Legal Culture and the Judicialization of Politics in Latin America

Interdisciplinary Workshop for Faculty and Graduate Students
Nov. 17-18, 2006
Lubar Commons (UW Law School room 7200)

Agenda: Public sessions run 10:00 am - 6:15 pm on Friday and 8:30-12:15 on Saturday. (Executive sessions for panelists and organizers will take place before and after the public sessions.)

Organizers: Javier Couso, Universidad Diego Portales, Chile, and 2006 Visiting Tinker Professor, University of Wisconsin Law School; Alexandra Huneeus, Stanford University 2006-07, and University of Wisconsin legal studies faculty starting in 2007; and Pablo Rueda, University of California, Berkeley. Panelists include distinguished international scholars and UW faculty.

Sponsors: the Global Legal Studies Initiative, the Center for World Affairs and the Global Economy (WAGE), the Wisconsin Project on Governance and Regulation (WISGAR), the Latin American, Caribbean and Iberian Studies Program (LACIS), and the Institute for Legal Studies at the University of Wisconsin Law School in conjunction with the Law and Society Association Program on International Research Collaboration (PIRC)..

Free Registration: This workshop is open to faculty, students, and other interested members of the community. There is no fee, but registration is required due to space limitations. To register, contact Pam Hollenhorst, Associate Director, Institute for Legal Studies, at pshollen@wisc.edu Provide your name, contact information, and title or institutional affiliation.

Program (updated 11/14/06)

Friday, November 17, 2006 Lubar Commons (Law School room 7200)
10:00 Coffee and Registration

Welcome & Introductions

Heinz Klug
Director, Global Legal Studies Initiative

Guido Podesta
Director, Latin American, Caribbean and Iberian Studies Program

10:30-12:30 Panel 1: Judicialization and Legal Culture in Latin America: An Overview

Presenters:

Boaventura de Sousa Santos
University of Coimbra and University of Wisconsin Law School
"From Judicialization of Politics to Politicization of the Judiciary
in Latin America"

Javier Couso
Diego Portales University
"Tracing the Cultural Roots of the Judicialization of Politics in Latin America"

Discussant: Joseph Thome, University of Wisconsin Law School

12:30-2:00 Break for Lunch / Buffet lunch will be provided for all registered guests.

2:00-4:00 Panel 2: Argentina

Presenters:

Leigh Payne
University of Wisconsin
"The Politics and Judicialization of Speech in Argentina"

Catalina Smulovitz
Universidad Torcuato Di Tella
"Judicialization and Legal Mobilization in Argentina: A National Phenomenon?"

Discussant: David Trubek, University of Wisconsin Law School

4:00-4:15 Break

4:15-6:15 Panel 3: Chile and Guatemala

Presenters:

Alexandra V. Huneeus
Stanford University (2006-07) and University of Wisconsin (2007)
"Human Rights and Judicial Culture: The Case of Chile, 1998-2006"

Rachel Sieder
University of London
"Juridification in the Archipelago of (In)justice:
Hybrid Legal Spaces and Legal Culture(s) in Post-conflict Guatemala"

Discussant: Heinz Klug, University of Wisconsin Law School

6:15 Adjourn – Sessions resume Saturday morning at 8:30.

Saturday, November 18, 2006 Lubar Commons (Law School room 7200)
8:15 Coffee and Continental Breakfast
8:30 Call to Order and Introductions: Javier Couso

8:30-10:30 Panel 4: Colombia

Presenters:

Mauricio García-Villegas
Universidad Nacional de Colombia
"Pactist Constitutionalism in Colombia"

Pablo Rueda
University of California, Berkeley
"Judgement and Crisis: Social Rights' Adjudication in Colombia (1992-2004)"

Discussant: Stewart Macaulay, University of Wisconsin Law School

10:30-10:45 Break

10:45-12:00 Panel 5: Mexico

Presenter:

Dr. Héctor Fix-Fierro
National Autonomous University of Mexico (UNAM)
"Judicialization of Politics in Mexico: A Preliminary Assessment"

Discussant: John Ohnesorge, University of Wisconsin Law School

12:00 Closing Remarks: Alexandra Huneeus

Adjourn (end of public sessions)

Abstracts (as of 11/14/06)

Javier Couso

Professor of Law and Politics and Former Director of the Center of Socio-Legal Research Universidad Diego Portales, Santiago
2006 Tinker Visiting Distinguished Professor, University of Wisconsin Law School
javier.couso@udp.cl

"Tracing the Cultural Roots of the Judicialization of Politics in Latin America" The so-called process of judicialization of politics in Latin America has beenlinked to changes in the legal culture of the region over the last two to three decades, having been single out as both a cause and a consequence of the increased political role of the courts in the region. After critically analyzing the concept of legal culture, the paper explores the roots of the transformations in the legal culture of the most relevant actors of the process of judicialization of politics in the region, from changes in the training of legal elites, to transformations in conception of the role of law and courts within the political and social domains, due to developments at both the domestic and international level.

