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Democratization
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Judicialization of politics or politicization

of the judiciary? Recent trends in Latin
America
a
Pilar Domingo
a
Instituto de Estudios de Iberome´rica y Poriugal, Salamanca, Spain
Published online: 06 Sep 2010.

To cite this article: Pilar Domingo (2004) Judicialization of politics or politicization of the judiciary?
Recent trends in Latin America, Democratization, 11:1, 104-126, DOI: 10.1080/13510340412331294152

To link to this article: http://dx.doi.org/10.1080/13510340412331294152

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 111dem05.qxd 14/01/04 12:42 Page 104

Judicialization of Politics or Politicization

of the Judiciary? Recent Trends in
Latin America

PILAR DOMINGO

This article examines the judicialization of politics in Latin America with particular
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reference to Mexico and Argentina. It surveys several inter-connected processes with

regard to the democratic aspiration of building the rule of law and enhancing
citizenship. More than ever before regime legitimacy is linked to the credibility and
success of rule of law construction. At the same time, judicial institutions and legal
processes have acquired an unprecedented public and political centrality, as judges are
called upon to resolve political disputes and engage in the judicial and legal review of
governmental processes. Moreover civil society in varying degrees is increasingly
resorting to legal mechanisms as one means of reclaiming and advancing citizenship
rights. However, this process of judicialization of politics in young democracies does
not necessarily imply improvement in regard to the rule of law. And a failure to live
up to expectations concerning the rule of law is placing an additional burden on the
embattled democracies of the region.

Key words: judiciary; judicialization; rule of law; Latin America; Argentina; Mexico

Two decades into the restoration of democracy in most of Latin America, many
unresolved issues still hold the new regimes in a state of fragility and
vulnerability. In the early years of democratization, the prevailing political (and
academic) concerns revolved around how to secure a smooth transition from
authoritarian rule, and how to put in place a framework of competitive electoral
politics which would determine political outcomes and lead to the stabilization
of representative democracies. Questions about how to deal with human rights
abuses of the past varied in intensity, or at least with regard to how far political
elites were willing to address these issues without endangering the transition
process itself. At the same time, the pressing problems created by the
persistence of deep-rooted economic crises, and the growing pressures for the
region to conform to the orthodoxy of market rule, focused the attention of
policy makers on the onerous task of securing economic stability.

Pilar Domingo, Instituto de Estudios de Iberomérica y Portugal, Salamanca, Spain.

Democratization, Vol.11, No.1, February 2004, pp.104–126
PUBLISHED BY FRANK CASS, LONDON
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J UDICIALI ZATI ON OF POLI TI CS I N LAT I N A ME R I C A 105

As political and economic liberalization advanced – although by no
means in a linear fashion, nor without major upheavals, and in some cases
with regime breakdown – attention regarding the rules and normative
arrangements of the new regimes shifted increasingly towards concerns of
rule of law, accountability and rights issues. Significantly, these concerns
reflect a very mixed bag of issues and agendas that are prioritized in
different, and in some cases potentially conflictual ways. Corruption and
impunity feature strongly in most electoral campaigns. The development of
citizenship rooted in the consolidation of constitutionally established rights
is proving to be extremely problematic. Political rights have been more or
less secured, but civil rights for the majority are still far from being well
established; there are indeed real reversals with regard to social and
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economic rights. At the same time, concerns about public security and
growing crime rates signal a widespread perception of the state’s dramatic
incapacity to secure law and order. There is still little sense, then, that the
fragile democracies in much of the region have moved significantly towards
more credible regimes based on rule of law and the advancement of
democratic citizenship.
At the same time, promoting rule of law has become widely accepted
throughout the region as a necessary aspiration for the consolidation of
democracy, and is very much part of the remit of state reform and quest for
‘good governance’. It is within this context that the courts and judicial
systems have acquired an unprecedented centrality in political life in several
countries in the region. It is now common to hear that the polities of the
region are undergoing a process of judicialization of politics. But the other
side of the coin has been an increasing politicization of the judicial branch.
The article addresses issues raised by this apparent judicialization of
politics. The discussion will draw mostly on Mexico and Argentina. While
it makes no claim that these two countries are representative of the entire
region they do illustrate some of the recurrent political and institutional
dilemmas and tensions that have emerged through the re-positioning of
judicial institutions, in the context of democratization, and the parallel
development of a rule of law and rights-based discourse of regime
legitimation. First, judicial reform processes have become a common
feature of wider state reform, in recent years. Second, typically, courts have
come into the public limelight for a range of reasons, notably with regard to
corruption scandals, but also concerning judicial review decisions, and
human rights issues. Third, throughout the region, issues of rule of law,
legal accountability and law and order are high on the political and more
narrowly electoral agendas. Finally, concerns about rights and access to
justice are becoming more widespread among civil society.
However, it is pertinent to stress the differences that separate Latin
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106 D E M O C R AT I Z AT I O N

American countries in terms of how these issues are developing. First,

histories of state formation are extremely varied throughout the region, so
that we see very different levels of state presence (authoritative or not), state
embeddedness and outreach of public institutions, and of state capacity.
Second, the recent experiences of regime transition from authoritarian rule
took place within varying configurations of power relations and institutional
processes. Thus, conjunctural developments of the transition moment may
have borne long-term consequences for the role of the judicial branch
system in the political system.1 Third, there is considerable variation in
terms of the degree of democratic consolidation – bearing in mind that this
is not an irreversible process, and that the benchmarks of ‘success’ are far
from clear. Fourth, the nature of civil society varies considerably across the
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region in terms of levels of associative organizational capacity. Finally, how

rule of law and justice-related issues are being prioritized in the public
debate and political discourse differs considerably from one country to
another.
The article will first present a general discussion of what constitutes
‘judicialization of politics’, and then focus on the changing nature of
judicial politics in Latin America. It examines the development of a rule of
law and rights-based discourse in political and social terms. The factors that
have combined to strengthen the political and social prominence of judicial
processes in Mexico and Argentina are reviewed along with the extent to
which this suggests that politics and state-society relations are indeed being
judicialized. It is important to point out that greater judicial activism does
not in any way signal better rule of law.

Judicialization of Politics, or Politicization of the Judiciary?

