Envisioning Reform

Envisioning Reform: Conceptual and Practical Obstacles to Improving Judicial Performance in Latin America

LINN HAMMERGREN
Copyright Date: 2007
Pages: 360
https://www.jstor.org/stable/10.5325/j.ctt7v4jn
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  • Book Info
    Envisioning Reform
    Book Description:

    Judicial reform became an important part of the agenda for development in Latin America early in the 1980s, when countries in the region started the process of democratization. Connections began to be made between judicial performance and market-based growth, and development specialists turned their attention to “second generation” institutional reforms. Although considerable progress has been made already in strengthening the judiciary and its supporting infrastructure (police, prosecutors, public defense counsel, the private bar, law schools, and the like), much remains to be done. Linn Hammergren’s book aims to turn the spotlight on the problems in the movement toward judicial reform in Latin America over the past two decades and to suggest ways to keep the movement on track toward achieving its multiple, though often conflicting, goals. After Part I’s overview of the reform movement’s history since the 1980s, Part II examines five approaches that have been taken to judicial reform, tracing their intellectual origins, historical and strategic development, the roles of local and international participants, and their relative success in producing positive change. Part III builds on this evaluation of the five partial approaches by offering a synthetic critique aimed at showing how to turn approaches into strategies, how to ensure they are based on experiential knowledge, and how to unite separate lines of action.

    eISBN: 978-0-271-05468-1
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. ACKNOWLEDGMENTS
    (pp. vii-viii)
  4. INTRODUCTION: TWENTY YEARS OF REFORMS AND NOT A CONSENSUS IN SIGHT
    (pp. 1-24)

    Judicial reform remains a growth industry in Latin American, for both practitioners and, increasingly, their critics. Nearly twenty years of experience in promoting change in the region’s judiciaries seems hardly to have tapped the potential or dampened the enthusiasm for arming new programs. Courts, which once regarded the reforms with utmost suspicion, now have become proponents in their own right. They have been joined by a wide variety of domestic and international players who also want a part in defining what will be done and providing assistance in carrying it out. The reform agenda has expanded well beyond the judiciary,...

  5. PART I: FIVE APPROACHES TO JUDICIAL REFORM
    • ONE CRIMINAL JUSTICE REFORM: HUMAN RIGHTS, CRIME CONTROL, AND OTHER UNLIKELY BEDFELLOWS
      (pp. 27-54)

      Criminal justice was the target for the first Latin American judicial reforms, and for many it remains the main act. Implementation of the reforms that began in the mid-1980s continues to this day. Their early emergence is explained by the conjunction of several factors. First was the longer-term interest among Latin American jurists in effecting a change to more accusatory criminal justice proceedings, following trends in Europe and some earlier initiatives in Latin America itself.¹ Second was the region’s emergence from a period of authoritarian governments during which its judicial systems had generally deteriorated in quality because of political interference...

    • TWO JUDICIAL MODERNIZATION: INCREASING THE EFFICIENCY AND EFFICACY OF COURT ACTIONS
      (pp. 55-96)

      The discussion in this chapter focuses on two versions of judicial modernization strategy: that seeking modernization “for its own sake,” a frequent goal of judiciaries, and efforts to augment the efficiency and efficacy of court actions, largely through the rationalization of internal processes and the addition of modern technologies. A final note reviews a related strategic objective, improving the courts’ impact on economic transactions and investment. It is included here because it also emphasizes efficiency, albeit with a few additional activities—modernization of laws and the creation of special courts. In light of the frequent argument that a well-functioning, modern...

    • THREE DEVELOPING A PROFESSIONAL, INSTITUTIONALLY INDEPENDENT JUDICIARY
      (pp. 97-130)

      Judicial strengthening—commonly understood as the development of a technically proficient, professionally oriented, organizationally autonomous court system—might logically have been the first step in the reform process. Instead, it was displaced by the initial concerns about the quality of criminal justice and the donors’ emphasis on efficiency. As explained, participants in these other two areas either assumed they could advance their cause without immediate reforms to the institutional structure or preferred to ignore the issue out of an inability to deal with it simultaneously, or at all. Nonetheless, judicial strengthening has been a continuing theme throughout the twenty- year...