Héctor Fix-Fierro

Researcher, Instituto de Investigaciones Jurídicas, National Autonomous University of Mexico (UNAM)
hfix@servidor.unam.mx

"Judicialization of Politics in Mexico: A Preliminary Assessment" [pending]

Mauricio García-Villegas

Professor, Universidad Nacional de Colombia, Law School, Research Director Centro de Estudios de Derecho, Justicia y Sociedad
mvillegas@facstaff.wisc.edu

"Pactist Constitutionalism in Colombia" This essay attempts to show how the contractual constitutionalism adopted by the Latin American countries at the beginning of the XIXth century – once they got their independency from Spain – could not abolish the old colonial tradition of pactist constitutionalism. The pervasiveness of this tradition entails today a dichotomy between the written law and the legal practice. The current negotiation between the Colombian government and the paramilitaries is presented as an example of this dichotomy.

Alexandra V. Huneeus

Fellow, Center for Democracy, Development and the Rule of Law, Stanford University
ahuneeus@stanford.edu

"Human Rights and Judicial Culture: The Case of Chile, 1998-2006" My paper explores the link between judges' ideas about law and their actions in the resolution of cases of Pinochet-era abuses in Chile. I argue both that Chilean judicial culture encompasses various conceptions of the judicial role, and that actors deploy different conceptions in thoughtful response to external changes, sometimes in ways that cause change. The norms governing the judiciary, and the manner in which the Supreme Court justices interpret and enforce them, construct a role of deference. At certain junctures, however, a subset of judges were able to push forward and enact a more socially responsive conception of the judicial role. Thus, while most studies of the Chilean judiciary have portrayed its culture as monolithic, and judges as passive recipients of this culture, my data points us to the differing, competing views on judging that individual judges are trying to advance through structural openings. Understanding these dynamics can help us assess whether and how the judiciary will grow to be a publicly trusted player of importance within the Chilean democracy.

Leigh Payne

Professor of Political Science, University of Wisconsin-Madison
lpayne@polisci.wisc.edu

"The Politics and Judicialization of Speech in Argentina" This paper examines the use of Argentine courts to criminalize certain forms of speech about the dictatorship through the /apologia del delito/ law. The law paradoxically advances both the government's agenda of silencing the past and the human rights movement's agenda of condemning the past. The use of the law, thus, complicates our understanding of the judicialization of politics as either a "bottom up" process of expanding rights or a "top down" constraint on those rights. By applying the law (or not), the courts become a site of political struggle over interpretations of the dictatorship and the limits of free speech in democracy.

Pablo Rueda

LLB, Graduate Student, Jurisprudence & Social Policy Program, University of California, Berkeley
prueda@berkeley.edu

"Judgment and Crisis: Social Rights' Adjudication in Colombia (1992-2004)" Students of judicial politics argue that political interests and constraints determine judicial decisions while legal doctrine and discourse are largely epiphenomenal. Nowhere is this more evident than during times of economic or political crises. Law is usually seen as being too rigid and thus as an obstacle solve these crises. In turn, courts are too weak and they lack the institutional capacities and clout to assume an active political role during those times. However, although judicial activism during crises is exceptional and frequently punished, sometimes courts successfully assume an active political role. This is the case of the Colombian constitutional court, which during the economic crisis of the late 1990s called a wave of social rights' litigation that ultimately helped to transform congressional and executive discourse and policies. In this paper I explore the way in which the Colombian constitutional court changed its discourse on social rights and how these changes allowed the inclusion of new social groups that were being affected by the economic crisis. The transformations of legal discourse and the resulting expansion of social rights' litigation allowed the court to intervene more strongly and directly in policymaking, expanding its influence over political processes and outcomes.