The interrelationship between judicial systems, law, and politics is dynamic
and constantly changing. The degree to which courts take part in policy or
law making, or the extent to which political and social disputes can be
resolved through legal recourse, varies greatly from country to country, and
also over time. Equally varied are the dominant attitudes towards invoking
the law and resorting to formal legal channels for dispute resolution, rights
protection and for challenging government policies.
The literature on law and politics tends to draw great distinction between
the civil law and common law traditions, although less so in recent works
which engage in comparative analyses of the political role of courts.2 In
theory, in common law countries judges have a greater role in law making
through more open judicial interpretation. In the civil law tradition, judicial
interpretation involves, in theory, applying the written letter of the law,
reflecting a stronger mistrust of the judges (dating back to the French
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Revolution). In reality, with the development and expansion of the modern
state there has been a gradual convergence between both systems.3 Equally,
it is important to stress the marked difference between countries within the
two traditions. Finally there is the distinction between polities with
established democratic institutions where what is measured is the extent to
which political disputes are being, can, or indeed should be judicialized, and
transitional societies where what is at stake is the state’s basic capacity to
deliver minimally on rule of law. In general, though, until recently the
political impact of the workings of the law and judicial institutions have
been understudied within the discipline of politics. An increasing academic
interest in the relationship between courts, law and politics reflects, in part,
a growing acknowledgement of what might be seen as a general trend
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towards the judicialization of politics.4 It is beyond the scope of this article

to review the evolution of the role of law and legal institutions in political
development. But it is worth stressing that the judicialization of politics is
not a new phenomenon and, moreover, is a feature of established
democracies as well as more transitional processes such as in Latin
America.
The role of the judiciary, in general terms is fundamentally about
adjudication and constitutional control. The judicial branch fulfils four basic
functions in constitutional democracies: dispute resolution; judicial review;
administration of criminal justice; rights protection. In the fulfilment of
these functions, the intersection between law and politics is a complex and
dynamic relationship, varying over different legal traditions and specific
state-building and constitutional histories and trajectories.5
At a regime level, the judicial process acts in support of the rule of law,
although how it does this may be specific to the individual polity.
Nonetheless, the literature points to a general judicialization of politics, by
which the legal dimension is becoming more dominant both in the political
discourse, in the political practice of modern democratic states, and in the
ways in which civil society mobilizes around demands and concerns that
can be articulated as rights-based issues to be addressed as matters of law.
In Latin America, this process is occurring in contexts in which state
mechanisms of rule of law provision are at best fragile, at worst, complicit
with practices of ‘unrule’ of law, and in some instances downright
illegality.6
There are three broad groups of factors which in general terms are at the
root of this process of judicialization of politics more generally:
governmental processes; societal factors: and international factors.
Obviously they impact upon national contexts in different ways. Take each
one in turn.
With respect to governmental processes, the judicialization of politics
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108 D E M O C R AT I Z AT I O N

responds in part to the problem of ‘democratic deficit’. It is the result of a

crisis of representation, credibility, and even legitimacy of democratic
institutions. First, there is a growing sense that democratic government is
increasingly too far removed from the public sentiment. As policy decisions
are on the whole not the fruit of broad public debate but instead are the
product of either closed-door technocratic policy making or reflect powerful
interest and lobby groups, the courts may provide the only forum where
policy decisions can be contested, on issues of constitutionality or as a
matter of public interest litigation. This signifies a displacement of the
political debate of the issues involved from the legislative and executive to
the judiciary. Second, and linked to this, politicians may indeed find it
convenient to refer the public discussion of complex or sensitive issues to
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the court room, either as a way of depoliticizing the issue or of removing

themselves from the risk of taking unpopular decisions. Third, political
disputes may be brought to the courts as the only way out of political
deadlock – a classic example now being the 2000 US presidential election.
The growing law-making role of courts also reflects the reality of the
increased complexity of government and the expansion of the modern state
in the twentieth century, as it intervenes in larger spheres of social and
economic activities. According to Cappelletti, urbanization, technological
advances and modernity have created, more complex and pressing issues of
externalities and potential conflict within society, and between state and
society.7 The state has expanded not only in terms of legislation, but also in
terms of administration. This has led to the expansion of the function of
judicial review – not only of legislative processes, but also of state
administration and bureaucracy. Two ‘judicial’ developments can result
from this. One is the gradual expansion of quasi-judicial agencies, such as
specialized boards or tribunals, ombudsmen, or arbitrating panels, which
check political branches and state bureaucracies. In the other, the judicial
branch becomes a major political player (sometimes this takes the form of
constitutional courts). Thus, we are not only witnessing a judicialization of
politics. What emerges is also an increasingly more complex, diversified
and fragmented judicial function.
The judicialization of politics may also reflect issues of regime, or at
least governmental legitimacy, where the political class is seen as being too
mired in unacceptable levels of corruption and graft. A dramatic example of
this is the operation of Mano Pulitti (Clean Hands) in Italy, leading to a
spectacular redefinition of the Italian political landscape as the justice
system stepped in to sort out the mess of corruption within the political
class.8 In Latin America, the whole question of corruption and impunity in
public office represents a major obstacle for democratic consolidation.
The affirmation of what is essentially a ‘self-restraining’ discourse of
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J UDICIALI ZATI ON OF POLI TI CS I N LAT I N A ME R I C A 109

rights by democratic polities has further subjected political processes to
legal and judicial scrutiny. Established democracies have experienced an
entrenchment and strengthening of human rights legal codes nationally and
internationally, which further circumscribes legislative and governmental
processes.9 But these tend to reflect long-term and cumulative processes of
evolution and consolidation of rights. In the experience of recent democratic
transitions, new civilian governments are confronted most immediately, and
dramatically, by the dilemma of whether or not to try human rights abuses
committed in the recent authoritarian past, which represents an early test of
their commitment to the democratic promise of rule of law and equality
before the law. In short order they are also expected to secure not only
political rights but also at least the basic civil rights. Thus, expectations are
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high and so is the likelihood of failure and consequent public

disenchantment with the young democratic states in this respect.
With regard to societal factors, the judicialization of politics follows
from changing attitudes towards the law and the use of the legal system.
Again, urbanization and modernization have largely driven the expansion in
litigation and recourse to the courts for dispute resolution. Even in societies
where the judicial systems have a poor public image, the growth in litigation
has been significant. In addition to resolving private disputes, the courts can
provide a formal channel for advancing rights and contesting government
policies and decisions. Thus in the face of the democratic deficit of
representative government, the law and invocation of the law through
judicial institutions can become an instrument of civil society
empowerment.10 Cappelletti draws attention to this use of courts as a
democratizing feature of judicial activism.11 Courts act as an ‘equalizing’
institution through which social grievances can be addressed which
otherwise do not have access to political channels of representation.
The societal factor is crucial. Epp’s comparative study of the ‘rights
revolution’ examines the critical role of legal mobilization from below for
the advancement of a rights–based political and legal culture.12 However, he
also stresses the importance of the interaction between societal processes
and the institutional and structural context within which they emerge.
Supportive judges and a responsive political environment can make a
difference in the endeavour to develop a rights-based culture, as will the
degree to which there are sufficient resources to sustain legal mobilization
from below over time (for instance through legal aid provision) and
sufficient access to justice.
Finally, international factors also affect the legal culture of societies,
albeit in more diffuse ways, and in the way that law and politics interact. At
a general level, the increasingly universally accepted language of human
rights impacts upon the democratic process of transitional regimes,
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110 D E M O C R AT I Z AT I O N

primarily at a discursive level initially. This can have more than a purely
tangential effect on political decisions about rights issues and on the legal
culture more generally. Linked to this is the emergence of international legal
frameworks and treaties about human rights, which although still in their
infancy are no longer purely tokenistic or irrelevant at the national level. On
the commercial side, also, trade agreements generate complex webs of
dispute resolution mechanisms which also promote judicial activism.
Moreover, globalization and the transnationalization of political, social
and economic relations both within states and between states is
transforming the ways in which social, political and economic actors relate
to the law and use legal mechanisms to advance certain interests, protect
certain rights or challenge policy decisions.13 Slaughter in particular
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presents the argument about the need to rethink the legal dimension of the
state both in terms of its relationship with non-state actors – at the national,
international and transnational level – and also in terms of the internal
dynamics of state structures as a result of a changing international
environment.14

