Figueroa devotes three pages to this topic (pp. 34–37). He first invokes James Gibson’s dictum that judicial decisions are “a function of what [judges] prefer to do, tempered by what they think they ought to do, but constrained by what they perceived is feasible to do” (quoted on p. 35). Ríos Figueroa then reduces this dictum to a focus on what is “feasible,” and thus what makes it possible for judges to give in to personal preferences or logics of appropriateness. He then considers what attitudinal models have to say about judicial ideology shaping appointment decisions and judicial behavior. Directly addressing the issue of whether ideas shape how judges think they should do their job or how judges actually do their job, Ríos Figueroa “acknowledge[s] the presence and importance of these ideas but [he] thinks they do not determine [his] outcome of interest, that is, the constitutional jurisprudence on military autonomy” (p. 36). This dismissal is unconvincing, in part because Ríos Figueroa invokes Venezuela to show how judicial ideas can be quashed should a dictator decide to replace independent judges with political loyalists. But just because dictators can take over a judiciary, this does not mean that judicial ideas are not central, especially in cases where dictators have not, in fact, taken over the judiciary. However, Ríos Figueroa is right that his legal model provides another explanation of the topic that interests him.

Ríos Figueroa has made his choices, and he defends them as well as can be done. It is clear that Ríos Figueroa has mastered a truly impressive amount of material related to his country case studies, even if he chooses to reduce the analysis to explaining the coded versions of the information that he had to analyze for the study. To his credit, this is the only book of the three to seriously consider alternative explanations that might be at play. Chapter 6, which compares the three country cases side-by-side across the multiple dimensions of the analysis, is a wonderful addition that helps the reader to see how the three stories vary across time and with respect to each other. Its presence highlights the absence of a summative comparative chapter in the other two books. Moreover, since his goal is theory building, rather than explanation, Ríos Figueroa’s effort to generalize beyond his three country cases is much appreciated. Constitutional Courts as Mediators is an impressive book executed with great self-reflection, erudition, and skill.

Given the vastly different approaches to similar, although not identical, topics, Shifting Legal Visions and Constitutional Courts as Mediators together provide contrasting perspectives of how and why judges can become important political actors in post-conflict settings. In this respect, the two books will teach wonderfully together. Doctoral students who want to think about judicial behavior can benefit from each book’s carefully crafted theory chapters. Assigning both books’ theory and Peruvian chapters (and perhaps also the Mexican chapters) would be a wonderful focus for a graduate seminar since the trade-off between the normal science theory-testing and puzzle-driven historical-institutional approaches are so clear.

Making We the People is also an excellent book. It is just an entirely different approach to understanding what is an entirely different situation. Hahm and Kim are interested in how constitutions and policies affect national understandings of who and what “the people” are. Post-War Japan and South Korea have not experienced the challenges Latin American judges and human rights advocates have faced, and it is therefore not surprising that the role of courts is not as central to Hahm and Kim’s analysis of key issues like war and peace, and the basic rights of citizens. Still, it is surprising that the role of adjudication is so tangential to the story. I am not suggesting that the authors missed something—I really would not know if they did. Rather the absence of courts in their analysis is another comparative data point.

Making We the People teaches the reader a great deal about post-World War II Japan and South Korea. Readers learn how U.S. occupation and hegemony greatly influenced the constitutional foundings of these two countries. We learn about the origins of key constitutional provisions, and why certain constitutional provisions then remained unsettled despite the United States’ efforts to impose a constitutional settlement. The problem, according to the authors, is that these bargains did not fully confront each country’s imperial and wartime pasts. Also the United States’ continued and often problematic involvement in the two countries ensured that the constitutional settlement remained unsettled.

The crux of the analysis is as follows: The constitutions were imposed, although of course there was some choice, too. Then, as politicians dealt with the demands that then arose—U.S. demands to build and maintain a joint military presence, state-led efforts to rebuild the national economy, and challenges that arose because not every foreign national returned home after the war–each polity made decisions that defined who “we the people” would be. In other words, Japan’s and South Korea’s constitutions, despite their liberal rhetoric and even though they were “constitutions,” did not actually constitute a people. The authors show how working through the legacies of war and a heightened U.S. involvement in the two countries, alongside key decisions inscribed in the constitutions and in policies, constituted the people of Japan and South Korea.