Boaventura de Sousa Santos

Professor, University of Coimbra School of Economics, Portugal
Distinguished Scholar, Institute for Legal Studies, University of Wisconsin Law School
bsantos@ces.uc.pt

"From Judicialization of Politics to Politicization of the Judiciary in Latin America" In the last two decades, many social movements and NGOs have been taking the rule of law seriously, launching capacity building initiatives in the field of legal education and access to justice, thereby expanding the popular knowledge of law and justice, and challenging the State and powerful economic forces in national and international courts for violations of human rights. It is too early to evaluate the real success of such legal and judicial strategies, but such strategies have accomplished at least two things: a) they have made two contradictions socially visible: between law in books and law in action and between individual and collective claims; as a result, the judicial system has become a field of social and political contestation; b) they have had enough success to create a new realistic expectation that the judicial system could, under certain conditions, perform progressive roles and become, not only more accessible, but also more sensitive to the needs and aspirations of the popular classes, i. e. the vast majority of the population. This new judicial mobilization has made more visible and more intense the ideological or political divisions within the judiciary.

Rachel Sieder

Senior Lecturer in Politics at the Institute for the Study of the Americas, School of Advanced Studies, University of London
Rachel.Sieder@sas.ac.uk

"Juridification in the Archipelago of (In)justice: Hybrid Legal Spaces and Legal Culture(s) in Post-conflict Guatemala" This paper offers a reflection on a process of jurifidication (O'Donnell) rather than on one of judicialization of politics per se. In terms of the wider collective project, I hope that we can reflect not just on what lawyers, judges and courts are doing, but on the wider field of legal pluralism within which they operate. By considering more broadly the balance between actions before the courts and outside of them, I hope we can generate some preliminary hypotheses about "legal culture" in its "internal" and "external" variants, and about the nature of 'neo-liberal legality' in Latin America. The empirical focus of the paper is on what I call the "hybrid legal spaces" generated by indigenous people's interaction with law in post-conflict Guatemala.

Catalina Smulovitz

Director, Departamento de Ciencia Política y Estudios Internacionales, , Universidad Torcuato Di Tella, Argentina
smulovitz@utdt.edu

"Judicialization and Legal Mobilization in Argentina: A National Phenomenon?" Various authors indicate that, starting in 1983, a process of judicialization and juridification of politics and of social interactions took root in Argentina. While the literature has not questioned the existence of said phenomenon, we still do not know if the phenomenon is present in an homogenous way throughout the country, or if its existence and intensity varies at the sub-national level. The first objective of this work is to analyze if differences in the level and manner of judicialization and juridification exist between provinces, on the one hand, and between provinces and the federal level on the other hand. The second objective is to analyze the factors that explain these differences.

Biographical Statements for Workshop Participants

Javier Couso is Professor of Law and Politics, and former director of the Center of Socio-Legal Research, at Universidad Diego Portales in Santiago, Chile and the 2006 Tinker Visiting Professor at the University of Wisconsin. He holds a J.D. from Universidad Católica de Chile and a M.A. and Ph.D. from the Jurisprudence and Social Policy Program at the University of California, Berkeley. Professor Couso's research focus and publications concern the intersection of law, society and politics in Latin America.

Héctor Fix-Fierro is a full-time researcher at the Instituto de Investigaciones Juridicas of the National Autonomous University of Mexico (UNAM). He has been a visiting professor at the University of Houston Law Center and a visiting researcher at the University of Bremen, where he earned a Ph.D. in Law. He has published numerous articles about globalization, the legal profession, and judicial reform in Mexico, and is the author of Courts, Justice and Efficiency: A Socio-Legal Study of Economic Rationality in Adjudication (Hart Publishing, 2003).

Mauricio García-Villegas is a law professor at the Universidad Nacional in Bogotá, Colombia, and also Honorary Fellow of the Institute for Legal Studies at the University of Wisconsin-Madison. He received his Ph.D. from the University of Louvain-la-Neuve (Belgium) in 1994, has been visiting Professor at the University of Wisconsin-Madison (Tinker Visiting Professor) the Law School of the University of Grenoble the Group d'Analyse de Politiques publiques (GAPP) in Paris, and the International Institute for the Sociology of Law in Oñati. In 1994 he published La eficacia symbólica del derecho (the symbolic efficacy of law) and recently, a reader on comparative sociology of law (Sociología jurídical), and with Professor Boaventura de Sousa Santos, the two volume book titled El caleidoscopio de las Justicias en Colombia. This year he published the article: "Comparative Sociology of Law. Legal Fields, Legal Scholarship, and Social Sciences in Europe and United States," (Law and Social Inquiry, spring 2006, pp. 343-346) and Justicia para todos?, sistema judicial, derechos socials y democracia en Colombia with Rodrigo Uprimny y Cesar Rodriguez, (Bogota: Norma).