Judicialization of Politics
In sum, a myriad of factors converge in complex ways towards what might
be termed a general process of judicialization of politics and society. It
would appear that this is an inevitable outgrowth of the expansion and
development of the modern state organized around and premised upon
democratic principles of rule of law and rights.
Thus, the judicialization of politics is understood as, first, the process by
which there is an increase in the impact of judicial decisions upon political
and social processes. Second, it refers to the process by which political
conflict is increasingly resolved at the level of the courts. Third, at a
discursive level, judicialization of politics reflects the degree to which
regime legitimacy is increasingly constructed upon the public perception of
the state’s capacity and credibility in terms of delivering on rule of law, and
rights protection. Finally, it refers also to the growing trend by different
political actors and groups within society to use law and legal mechanisms
to mobilize around specific policies, social and economic interests and
demands.15
The judicialization of politics suggests that several inter-acting
processes are taking place. Judges are becoming more involved in law
making. Also, they are willing to play the role of political and social
brokers. Political elites are allowing this to happen, and indeed may be
facilitating this through the passage of reforms that broaden the scope of
powers of the courts. Politicians see some advantage in passing on to the
courts the treatment of politically divisive issues (although this is not a risk-
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J UDICIALI ZATI ON OF POLI TI CS I N LAT I N A ME R I C A 111

free process). The expansion of litigation and the incursion of legal activity
in politics and state bureaucracy are a corollary of state and democratic
development in modern societies, which is unlikely to be reversed. Finally,
the judicialization of politics and state-society relations suggests that
significant shifts are taking place in the popular culture, regarding the merits
of legal mobilization.
The political role of judges raises important questions about democratic
representation and the political accountability of courts, reflecting long-
standing dilemmas in constitutional democracy concerning the judicial
function such as the balance between judicial guardianship of constitutional
principles and majoritarian rule, and the question of who watches the
watchmen. For political elites, delegating law-making to the judges involves
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relinquishing some control over policy outcomes. Any assessment of the

perils and merits of processes of judicialization of politics inevitably raises
questions about levels of judicial independence and judicial review powers.
These are problematic issues in established democracies, where there is in
fact very little consensus about the optimum balance in the relationship
between branches of power. In the absence of an established tradition of rule
of law, as in many younger democracies, there is the added perceived
danger of the judiciary being politicized.

Law and Politics in Democratizing Societies: The Judicialization of

Politics in Latin America
Whether we accept that modern polities inevitably undergo processes of
judicialization or not, it is the case that recent years have witnessed in Latin
America an unprecedented wave of political and public interest in legal
institutions. In part, one indication of this is the recent wave of judicial
reforms. But also, as judicial systems become more politically salient under
democratic rule, and adjudication is seen to affect policy and political
outcomes, the policy makers may seek as far as possible to control who sits
on the courts and who fills important positions in the justice system. The
flip side of a process of judicialization of politics is then a process of
politicization of the judiciary. As democratic rule opens up a system of rules
whereby the acts and decisions of policy makers and public officials may
become subjected to constitutional review and legal control, it becomes
highly tempting for the political class to seek to control the judicial
watchmen.
So several interacting processes are taking place concurrently in these
transitional polities, posing a number of specific challenges for young
democracies. Justice systems are emerging as relevant institutions which
can dramatically affect political outcomes and policy decisions. At a
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112 D E M O C R AT I Z AT I O N

societal level there is a visible effort to reclaim a rights-based discourse and

an appropriation of the law as a form of making citizenship effective, and of
advancing certain rights and demands. At a political level there is a need to
legitimize government, at least in terms of legality, constitutionality and
public accountability. At the same time, however, there is a deep and
widespread distrust of legal institutions which are themselves discredited,
and frequently form part of the web of impunity and corruption. Moreover,
albeit in different ways, the growing political presence of courts is emerging
in regimes in which the principles of rule of law and rights protection are
still very weakly embedded in the political culture of the ruling elites.
Instead what often prevails is a widespread public perception that those
institutions in charge of the tasks of rights protection, due process and
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constitutional guardianship are both highly deficient and complicit with

practices of wrongdoing in public office and uneven application of the law.

Democratization and Rule of Law in Transitional Societies

Making rule of law a plausible regime objective is critical to any process of
democratization. Rule of law strengthens state-society relations by placing
limits and constraints on the actions of government and state officials
through mechanisms of checks and balances; it also provides the basis for
the development of democratic citizenship through the enhancement and
protection of the range of rights that underpins the democratic promise. The
transitional polities of Latin America continue to face the rather formidable
challenge of building a credible regime premised on the principles of rule of
law. At the same time, more than ever before, we appear to be in a historical
conjuncture of state-development in which regime legitimacy is intimately
bound to the promise of rule of law.
As regime legitimacy is increasingly more dependent on the capacity of the
state to provide rule of law, and state–society relations are becoming more
judicialized, it is important to draw attention to certain features of the post-
authoritarian regimes in Latin America that will inevitably have a bearing on
this process of judicialization. First, in much of the region (again, bearing in
mind the enormous differences from country to country), authoritative state
presence throughout the national territory is still very patchy and uneven.16 In
some places the state is largely absent – an extreme example of which can be
found in sizeable areas of Colombia. This weak presence of the state
undermines the possibilities for a positive connection between state and
society, without which citizenship and a societal connection with public spaces
– including legal spaces – and public institutions are unlikely to be advanced.
The roots of weak state presence lie in the history of state formation in
Latin America, which is littered with examples of constitutional projects of
republican rule since independence premised on liberal principles that bore
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little relation to the reality of the structures of power and social order. To the
extent that rule of law was articulated as a desired aspiration of state-
building in the nineteenth century, it tended to go hand in hand with highly
exclusionary visions of modernity and citizenship. Rule of law was more
about securing property rights, and less about providing a legal framework
for the advancement of citizenship.17 Overall, elites in much of the region
have shown a weak attachment to principles of legal universality and due
process. As the state expanded in the twentieth century, in various countries
in conjunction with the nation-building efforts of populist or movimentista
phenomena that signaled transformative processes of social and economic
inclusion, and a sense of increased political participation (Peronism in
Argentina, the 1952 Revolution in Bolivia, the Institutional Revolutionary
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Party, or PRI, in Mexico, the social-democratic overtures of the Democratic

