Fall 2006 Seminar
Javier Couso
Professor of Law and Politics, Diego Portales Law School
Visiting Tinker Professor, University of Wisconsin Law School
“The Politics of Judicial Independence in Latin America”
I ) General Description of the Seminar
The proposed seminar will be directed to students of law
and the social sciences (particularly from political science,
sociology, and Latin American Studies) interested in the study of
Latin American law and courts.
The subject of this inter-disciplinary seminar will be a
survey of the politics of judicial independence in Latin America.
Combining the analytical tools and literature on the subject
produced by law, political science, and history, the seminar will
first analyze the recent breakdown of the independence of the
judiciary in many Latin American countries (since the return to
democratic rule), in order to then explore the historical, political,
and social elements underlying the traditional difficulty which
most countries of the region have encountered in their attempts to
consolidate an independent and impartial judicial branch.
This inter-disciplinary seminar will be open to JD and
graduate MLI students at the Law School, students in the MA
program in Latin American Studies, Political Science and other
social science graduate students, as well as advanced
undergraduate students in Latin American Studies, Legal Studies,
and Political Science. The seminar will be evaluated through a
term research-paper.
II) Background
Paralleling the work done in field of democratization
studies in the seventies, which inaugurated the field by conducting
systematic accounts of the ‘breakdown of democracies’ (Linz &
Stepan, 1978), the seminar will analyze the breakdown of judicial
independence in Latin America in the era of democratic transition,
in order to identify patterns of collapse and resistance which will
hopefully shed some light on the factors contributing to the
preservation of judicial independence in fragile democracies. A
comparative analysis of the collapse of judicial independence in
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Latin American countries is feasible due to the regrettable record
of political intervention of the judiciary experienced by many
states of the region over the last two decades. The idea is to focus
on the loss of judicial independence of the high courts of the
regular judiciary or that of constitutional courts, when they exist.
A preliminary observation of the collapse of judicial
independence in high courts and constitutional tribunals in Latin
America in the post-authoritarian era suggests the existence of two
different patterns of judicial independence breakdown: i) The
outright destruction of the judicial independence by direct,
unconstitutional intervention by the executive –this includes the
cases of Peru under Fujimori (in 1992); Venezuela under Chavez
(in 1999), and more recently, that of Ecuador (2004) and Paraguay
(2005); or ii) The more subtle ‘neutralization’ or ‘cooptation’ of
the judiciary through ‘packing schemes’ in which the executive
branch manages to take control of the majority of the high court
through the manipulation of the constitutional and legal rules of
appointment and discharge of high court justices –cases of this
kind of include Argentina under Menem (1991); Brazil under
Cardoso (1996); and the current attempt by Uribe to control the
Constitutional Court of Colombia (2004-2005).
Once the patterns of judicial independence breakdown have
been established, the idea is to explore structural and strategic
factors potentially explaining the collapse of high court autonomy
from the executive power, such as the lack of enough political
fragmentation of power in the political party system, or between
Congress and the presidency; lack of sufficient support to the
courts by organizations of civil society, such as the organized bar,
the legal academy or non governmental organizations; or lack of a
sprit de corps in the judicial branch.
III) Bibliography
Buscaglia, E., “An Analysis of Judicial Corruption and Its Causes:
An Objective Governing-Based Approach”. In International
Review of Law and Economics, 21 233-249 (2001);
Correa Sutil, J., “The Judiciary and the Political System in Chile:
The Dilemmas of Judicial Independence during the Transition to
Democracy”. In Irwin Stotzky (ed.) Transition to Democracy in
Latin America: the Role of the Judiciary (Boulder: Westview
Press, 1993);
Couso, Javier, “Judicial Independence in Latin America: The
Lessons of History in the Search for an Always Elusive Ideal”, in
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Tom Ginsburg and Robert Kagan, eds., Institutions and Public
Law: Comparative Approaches (New York: Peter Lang Publishing
Group, 2005);
Dodson, Michael, and D. Jackson, “Judicial Independence and
Instability in Central America”. In Peter Russell and David M.
O’Brien, eds., Judicial Independence in the Age of Democracy.
Critical Perspectives from Around the World (Charlottesville and
London: University of Virginia Press, 2001). Pages 251-272.
Domingo, Pilar, “Judicial Independence and Judicial Reform in
Latin America”. In Andreas Shedler, Larry Diamond, & Marc
Plattner eds., The self-restraining state (Boulder, CO: Lynne
Rienner, 1999);
Domingo, Pilar, “Judicial independence: The Politics of the
Supreme Court in Mexico”. In Journal of Latin American Studies,
32(3), 705-735 (2000);
Fiss, Owen, “The Limits of Judicial Independence”. In University
of Miami Inter-American Law Review 25, 57 (1993);
Helmke, G. (2002) “The Logic of Strategic Defection: CourtExecutive Relations in Argentina under Dictatorship and
Democracy”. In American Political Science Review 96, (2): 291-303.
Larkins, C., “Judicial Independence and Democratization: A
Theoretical and Conceptual Analysis”. In The American Journal of
Comparative Law 44 Fall, 605-626 (1996);
Malleson, K., “Judicial Bias and Disqualification after Pinochet”.
In Modern Law Review 63(1): 119-128 (2000);
Miller, Jonathan, “Evaluating the Argentine Supreme Court Under
Presidents Alfonsín and Menem (1983-1999)”. In Southwestern
Journal of Law and Trade in the Americas 7 Sw. J.L. & Trade Am.
369 (Fall 2000);
Morse, Richard, “Towards a Theory of Spanish American
Government.” In Journal of the History of Ideas, 15 (1954);
Rosenn, K., “The Protection of Judicial Independence in Latin
America”. In University of Miami Inter-American Law Review 19,
1-35 (1987);
Toharia, J., “Judicial Independence in an Authoritarian Regime:
The Case of Contemporary Spain”. In Law and Society Review 9,
475-96 (1975);
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Verner, J., “The Independence of Supreme Courts in Latin
America: A Review of the Literature”. In Journal of Latin
American Studies 16, 463-506 (1984);
Wallace, J., “Resolving Judicial Corruption While Preserving
Judicial Independence: Comparative Perspectives”. In Western
International Law Journal 28, 341-351 (1998).
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