Alexandra Huneeus is a post-doctoral fellow doctoral at the Center on Democracy, Development and the Rule of Law, at Stanford University. Her dissertation is entitled The Dynamics of Judicial Passivity: Chilean Court Deference in an Age of Judicial Power. She earned a J.D. from Boalt Hall in 2001 and was a visiting scholar at Universidad Diego Portales in Santiago in 2003-03. Huneeus was an instructor at Boalt Hall School of Law in 2003 and 2004 and was a Fellow at the Kadish Center for Morality, Law and Public Affairs in 2004-05. She received a University Dissertation-Year Fellowship for 2005-06, and will join the legal studies faculty at the University of Wisconsin in 2007.

Heinz Klug is Professor of Law, H.I. Romnes Faculty Fellow, and Director of the Global Legal Studies Initiative at the University of Wisconsin. He has taught law at the University of the Witwatersrand in Johannesburg and has worked with the South African Ministry of Water Affairs and Forestry as well as the Ministry of Land Affairs on water law and land tenure issues. Professor Klug served on the secretariat and was a staff member of the African National Congress Land Commission. He was also a team member on the World Bank mission to South Africa on Land Reform and Rural Restructuring. Professor Klug has presented lectures and papers on the South African constitution, land reform, and water law, among other topics, in Canada, Scotland, Ethiopia, South Africa, Colombia, at The Hague, and at several U.S. law schools.

Stewart Macaulay is the Malcolm Pitman Sharp Professor and Theodore W. Brazeau Professor at the University of Wisconsin Law School. He is internationally recognized as a leader of the law-in-action approach to contracts. Professor Macaulay served as Director of the Chile Law Program of the International Legal Center in Santiago during 1970 and 1971. He has written extensively on subjects ranging from lawyers and consumer law to private government and legal pluralism. Macaulay, who teaches Contracts I & II and Sociology of Law, was President of the Law and Society Association from 1985-87, and was awarded LSA's Harry Kalven Prize in 1995. He received the Outstanding Scholar Award, from Fellows of the American Bar Foundation in 2004, and he is a fellow of the American Academy of Arts and Sciences.

John Ohnesorge is Assistant Professor of Law and Assistant Director of the East Asian Legal Studies Center at the University of Wisconsin Law School. He is a graduate of St. Olaf College (B.A., '85), the University of Minnesota Law School (J.D., '89), and Harvard Law School (S.J.D., 2001). Professor Ohnesorge has taught and studied law in Shanghai, and practiced law for several years in Seoul. He teaches courses on U.S. corporate and administrative law, as well as seminars on Asian law, and on law and economic development.

Leigh Payne is Professor of Political Science at the University of Wisconsin-Madison. She is the author of the forthcoming book Unsettling Accounts: Public Confessions by Perpetrators of Authoritarian State Violence (Duke University Press). Professor Payne co-edited the recently published Art of Truthtelling about Authoritarian Rule (University of Wisconsin Press, 2005). She also wrote Uncivil Movements: The Armed Right Wing and Democracy in Latin America (Johns Hopkins University Press, 2000) and Brazilian Industrialists and Democratic Change (Johns Hopkins University Press, 1994). She is the co-editor of Business and Democracy in Latin America (University of Pittsburgh Press, 1995). Professor Payne has also published various chapters and articles on democracy and legacies of authoritarian rule. The MacArthur Foundation, the Social Science Research Council, the Ford Foundation, the Fulbright Commission, the Inter-American Foundation, and the University of Wisconsin-Madison have all supported her research.

Guido Podesta is Professor and former chair of the Department of Spanish and Portuguese Studies. He also serves as Director of the Latin American, Caribbean and Iberian Studies Program (LACIS) at the University of Wisconsin.

Pablo Rueda holds an LLB. from Los Andes University, Colombia and is currently a Ph.D. student at the Jurisprudence and Social Policy Program, University of California, Berkeley. Before his arrival at U.C. Berkeley, Rueda was assistant professor at the department of political science, El Rosario University. He has also been a law clerk at the Colombian Constitutional Court, a lecturer at Los Andes University law school, and a researcher at the Centro de Investigaciones Sociojuridicas (Center for Socio-legal Research) and at the Centro de Estudios Internacionales (Center for International Studies), both at Los Andes University. He has published various publications on the topics of courts, social rights, constitutional and international law, and international relations theory.