Action party in Venezuela), the emphasis of regime legitimation shifted
towards social and economic justice. Regime legitimacy was linked more to
the redistributive capacity of states, which proved short-lived in many cases,
and less to securing citizenship rights – political and civil – in any
meaningful or enduring way (with important exceptions, notably Chile prior
to 1973). Military authoritarianism in the 1960s and 1970s represented an
outright negation of rule of law through the systematic violation of rights and
elimination of due process. The point here is that prior to the recent wave of
democratization in Latin America, constructing rule of law had typically not
been a state- and nation-building priority.18 It is only with democratization
that rule of law construction, and strengthening the judicial function of the
state have been promoted to the forefront of the political agenda.
Thus, to the extent that state-society relations, and political processes are
being judicialized in the context of post-authoritarian societies, this is
happening at a time when rule of law is still in many respects in its infancy.
At the same time, regime legitimation increasingly seems to hinge on the
state’s capacity to deliver on rule of law from a range of perspectives. With
the end of authoritarian rule, the integrative discourse of state-building and
democratic consolidation is increasingly tied to a language of legal and
political inclusion, moving away from the language of socio-economic
inclusion that characterized the populisms and ill-fated democratic efforts of
the post-depression decades. There is then, a dual process at play. On the
one hand regime legitimacy is increasingly built upon the promise of rule of
law, which in the current democratic endeavours, more so than ever before,
has become a very explicit aspiration of state-building. A second connected
but different phenomenon has to do with the greater public visibility of the
judicial dimension in policy processes and in state-society relations, which
is not in itself an indication that rule of law is being advanced in any
meaningful manner.
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114 D E M O C R AT I Z AT I O N

In Mexico and Argentina issues concerning rule of law, rights protection

and legal accountability have become prominent features on the political
agenda, with a different timing and weighting. (The events in Argentina over
the last couple of years have dramatically shifted the institutional and political
dynamics of a much weakened democratic system – notably, though, the
courts have remained pivotal to political and economic outcomes). In both
Argentina and Mexico by the turn of the twenty-first century, the following
justice, rule of law and law-enforcement issues were firmly placed on the
political map: (i) issues of rights protection – including political rights, human
rights, and civil rights – and access to justice; (ii) issues of legal accountability
and ending corruption and impunity in public office; (iii) an escalating
concern with issues of public security, rising crime rates and police
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corruption; (iv) some degree of business sector and international investment

concern with economic legal security. Next to economic performance, in both
countries it would appear that the prospect of regime legitimation and societal
embeddedness of state structures has become increasingly linked to the
effectiveness with which these issues are seen to be addressed.
In Mexico, the particular brand of authoritarian government under
dominant party rule which is now being put behind already provided for a
substantial degree of constitutional and juridical legitimation – at least in
nominal terms. Constitutional forms were rigidly upheld, electoral
calendars respected, and a discourse of rule of law was by no means
negligible. From the 1930s, the court system played the important role of
granting the regime juridical legitimacy, and also of generally upholding the
prevalent policy directions that the different PRI governments undertook.
So although the principles of rule of law were subordinated to the logic of
dominant party rule, a sophisticated state of legality was securely in place
and rooted not only in the 1917 constitution, but in fact in a number of tested
institutions dating back to nineteenth century constitutionalism.19
The succession of economic crises and the erosion of state corporatism
led to a gradual, if unwitting, reconstruction of the basis of legitimation
upon which the regime was premised.20 As the regime moved towards
economic, and eventually also political liberalization in the 1980s and
1990s, the political elite increasingly drew upon a discourse of liberal
democracy based on corresponding notions of rule of law and rights. These
changes were taking place at the level of political discourse, albeit in a
highly contradictory and ambivalent manner. In addition they reflected
changing public expectations and more pressing demands on the state to
bring its rule of law provision more in keeping with a liberal democratic
tradition. It is important to stress, though, the diverse and heterogenous
nature of societal demands in Mexico with regard to rule or law, rights and
law-enforcement.
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In Argentina, the experience of the break with military rule was critical
in propelling not only a political discourse of rights but also a societal
consciousness of the need to embrace constitutional democracy and rule of
law – moving away from the old logic of populism.21 Between 1930 and
1983, to different degrees, principles of rule of law and legality were
subordinated to the logic of praetorian military presence, and movimentista
populism in the form of Peronism. Members of the Supreme Court were
changed as a matter of routine with every regime changeover.22 The abrupt
nature of the transition process, the centrality of the human rights
movement, and President Alfonsín’s (1995–99) personal commitment to
bringing justice forced the human rights issue onto the agenda. The path that
was followed brought the judicial sector on to the political scene quite
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spectacularly, through its protagonistic role in the trials against members of

the armed forces. From a position of political marginality since the 1930s,
judges were now dictating political outcomes.23
The way in which the human rights question erupted on the political
scene and the political choices made at the moment of regime transition
regarding judicial politics at first appeared to augur well for how issues of
justice and rule of law would evolve in the subsequent decades. The
activism of the courts on the human rights front – as well as with regard to
important rulings which defied executive policy decisions – and an
unprecedented sense of judicial self-assertion prompted a sense of
confidence in the possibility of rule of law becoming a feature of political
life. Economic crisis, however – the other driving issue of the Alfonsín
administration – came to overshadow the concerns with rights and rule of
law issues. Peruzzotti suggests that concerns with legality, rule of law and
rights were temporarily postponed in the public mind, but the seeds of an
attachment to the principles of legality and rule of law had been sown in the
popular culture, marking a break with the movimentista past – not dissimilar
to the emergence of rule of law concerns in Mexico in the 1980s and
1990s.24 By the late 1990s issues of legal accountability, corruption and also
law-enforcement and public security were firmly on the electoral agenda, as
the political system slid towards a crisis of legitimacy, ultimately propelled
by the dramatic collapse of the economy in 2002.25
In both countries democratization has brought with it forceful
expressions of public expectations concerning rule of law issues. This
echoes the experience of other countries in the region during recent years.
It is important to stress that the sequence of emergence of the different
aspects of legality and rule of law as political and social issues varies
enormously from country to country, as does their respective significance as
matters of political debate or public opinion. Moreover, the greater presence
of public demands concerning rule of law issues by no means corresponds
to homogenous views or experiences about rights, citizenship and law and
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116 D E M O C R AT I Z AT I O N

order particularly given the scale of socio-economic disparities and levels of

marginality and exclusion.26
Nonetheless, the public airing of the legal dimension of state–society
relations, in its different forms, is throwing up important questions about
how citizenship is being defined and reclaimed, and about the basic role of
law and legal institutions in politics and society in transitional processes. Of
course many of these issues are also major public concerns in some
established democracies, especially with regard to law-enforcement and
public security issues, corruption and legal accountability. But the
distinctive problem for regimes in transition is that not only the credibility
of the political class is at stake, but also the stability of the democratic
process itself.
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Factors Contributing to Judicialization of Politics

The 1980s and 1990s, then, saw the dual process of rule of law emerging as
a prominent objective of state-building and of judicial processes becoming
a more salient feature of policy processes and state-society relations. In both
Mexico and Argentina social, political and institutional developments have
converged to allow for a greater public prominence of judicial processes.
But, in both cases this greater public presence of the courts has not
necessarily yielded a better quality of justice or a rule of law provision.