I have focused on the argument, but the book is mostly about the specific policies and priorities that through the medium of law influence Japanese and South Korean conceptions of themselves. The authors are not particularly concerned about defending their methodology or the issues they choose to explore, yet the reader can tell that they are in truly expert hands as Hahn and Kim untangle the international and domestic influences at play, and as they trace how key national constitutional provisions and certain policies shape politics and political identities. Precisely because laws, rather than courts, are given pride of place, we are able to see how law on its own shapes politics. Especially fascinating in this respect are the discussions of how the lines between individuals, citizens, and foreigners were shaped by household registration systems and electoral voting rights, which themselves reflected local conservative values and vestiges of past imperial systems.

We the People was believable to me because I am so used to Americans using the U.S. Constitution, and contestation about our Constitution, as a lens to understand how Americans think about themselves. The absence of this type of analysis in the other two books made me wonder if the sustained American focus (or perhaps fetish?) on the U.S. Constitution, its history and the political bargain it codified, is only possible because—like post-war Japan and South Korea—the United States has escaped the scourge of military dictatorships. The larger issue is that history seems so important for the Japanese and South Korean story, and Americans also view constitutional law and politics through the lens of history. Yet the lack of historical treatment in the other two books was not, for me, a problem, perhaps because the questions animating the studies were so clearly identified, and because the salient issues that were the focus of the books were recent, new, and very pressing.

Even though I was quite critical of the approach taken in Constitutional Courts as Mediators, I truly believe that all three books are excellent in that the questions are important and each book does a very good job at fulfilling the goals the authors set for themselves. They clearly and cogently identify their objects of study, they lucidly review and build on the relevant literatures, and they deeply explore the local contexts of their country case studies. They are also all three very well written and thus very readable.

Yet I definitely have a preference for studies that go beyond formal law and that delve into the interaction between law, legal processes, and politics. This is why:

• • Law is an extremely mimetic entity. I often joke that law is a discipline where plagiarism is encouraged and rampant, by which I mean that legislators and legal scholars regularly look around the world and borrow the texts of laws, institutions, policies, and constitutions. One legal scholar summarized his comparison of formal criminal laws in various countries this way: It is like matching the DNA of a human and a chimpanzee. The criminal codes may share 98.8% of their DNA, but clearly the differences that exist are significant. Legal scholars also understand that these differences are not necessarily about the words on paper, but rather about how the codes are brought to life through legal practice.

• • Because laws are texts, they can be interpreted in different ways. Lawyers earn their keep by being creative interpreters who are also familiar with the preferences of key administrators and judges. Knowing their audience (e.g., judges and legal decision-makers) is essential, because lawyers understand that different human beings will interpret the same text differently. Legal scholars are often amazed that political scientists put so much stock in formal law. Yet the rationalist/quantitative mode of counting and comparing leads many political scientists to become legal formalists.

• • The legal process is dynamic, especially when legal outcomes are public and salient. Especially for high salience issues, it is hard to see judges as mere reflections of the party that appointed them, or as unaffected by legal argumentation, particularities of the case, or the political climate in which they live and operate. But it may only be political scientists who think that what you’re judging—legal arguments, emotions, and the effect of different legal outcomes on society—is irrelevant to the act of judging.

These features of law and politics mean that although all three books are focused on roughly similar periods of time, the role of courts in Latin America is simply not comparable to what was occurring in Japan and South Korea. I began this review wondering how I could possibly compare three such different books; however, these three books together remind us why legal institutions are a key way that societies work through their pasts, and constitute their futures. They also remind us that a context of a long peace is fundamentally different from a context where mass atrocities continue to drive and divide communities and polities. This should humble political scientists in that we really should not expect general theories of judicial behavior or structural features of the law to mean the same thing across political contexts. Taken together, these three books amply demonstrate that widely different historical and political circumstances in fact preclude the possibility of devising such general theories.