Boaventura de Sousa Santos is a full professor at the University of Coimbra, School of Economics, Department of Sociology, in Portugal and a Distinguished Scholar of the Institute for Legal Studies at the University of Wisconsin Law School in Madison. He has published prolifically on issues related to law and globalization, legal pluralism, multiculturalism and human rights and has taught at law schools and graduate programs in Brazil, England, Mexico, Argentina, Colombia, Angola, Mozambique and Spain, in addition to his current Coimbra, Portugal and Madison posts. His most recent book, co-edited with Cesar Rodriguez-Garavito, is Law and Globalization from Below: Towards a Cosmopolitan Legality (Cambridge University Press, 2005).

Rachel Sieder is Senior Lecturer in Politics at the Institute for the Study of the Americas, School of Advanced Studies, University of London, where she teaches courses on human rights, comparative politics and globalisation in Latin America. She has been a visiting research fellow at FLACSO Guatemala and CIESAS Mexico City. Sieder has published articles in numerous journals, including Democratization, The Bulletin of Latin American Research, and Citizenship Studies. Her most recent edited volumes are (with Pilar Domingo), Promoting the Rule of Law: Perspectives on Latin America (Institute of Latin American Studies, 2001), Multiculturalism in Latin America: Indigenous Rights, Diversity and Democracy (Palgrave, 2002), and (with Line Schjolden and Alan Angell), The Judicialization of Politics in Latin America (Palgrave, 2005). She is currently editor of the Journal of Latin American Studies.

Catalina Silvia Smulovitz is Director of the Department of Political Science and International Relations at the Universidad Torcuato Di Tella in Buenos Aires. She holds a Ph.D. and M.A. in political science from The Pennsylvania State University. In 1999 shw was a visiting research professor at the Institute of Latin American Studies, University of London. Prior to that time she was an associate researcher at the Consejo Nacional de Investiga-ciones Científicas y Tecnológicas (CONICET). Professor Smulovitz is the author of numerous articles about law, politics, and democracy in Argentina. She is the co-editor of Enforcing the Rule of Law : Social Accountability in the New Latin American (with Enrique Peruzzotti) (Pittsburgh University Press, forthcoming 2006).

Joseph Thome is Professor Emeritus at the University of Wisconsin Law School. His research and teaching focuses on the processes of legal reform in Latin America and on legal issues of social and economic change in Latin America and Africa. He has served as a consultant for the World Bank in Equatorial Guinea and for the U.S. Agency for International Development to evaluate its projects across Latin America. He has lectured and consulted on land tenure issues in South Africa. Professor Thome has also conducted research on land tenure and legal issues in Chile, Equatorial Guinea, Honduras, Panama, Spain, Brazil, and Colombia, as well as holding visiting professorships at the Catholic University Law School and Diego Portales University Law School, both in Chile. He teaches Comparative Law, seminars related to legal change in Latin America, and Contracts I and II.

David M. Trubek is Voss-Bascom Professor of Law Emeritus and Senior Fellow of the Center for World Affairs and the Global Economy at the University of Wisconsin-Madison. His main interests are in socio-legal studies and global political economy. He has written on law and development, the legal profession, civil litigation, EU law and policy, new governance, critical legal studies, transnational regulation, and social theory. Professor Trubek has helped develop and manage numerous academic projects and institutions in law and international studies. He has been active in the Law and Society Association and was a founder of the Conference on Critical Legal Studies. He was the founding Director of the UW-Law School's Institute for Legal Studies and from 1989-2001 served as the UW-Madison's Dean of International Studies and Director of the International Institute. Trubek has taught at Yale and Harvard Law Schools and the Catholic University Law School of Rio de Janeiro and been Visiting Scholar in Residence at the European University Institute, the Maison des Sciences de l'Homme, the London School of Economics, the Harvard Center for European Studies, and the Joaquim Nabucco Foundation in Recife, Brazil. His most recent edited books are The New Law and Economic Development: A Critical Appraisal (with A. Santos) (Cambridge 2006) and Max Weber's Economy and Society: A Critical Companion (with Camic and Gorski) (Stanford 2005).

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