Social Actors, and Civil Society Mobilization around the Law. In the
immediate years of transition, the issue of how to deal with human rights
violations under military rule pushed the new democracies’ commitment to
enforcing the rule of law and due process onto the political agenda. Overall
there was widespread application of official amnesties, or silently pacted
pardons for the perpetrators of human rights violations, and even, in the case
of Uruguay, a referendum on the issue. What prevailed was the view, as
perceived at the time, that it was better to secure regime stability against the
threat of military destabilization of the uncertain process of democratization.
Nonetheless, the mobilization of human rights movements forced the issues
of rights, justice and rule of law into the public limelight. Nowhere was this
more vibrantly so than in Argentina in 1983. But more particularly, what
distinguished the Argentina case was that the issue was both initially
supported from above by the first democratic government and was well
received by the judges, who proved to be willing protagonists in the trials
against members of the armed forces. Smulovitz speaks of the ‘discovery’ of
the law by civil society resulting in part form the drama of the military trials
in the 1980s.27 On the one hand the law and recourse to the judicial system
came to be perceived as a potentially empowering instrument for civil
society. On the other, the experience of the trials facilitated a process of self-
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assertion by judges who were taking on an unprecedented protagonism in
how politically sensitive issues were decided.28
In Mexico mobilization from below on human rights issues has also
been critical – if less spectacular - in forcing human rights issues onto the
political agenda, and more recently in prompting the unexpected possibility
of investigating human rights abuses committed in the 1970s and 1980s.
Contrary to assumptions about the ‘untouchable’ past of the PRI, it seems
that the Mexican transition process cannot avoid confronting issues of truth
and justice about past abuses of human rights.29 The very gradual nature of
democratization in Mexico has played out in such a way that these issues
have crept up on the transition process almost by stealth – but significantly,
as in Argentina as a result of bottom-up human rights mobilization.30
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The ‘discovery’ of the law by civil society has contributed in part to the
process of judicialization of conflict within society and in state-society
relations beyond the realm of human rights violations. This is evident from
an increase in litigious activity and recourse to the justice system across a
range of activities and types of conflict.31 Smulovitz in part attributes this to
the mediatic discovery of the law which brings into play a different set of
problems for due process and rule of law. Impartial adjudication is
potentially endangered by unrestrained media coverage of cases.32
Societal mobilization around the law has also been the work of advocacy
groups, new social movements and non-governmental organisations
(NGOs) that represent group interests, or that seek to advance the protection
of specific rights. In some cases this has gone hand in hand with the
development of transnational networks of NGOs or associative
organizations that not only use the law to articulate demands upon the state,
but also develop transnational strategies to challenge state compliance with
existing domestic and international law, on the international stage.33

Institutional and Political Factors. Democratization involves a complex

process by which democratic actors (notably competing political parties,
and their leaders) are learning to play by new but often still fluid political
rules of the game. As the democratic process sets in, several institutional
dynamics come into play that are likely to lead to a re-positioning of
executive–judicial relations, which may also be renegotiated and in certain
cases reformed, in some cases propelling the judicial branch in the public
limelight. In part these reform processes respond to increased social
demands regarding the rule of law, and also to the exigencies of making
credible the discourse of rule of law activated through the return to
constitutional government. Moreover, as the logic of separation of powers
dawns, along with constitutional rule, judicial rulings become politically
relevant and authoritative, and their impact more difficult to overturn.
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118 D E M O C R AT I Z AT I O N

Judicial processes must now enter into the calculations of the different
political, social and economic actors.
Political liberalization opens up new institutional and legal spaces for
the expression of political and social conflict, as courts and judicial
decisions became politically relevant. But this will inevitably unsettle elite
groups and public officials who will be wary of the move towards greater
judicial scrutiny or legal accountability of their acts, especially where
strongly embedded illiberal attitudes prevail. Compliance with the logic of
separation of powers seems an inevitable corollary of democratization – and
not one that is wholly unwelcomed by governing elites, as it provides the
opportunity to ‘check’ the acts of political opponents. However, pockets of
resistance to rule of law are likely to persist. Moreover the temptations to
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seek to control the judicial branch (for example through court ‘packing’)
may imperil rule of law construction.
Judicial reform has been undertaken with singular enthusiasm
throughout Latin America, but with disappointing results. Reform
objectives have been a mixed bag, with varying degrees of political
commitment and consensus, and different emphases on the range of issues
that have been brought under the umbrella of judicial reform. These include:
measures to increase judicial independence and judicial review powers, in
some cases through the creation of constitutional courts; measures that
address administrative inefficiencies, in many cases through the creation of
judicial councils which have undertaken the bulk of administrative and
budgetary management; problems of access to justice, in part addressed
through the promotion of ADR mechanisms; and reform of the criminal
system and penal codes to improve transparency and speed. This by no
means exhaustive list it indicates the ambitious nature of judicial reform
efforts, and the degree to which rule of law issues are being taken seriously
by governing elites. Moreover, these reforms, however incomplete and
flawed, will have some (long-term) impact on reshaping judicial processes
and their place in democratic rule.
In Mexico the judicial reforms of the 1990s significantly contributed to
a re-accommodation of the judiciary in terms of its position within the
Mexican political system.34 The reforms were very important in propelling
greater judicial activism and a more politically assertive and independent
judiciary. But the changes in the political standing of the courts have also
been a consequence of a changing political environment, where successive
electoral defeats reduced the former political dominance of the PRI. Judicial
decisions since 1994 show a growing – and unprecedented – willingness by
the courts to confront the executive, even on potentially sensitive issues in
political and economic matters.
The Supreme Court is now a relevant political actor that must be taken
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into consideration by competing political actors. At the same time, though,
the increased protagonism of judicial decisions in Mexico does not signify
better justice administration, greater judicial impartiality or better access to
justice. Moreover, the image of the justice system has not improved overall.
Human rights violations are still a major systemic problem, as is endemic
corruption and impunity in the public sector. On the whole, the reform
efforts focused on the separation of powers, a crucial piece in the complex
puzzle of drawn-out political liberalization that has characterized the
Mexican transition. But little has been done in terms of addressing access to
justice, efficiency, improving mechanisms of legal accountability, or
introducing anti-corruption measures.
In Argentina the judiciary has undergone important changes under
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democratic rule. Alfonsín’s administration reflected a commitment to

