Judicial Reform in Latin America: A Framework for National Development

Friday, December 1, 1995

Judicial reform is essential in Latin America today if the domestic and international economic changes that have drawn so much worldwide attention are to succeed. Yet heretofore this aspect of reform has usually drawn only passing attention or none at all in the region and beyond. We believe that this indifference cannot continue because law is the underpinning of true democracy and lasting economic reform, both within individual countries and in foreign relations in the emerging world of competition and interaction among nations. We examine this phenomenon from the combined perspectives of law, economics, political science, and history.

First, we describe the problem--the crisis within the judicial system in Latin America today that may itself precipitate changes that would be difficult or impossible to achieve otherwise. We offer new data on perceptions of the current crisis from within the judicial sectors themselves and societies at large. We touch as well on some nonjudicial factors, ranging from institutional inertia to traditional ways of thought and the quality of political leadership, that affect the role of law in society and that in varying ways promote or impede reform.

Second, we discuss judicial reforms needed today to bring justice to all levels of society by enhancing efficiency and reducing and in time eliminating the predatory role of the state, all of which are present or needed in judicial reforms under consideration or being implemented in varying degrees in Latin America. This part analyzes how factors related to the predatory power of the state--such as "rent seeking" (the bribe culture) and other unofficial activities, conducted by different groups within the public sector--increase the institutional inertia observed during judicial reforms. Our proposals take into account both the expected costs and the benefits of judicial reform for the people in general but also for government officials and politicians, considerations that are essential if reforms are to be drawn up realistically and enacted. In doing so we do not think of judicial reform as an entirely consensual matter but often as the playing off of one self-interested group in the government against another that is too weakened by the current crisis to resist effectively. Thus may the door open to long-term positive reform.