Judicial Reform and Independence in Brazil and Argentina: The Beginning of a New Millennium?

Abstract

I. INTRODUCTION Many well-known studies of judicial independence in Latin America make what might be called monolithic and millenarian arguments. Keith Rosenn, for example, argues that all of Latin America suffers from a fairly permanent lack of judicial independence: sad reality that citadel of judicial independence has been perennially besieged in Latin America.1 Moreover, explanations he puts forth for this observation are-in keeping with diagnosis-equally monolithic and millenarian. He attributes this perceived shortcoming in part to universal and longstanding regional features: Latin America, he says, is heir to civil law of weak judges, and has a culture and political tradition [that] are heavily authoritarian.2 He does, however, carve out an exception for Costa Rica.3 Such a diagnosis makes any hope of changing situation seem remote at best, as Rosenn himself acknowledges: [bjecause [Costa Rica's] conditions are not readily replicable in most of Latin America, path to judicial independence likely to continue to be slow and tortuous.4 Clearly, judicial independence has long eluded many of countries of region, and we should not present an overly rosy picture of state of judicial independence in region or underestimate challenges faced by Latin American judiciaries. At same time, it important to recognize that judicial performance across region neither monolithic nor millenarian. There a great deal of variation that scholars ignore at their peril. Indeed, ignoring variation leads to misdiagnoses of potential causes: all countries of region, including Costa Rica, are to one degree or another heirs to civil law and yet they display very different levels of independence.5 The three countries with most independent judiciaries-Uruguay, Costa Rica, and Chile-share some features to be sure, but Uruguay most secular of all countries of region, Chile among most traditionalist Catholic countries of region, and Costa Rica falls somewhere between these two extremes. Surely this poses some problems for Rosenn's account that we can trace roots of a lack of independence back to the hierarchical structure of Catholic church.6 In contrast to overly uniform empirical diagnoses, however, more theoretical work on topic shows altogether too much variation. Given proliferation of definitions of independence used by various scholars, if there any surprise in literature it that everyone agrees that, whatever independence might be, Latin America does not have it. In this article, I seek to bring some clarity to conceptual thicket by cutting through many of these disagreements, and some nuance to empirical arena by exploring some recent political and institutional developments that could affect judicial independence in Argentina and Brazil. The first section will explore concept of judicial independence and put forth some basic distinctions that capture what most scholars (and citizens) seem to be reaching for in their definitions of judicial independence. The second will offer a general theory of causal mechanisms giving rise to levels of judicial independence. The third will describe connection between institutional mechanisms and judicial autonomy as defined in first two sections. Finally, fourth section will explore recent changes in Brazil and Argentina, with a view to predicting their potential impact on judicial autonomy in these two countries in new millennium. II. DEFINING JUDICIAL INDEPENDENCE There are nearly as many definitions and taxonomies of judicial independence as authors writing about subject. Owen Fiss, for example, classifies notion[s] of independence according to entity judges are (or are not) independent from parties to dispute, judges, or other governmental institutions that may or may not be parties. …