strengthening judicial independence after so many decades of judicial
obscurity in public matters. This was facilitated by the process of judicial
self-assertion, as judges took on an unprecedented protagonism in how
politically sensitive issues were decided. Under President Menem
(1989–1995), paradoxically, more judicial reforms were undertaken using
the language of rule of law enhancement, but judicial impropriety became a
hallmark of his administration. The emphasis of the reforms was directed
towards improving judicial efficiency; at the same time there was a
deliberate political decision to subvert judicial independence so that the
judicial institutions suffered a major deterioration of their public image.35
The Menem presidency was particularly interesting with regard to
judicial politics. On the one hand, there was a clear awareness of the
importance of judicial politics, and building a political discourse around
rule of law construction. The reforms were not purely tokenistic. On the
other hand, the subordination of the judiciary to the executive reflected a
blatant disregard for the principles of judicial independence.36 Furthermore,
during this time the gains on the human rights front were reversed, and
political corruption escalated to alarming levels. Following the collapse of
the Argentine economy judiciary–executive relations have been highly
politicized, in particular around court rulings regarding the corralito and the
corralón (freezing of banking assets). The experience of democratization in
Argentina is an example of the complex process by which institutions are
transformed and reformulated at the same time as political actors are
learning to play by the rules of democratic competition, yet also seeking to
secure their own political interests.
Thus, democratization brings with it a complex political re-positioning
of the different branches of power. This will inevitably have an impact upon
the judges’ own self-perceptions and on how they see their social and
political role. In some cases this is evidenced by a process of real self-
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120 D E M O C R AT I Z AT I O N

assertion of the judicial branch. This may be the consequence of particular

judicial reforms and constitutional processes which have strengthened the
political role of judges, for instance through the expansion of their review
powers. It may also reflect the desire of judges to distance themselves from
an authoritarian past in which they may have been complicit. And it may
signal a change in self-perception in response to new and changing
expectations – political and social – that are placed upon them in a new
democratic environment.
This process of self-assertion of the judicial branch with
democratization is not necessarily linear, and nor does it automatically
generate public trust in the workings of the judicial branch. It does not
signal a strengthening of rule of law, for several reasons. For while judicial
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rulings may be becoming more prominent this does not mean that judges are
indeed acting independently and in impartial fulfilment of their role as
adjudicators. For another reason, whether judges act in good faith or not,
public opinion is not always willing to give them the benefit of the doubt.
Unpopular court rulings will be assumed to be politically motivated and
controlled. In addition, early signs of political independence at the top level
of judicial hierarchies may prove to be conjunctural rather than a true
reflection of any systemic change within the judicial branch more generally.
And they may prompt a defensive reaction by incumbent power holders in
the executive branch unwilling to make long-term concessions to judicial
scrutiny and independence. Thus the balance of power between branches is
continually shifting and being tested. The competing political actors in a
transition moment will flex their muscles and experiment with the rules of
constitutional government. There is then, a complex process of interaction
between short-term political calculations and institutional rules, which are
still not fixed, as the constitutional framework is still the object of reform
and transformation. Again, there are significant variations across the region.
Democratization has led to processes of reform which have signified
important gains on the judicial front. Despite the limited success of these
reforms in the region, their incomplete nature and uneven implementation,
we should be careful not to be too dismissive of their potential (if still
unfulfilled) contribution towards rule of law enhancement. At the same time
courts have in some cases become more self-assertive in their relationship
with other branches of power. Judges are now political actors to be reckoned
with. This has further contributed to the notion that politics is indeed being
judicialized. However, the public prominence of judicial processes that has
characterized some of the experiences of democratization in Latin America
tells us little about judicial independence and impartiality in the task of
adjudication. These are contested issues even in consolidated democracies
with long-standing traditions of rule of law. In recent post-transition
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societies we need to be particularly vigilant of the legacies of
authoritarianism and political impunity. Many sitting judges today in Latin
America are still the product of a not too distant illiberal past, and there is
reason to be wary about their potential susceptibility to past practices of
judicial improbity. It is this that has given rise to the concern that we are also
witnessing a politicization of the judiciary. At the same time, changing
institutional and political dynamics can shift attitudes and patterns of
behaviour, however piecemeal and frustratingly slow is the process.

International Developments and Regional Trends in Rule of Law and

Judicial Politics. In addition to the internal political, institutional and social
forces that are reshaping the interaction between law and politics and the
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role of legal institutions in democratizing societies, there is a broader

regional and international context, which is informing the way in which
legal practices and notions of rule of law are developing.
At one level, the consolidation of an international discourse of human
rights and rule of law promotion combined with a range of international
treaties and agreements on basic human rights (plus some specific areas of
rights such as indigenous peoples’ rights and women’s rights) has resulted
in the establishment of international standards, against which state practices
can at least be measured if not penalized. Moreover, new democratic states
are somewhat more concerned than in the past with proving their
democratic credentials to the international community. On the human rights
front, the international public community still lacks the teeth necessary to
force compliance, although the ‘moral’ pressure is not insignificant.
Isolated events like the dramatic arrest of the former Chilean dictator
Augusto Pinochet, in London, can have a profound impact on the direction
of judicial developments at the national level. In Chile, it contributed to
reframing the entire human rights question politically, institutionally and
within the legal community. Significantly, also, the case was a forceful
indication that human rights issues are no longer the domain of nation-
states. At the regional level, the Inter-American framework of rights
protection is very slowly shaping up to become an institution that states
need to reckon with.
The transnational networks of advocacy that operate ‘beyond borders’
both act as a reinforcement of a rights-based political discourse and
practice,37 and are important in denouncing delinquent states at the national
and international level. Transnational networks are emerging not only
between non-state actors but also between agents within the state, such as
the Organization of Supreme Courts of the Americas. ‘These networks
produce a tremendous cross-fertilization of ideas and the gradual evolution
of a transnational consensus on specific rules and approaches that can then
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be formally implemented as international treaties and/or national statutes’.38

These emerging regional networks of exchange between infra-state actors
such as judges, prosecutors and the like may lead to processes of
socialization of their members, reinforcing an attachment across national
boundaries to the values and practice of rule of law.
Finally, there is little doubt that the international donor community is
also taking rule of law issues seriously, judging by the scale of resources
that have been devoted to judicial reform and rule of law promotion in a
wide range of guises.39 The international efforts of rule of law promotion
have been highly problematic. Reform projects are fraught with
contradictions and conflicting agendas. For instance, the objectives of, say,
improving economic legal security for property rights has done little for the
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promotion of rights-based development or improving access to justice.

Critiques of these endeavours point to the wastage and mismanagement of
resources in the design and implementation process of these reforms, and
suggest that they often represent ill-conceived but universally applied
prescriptions that bear little relation to specific local needs and conditions.
While the balance sheet of rule of law promotion by international donor
organizations to all appearances indicates that the disappointments
outweigh the successes, we should not be too quick to dismiss the merits of
some of the reform initiatives, which may over time prove to be useful
building blocks in the quest for improved justice administration. Moreover
there is some degree of learning by doing.