    • FOUR ACCESS TO JUSTICE: LEGAL ASSISTANCE, SPECIAL COURTS, ALTERNATIVE DISPUTE RESOLUTION, AND BEYOND
      (pp. 131-169)

      Access to justice holds an odd place in judicial reform programs. Logically, it could be the all-encompassing goal—that of ensuring that citizens share equally in the benefits of a well-functioning justice system. Theoretically, many of these benefits, like those provided by a public health, education, or security system, can be enjoyed by citizens who never receive direct attention. The guarantee that services will be available if needed is important, but it is a condition for, not the essence of, the public good provided. For justice, that good can be described as juridical security, rule of law, or a widely...

    • FIVE STRENGTHENING THE JUDICIARY’S ROLE AS A CHECK ON OTHER BRANCHES OF GOVERNMENT
      (pp. 170-210)

      One frequent criticism of judicial reforms is that they are overly technical and insufficiently political. Though most often addressed to donor programs, the comment is equally applicable to many purely local efforts. The judiciary is no ordinary provider of public services. In Latin America it has long been considered a political power as well, a status assumed to influence how it operates and broaden the impact of its actions.¹ Many of the justifications for undertaking reforms emphasize their positive consequences for overall political stability, democratic governance, and the protection of citizen rights. Yet, to the extent reform programs attempt to...

  6. PART II: PROBLEMS AND REMEDIES
    • SIX JUDICIAL REFORM AS A PROBLEM OF FOCUS: WHY THE PARTS DON’T ADD UP TO A COHERENT WHOLE
      (pp. 213-240)

      Judicial reform is a new discipline, but not so new that it escapes questions about its intellectual and practical value. In the past few years, external observers and long-term participants have begun a serious reexamination of its accomplishments on both dimensions. This process is not likely to end soon, especially regarding the more transcendental questions about reform’s ultimate objectives and purpose. There is an emerging consensus that neither these nor a series of more immediate concerns are likely to be advanced without direct attention to some basic flaws in the disciplinary development and its application to real problems. Here critics...

    • SEVEN IMPROVING THE KNOWLEDGE BASE FOR JUDICIAL REFORM PROGRAMS
      (pp. 241-270)

      Despite a growing recognition of the importance of this undertaking, progress is best described as incipient, disjointed, and overly redundant.¹ This chapter offers some practical recommendations for accelerating the process, focusing on how reform participants can improve the information used and generated by their individual activities and convert it into a common knowledge base accessible to and utilized by all players. Four key elements in that effort are assessments, monitoring, evaluation, and research. Though discussed separately, they are interrelated and ideally should build on each other. The emphasis on field interventions might seem illogical given practitioners’ bias toward action as...

    • EIGHT TOWARD A MORE STRATEGIC MODEL
      (pp. 271-305)

      This chapter was first drafted in Argentina in late-2003, a setting providing a number of cautionary lessons for would-be judicial reformers. The lessons derive from the fact that in the prior decade Argentina made notable strides in implementing many of the usual reform recommendations. This was done in a less concentrated and publicized fashion than has been customary in most countries. As a consequence, it is probably misleading to speak of a single Argentine reform. Aside from the constitutional amendments introduced in 1994, many of the changes occurred gradually and with minimal central direction or planning. Nonetheless, the nation’s political...

    • NINE A POLITICAL AGENDA FOR REFORMING THE REFORMS
      (pp. 306-320)

      The arguments developed in the preceding chapters emphasize the need for a more empirically based, strategic approach to judicial reform, one that coordinates the multitude of activities currently included in reform programs by defining and validating their linkages to longer-term objectives and aims. An improved strategic framework is more than an exercise in abstract theory building. Its practical utility also depends on its being firmly grounded in knowledge accumulated through experience and research. The need for this undertaking arises in the growing sense that two decades of Latin American judicial reform programs have delivered less than promised and are beginning...

  7. REFERENCES
    (pp. 321-339)
  8. INDEX
    (pp. 340-352)
  9. Back Matter
    (pp. 353-353)