Judicial reform and democratic consolidation in Latin America (El Salvador, Brazil, Argentina, Chile)

In recent years observers have become increasingly aware of the connection between a healthy judiciary and the success of the democratic regime. Yet our understanding of this relationship is hindered by several factors: a lack of literature examining the subject; the absence of a consensus on what constitutes a healthy judiciary--and what indicators suggest progress or decay over time; and the lack of a broad theory of judicial reform. Judicial reformers make a number of assumptions that have consistently proven to be false and often counterproductive, such as assuming that one aspect of the judiciary can be isolated and reformed without reference to other aspects of the courts; that judicial reform is merely a technical process subject to institutional tinkering; and that judicial reform, because it represents a collective good universally desired by society, can be isolated from politics as a whole.; Four case studies--El Salvador, Brazil, Argentina, and Chile--highlight the weaknesses of these conventional assumptions. First, it is not possible to isolated one aspect of the courts and reform it without reference to other facets of the judiciary. One reformed aspect does not lead naturally to improvements in other areas: and in fact the opposite is closer to the truth. In the three case studies detailed failed reform efforts, the unreformed aspects of the courts undermined or overwhelmed the reformed aspects of the court.; More fundamentally, judicial reform is, at bottom, an intensely political process. It requires political will to ignite and sustain a reform program and to overcome the opposition that a reform invariably attracts. Far from being a collective good that is widely desired, an independent, accountable, efficient, accessible judiciary confronts a number of adversaries: extremists on the far right and far left (El Salvador), the armed forces (Argentina and Chile), presidents with parochial agendas (Argentina and Brazil), and a disinterested Congress (Brazil). Reforms also trigger extensive opposition from the judiciary itself, particularly from senior judges who resist greater oversight and fear reforms that would reduce their personal and institutional influence.; The failure of various Latin American governments to make greater headway on judicial reform has stark implications for democratic consolidation. Through the region, polls reveal a hardening of public attitudes, growing support for vigilante justice, and a growing appeal of law and order politicians who pledge to fill the gap created by inefficient and unreliable judicial institutions, creating the impression of democratic decay rather than consolidation.