Some Conclusions
The judicialization of politics may indeed be a feature of the modern
democratic state. It appears also to be a phenomenon within the younger
democracies of Latin America. Moreover, with democratization it would
seem that regime legitimacy is increasingly tied to the effective delivery of
the rule of law as a matter of rights protection, and also as a mechanism of
constitutional and judicial check on political power and public office. The
reality, however, is that the judicialization of politics in Latin America is
taking place at a time when the state of rule of law and justice system
presents a far from encouraging picture.
Some judicial reforms have in some cases considerably altered the
political powers and standing of the judiciary in its relationship with the
executive and the legislative. This has further encouraged a process of self-
assertion of the judicial function, as judges moved from a position of
obscurity and marginality to becoming central actors in the resolution of a
range of political and social conflicts. Democratization itself produces
expectations upon the judiciary to begin to fulfil its role of constitutional
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guardian and rights protection, giving members of this branch a perhaps
unprecedented sense of the public importance of their role. In some
countries this has further emboldened the judiciary in its relationship with
other branches of government.
Power-holders in the executive branch may resist judicial encroachment
on the policy-making process, by seeking to subordinate the judiciary to
political control, by undermining their credibility and public image, and in
some instances by subverting the implementation of judicial reforms. At the
same time, the political class seeks to legitimize policy decisions and
democratic government through allusion to a rule of law discourse. This is
all the more so as institutions of representative government experience deep
crises of credibility, in the estimation of public opinion. In practice, though,
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there is little sense of progress. The hope is that over time some of the
judicial reforms that are being legislated, when combined with changing
political attitudes will generate valuable shifts in the legal culture, towards
strengthening the rule of law.
The judicialization of politics is by no means merely a top–down
process. It is also the result of legal mobilization from below. In some
respects the law is being reclaimed or appropriated by ‘civil society’ as a
means to advance certain issues and contest government policy.
It is important to emphasise, though, that it does not follow that a
judicialization of politics means that principles of rule of law and due
process are necessarily being strengthened. A judicialization of politics may
take place despite the fragility of rule of law. Moreover, failure to live up to
the expectations of rule of law that it reflects places yet another burden on
the embattled democracies of the region.
In important respects the international context of the 1980s and 1990s
has served to re-enforce a discourse of rights and rule of law. At the same
time, though, neo-liberalism has perpetuated patterns of exclusion and
marginality that undermine the development of citizenship. Finally, the
developments in international politics following the terrorism events of
‘9/11’, and growing concerns with public security issues and crime, are now
prompting a far from liberal international agenda of law and order that may
seriously undermine the prospects for a rights-based development in
democratic polities, old as well as new.

NOTES

1. For instance, the reactivation of old constitutions, as in Argentina, will leave intact the
general framework of the judicial branch; by contrast, the constituent process in Brazil in
1988 established a range of new judicial rules and institutions.
2. Herbert Jacob, Erhard Blankkenburg, Herbert Kritzer, Doris Marie Provine, Joseph Sanders,
Courts, Law and Politics in Comparative Perspective (New Haven, CT: Yale University
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124 D E M O C R AT I Z AT I O N

Press, 1996), Mauro Cappelletti, The Judicial Process in Comparative Perspective (Oxford:
Clarendon Press, 1989).
3. Civil law judges are increasingly taking on a more ‘interpretative’ role, and begin to cite their
own decisions as precedent: in common law countries, growing segments of the law are
codified, the application of which is less open to interpretation and discretion. See Herbert
Jacob, ‘Introduction’, in Jacob et al., pp.1–17.
4. See for instance Cappelletti; Jacob; Charles Epp, The Rights Revolution: Lawyers, Activists
and Supreme Courts in Comparative Perspective (Chicago, IL: University of Chicago Press,
1998); Catalina Smulovitz, ‘The Discovery of Law: Political Consequences in the Argentine
Case’, in Yves Dezalay and Garth Bryant (eds), Global Prescriptions: The Production,
Exportation, and Importation of a New Legal Orthodoxy (Ann Arbor, MI: Michigan
University Press, 2002), pp.249–75; Neal Tate and Torbjörn Vallinder (eds), The Global
Expansion of Judicial Power, (New York: New York University Press, 1995); T. Vallinder,
‘The Judicialization of Politics – A World-Wide Phenomenon: Introduction’, International
Political Science Review, Vol.15, No.2 (1994), pp.91–100; J.L Waltman and K.M.Holland,
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The Political Role of Law in Modern Democracies (London: Macmillan Press, 1988); M.
Volcansek (ed.), Judicial Politics and Policy-Making in Western Europe (London: Frank
Cass Publishers, 1992). Martin Shapiro, Courts: A Comparative Political Analysis,
(Chicago, IL: Chicago University Press, 1981) represents a pioneer work in the study of the
political role of judges.
5. J.L. Waltman, ‘The Courts and Political Change in Post-Industrial Society’, in Waltman and
Holland, pp.216–17.
6. Juan Mendez, Guillermo O’Donnell and Paulo Sergio Pinheiro (eds), The Unrule of Law and
Democracy in Latin America (Notre Dame, IL: The University of Notre Dame Press, 1998).
7. Cappelletti.
8. P. Pederzoli and C. Guarnier, ‘The Judicialization of Politics, Italian Style,’ Journal of
Modern Italian Studies, Vol.2, No.3 (1997), pp.321–36.
9. For instance, European Union human rights obligations.
10. See Smulovitz ‘The Discovery of Law’.
11. See Cappelletti.
12. Epp.
13. See Kathryn Sikkink, ‘Transnational Advocacy Networks and the Social Construction of
Legal Rules’, in Dezalay and Bryant, pp.37–64; Margaret Keck and Kathryn Sikkink,
Activists Beyond Borders: Advocacy Networks in International Politics, (Ithaca, NY: Cornell
University Press, 1998).
14. Anne-Marie Slaughter, ‘Breaking Out: the Proliferation of Actors in the International
System’, in Dezalay and Bryant, pp.12–36.
15. See Vallinder, Volcansek; Epp.
16. See Guillermo O’Donnell, ‘On the State, Democratization and Some Conceptual Problems:
A Latin American View with Glances at Some Post-Communist Countries’, in World
Development, Vol.21, No.8 (1993), pp.1355–70, and Laurence Whitehead, ‘State
Organization in Latin America since 1930’, in Leslie Bethell (ed.), Latin America: Economy
and Society since 1930 (Cambridge: Cambridge University Press, 1998), pp.381–411.
17. See Jeremy Adelman and Miguel Angel Centeno, ‘Between Liberalism and Neo-liberalism:
Law’s Dilemma in Latin America’, in Dezalay and Bryant, pp.139–61.
18. To the extent that rule of law was part of the liberal discourse of nineteenth-century oligarchic
constitutionalism it was conceived of in a restricted manner, with limited relevance for the
majority of the population other than as a measure of social control. At the same time, though,
it is important to note the existence of long-standing juridical traditions and centralized legal
systems in a formal sense, however problematic their insertion in society.
19. The amparo suit as the main form of judicial review, the principle of non-intervention in
political and electoral matters by the courts, weak separation of powers were all firmly in
place by the end of the nineteenth century.
20. State corporatism and the social pact that underpinned the relative pax priista of the regime
at least until the 1960s or 1970s (if not until the 1980s) had been part of the revolutionary
discourse of legitimation.
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21. Enrique Peruzzotti,‘The Nature of the New Argentina Democracy: The Delegative Democracy
Argument Revisited’, Journal of Latin American Studies, Vol.33 (2001), pp.133–55.
22. Robert Biles, ‘The Position of the Judiciary in the Political Systems of Argentina and
Mexico’, Lawyer of the Americas, Vol.8 (1976), pp.287–318; William Prillamen, The
Judiciary and Domestic Decay in Latin America (London: Praeger, 2000).
23. Catalina Smulovitz, ‘Constitución y Poder Judicial en la Nueva Democracia Argentina. La
Experiencia de las Instituciones’, in Carlos Acuña et al. (eds), La Nueva Matriz Política
Argentina, (Buenos Aires: Ediciones Nueva Vision, 1995); Smulovitz ‘The Discovery of
Law’; Peruzzotti; Prillamen.
24. See Peruzzotti.
25. During the 1990s public concern about failings of rule of law was much less about human
rights issues and much more about corruption, accountability and law-enforcement.
Nonetheless, the human rights question has not gone away.
26. In multi-ethnic societies, the mobilization of indigenous groups in recent decades has forced
onto the political agenda a discussion of the tensions between liberal democratic conceptions
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of rights and law and community based notions of justice. See Rachel Sieder, ‘Recognizing
Indigenous Law and the Politics of State Formation in Mesoamerica’, in Rachel Sieder (ed.),
Multiculturalism in Latin America: Indigenous Rights, Diversity and Democracy (London:
Palgrave, 2002), pp.184–207.
27. See Smulovitz, ‘The Discovery of Law’ for an insightful discussion of the judicialization of
politics in Argentina.
28. See Carlos Acuña and Catalina Smulovitz, , ‘How to Guard the Guardians: Feasibility, Risks
and Benefits of Judicial Punishment of Past Rights Violations in New Democracies (Some
Lessons from the Argentine Experience)’, in James McAdams (ed.), Transitional Justice and
the Rule of Law in New Democracies (Notre Dame, IL: University of Notre Dame, 1995),
Smulovitz, ‘The Discovery Of Law’; Peruzzotti; Prillamen.
29. Until recently, there was little sense that human rights abuses which have been committed in
Mexico either by state agencies, public officials, or on their behalf, would be held up to any
kind of systematic truth-telling process or judicial scrutiny, as part of the transition process.
It seemed that the peculiarities of authoritarianism a la mexicana meant that the state could
hide behind the shield of constitutional rule and the discourse of rule of law. Moreover,
human rights abuses and political violence were never in the hands of a centralized or easily
identifiable machine of repression. At the same time, the undercurrent of political violence
has rarely been absent from Mexican politics, at times reaching quite alarming proportions.
30. Christopher Welna, ‘Reform of Justice and the Proliferation of Human Rights Non-
Governmental Organizations (NGOs) in Mexico (1977–1994)’, CIDE Working Paper
(Mexico DF: CIDE, 1997).
31. Catalina Smulovitz, ‘Judicialización y Accountability Social en Argentina’, unpublished
manuscript, 2001.
32. Smulovitz, ‘The Discovery of Law’, p.259.
33. See Sikkink; Keck and Sikkink; Slaughter.
34. The constitutional reform of 1994 reform increased judicial independence from the executive
(although President Zedillo packed the court in 1995) through a new appointments system;
it increased the review powers of the court which can now act in some instances as a
constitutional court; greater financial autonomy was granted; a judicial council was created.
The creation of the Comision Nacional de Derechos Humanos in 1992 (with all its
limitations) provided a new institutional space for human rights denunciation. Finally, the
1996 constitutional reform significantly extended the review powers of the judicial branch to
electoral matters, overturning a long-standing tradition of non-intervention by the courts in
electoral conflicts. See for a discussion of the reform in Mexico, Pilar Domingo, ‘Judicial
Independence: The Politics of the Supreme Court in Mexico’, Journal of Latin American
Studies, Vol.32, No.3 (2000), pp.705–35; Todd Eisenstad, ‘Off the Streets and into the
Courtrooms: Resolving Post-electoral Conflicts in Mexico’, in Andreas Schedler, Larry
Diamond, and Marc F. Plattner (eds), The Self Restraining State: Power and Accountability
in New Democracies (Boulder, CO: Lynne Rienner, 1999), pp.83–104; Hector Fix Fierro,
‘Judicial Reform and the Supreme Court of Mexico: The Trajectory of Three Years’,
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US–Mexico Law Journal, Vol.6 (1998), pp.1–21; Jorge Vargas, ‘The Rebirth of the Supreme
Court of Mexico: An Appraisal of President Zedillo’s Judicial Reform of 1995’, The
American University Journal of International Law and Policy, Vol. 11 (1996), pp.295–341.
35. The reforms consisted essentially of the following. In 1990, the number of supreme court
members was increased from five to nine. Following the resignation of two members of the
supreme court, this measure effectively allowed President Menem to pack the court,
appointing six out of the nine members. The Olivos Pact and the 1994 constitutional reforms
led to the establishment of the judicial council and to changes in the appointments methods
for supreme court judges. Oral proceedings were introduced in criminal justice mechanisms.
See Catalina Smulovitz, ‘Constitución y Poder Judicial en la Nueva Democracia Argentina.
La Experiencia de las Instituciones’, in Acuña et al.
36. Precisely because policy decisions are in important ways decided at the level of the courts,
all the more reason for Menem to want to control the courts (as applied also to his successor,
President Duhalde). This has led to the charge that courts were being politicized, following
a number of dubious judicial rulings on the constitutionality of governmental decrees and
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economic measures under Menem. Although constitutional norms have not been subverted
in an outright fashion - an improvement on the military regimes of the past – the Menem
administration went to a great deal of effort to secure the loyalty and support of the judicial
branch. See Roberto Gargarella, ‘Después del Diluvio. El Perfeccionismo Conservador en la
Nueva Jurisprudencia de la Corte Suprema (1990–1997)’, Desarrollo Económico: Revista de
Ciencias Sociales, Vol.38 (1998), pp.439–56; Gretchen Helmke, Ruling Against the Rulers:
Insecure Tenure and Judicial Independence in Argentina, 1975–1995, University of Chicago
working paper, 1999; Horacio Verbitsky, Hacer la Corte: La Creación de un Poder sin
control ni justicia (Buenos Aires, 1993); E. Zaffaroni, ‘Independencia Judicial en la
Argentina en el momento actual,’ unpublished paper given at the conference on Judicial
reform in Argentina, at Institute of Latin American Studies, London, January 1998.
37. See Keck and Sikkink; Sikkink.
38. See Slaughter, p.19.
39. See Pilar Domingo and Rachel Sieder (eds), Rule of Law in Latin America: The International
Promotion of Judicial Reform (London: Institute of Latin American Studies, 2001).

Manuscript accepted for publication March 2003.

Address for correspondence: Pilar Domoingo, Instituto de Iberoamérica y Portugal, C/San Pablo
26, Torre de Abrantes, 37001 Salamance, Spain.