The Limits of Judicialization. From Progress to Backlash in Latin America

Blogpost by Juliana Jaramillo

A new book to reflect upon the promises, pitfalls, and lessons of judicialization:

The publication of The Limits of Judicialization. From Progress to Backlash in Latin America (Cambridge University Press, 2022) offers an excellent opportunity to reflect on the core topic of LawTransform’s work since the inception of the Centre—the role of law and courts as instruments of social change. Edited by Sandra Botero, Daniel M. Brinks, and Ezequiel A. González-Ocantos, the book brings together an interdisciplinary group of 20 scholars to reflect on the promises and pitfalls of judicialization. You can watch the video from the pre-launch of the book at this year’s Bergen Exchanges.

The book focuses on Latin America, which was one of the first regions to enthusiastically adopt a model of doing politics through the use of law and the courts—what is known as the judicialization of politics. Towards the 1980s, as a result of the democratization processes that took place in the region, courts began to emerge as key actors in the expansion and enforcement of rights, the resolution of policy disputes, and the control of abuses of power. During that time, different Latin-American countries established what the editors call a “judicialization superstructure”—a combination of formal institutional and elite cultural changes—that turned the courts into an institutional arena more open to addressing the claims of individuals and social movements for greater inclusion, equality, and justice.

Through its 13 chapters, the book illustrates some of the most challenging and ambitious demands brought to Latin-America’s domestic courts. Three of the chapters focus on the legal mobilization for abortion rights, analysing five countries: Peru, Argentina, Colombia, Brazil, and Mexico (Gianella; Ruibal; Forero & Rodríguez). Two chapters address the attempts of judges and human rights organizations to overcome impunity and ensure the prosecution and accountability of state- and business actors implicated in human rights violations in Mexico (Gallagher & Contesse) and Colombia (Bernal), while five chapters focus on the courts’ attempts to prosecute the authorities and political elites responsible for major corruption cases in Guatemala (Bowen), Peru (Baraybar & González-Ocantos), and Brazil (Da Ros & Taylor; Mota Prado & Rodríguez Machado; Bastos dos Santos & Solano Gallego).

Through these complex cases the book reflects on the possibilities and limits of judicialization in the region. To what extent have the courts been able to respond to the expectations placed on them? After four decades of experimenting with judicial politics, what are the outcomes? 

At the outset, the book’s title suggests pessimism in the aftermath of the judicialization experiment. Although several courts have recognized rights of minorities, and here and there courts have initiated trials against aberrant cases of corruption and human rights violations, the limitations of these attempts at legal reform and accountability are evident. In many cases rights are not enforced, impunity and violence persist, and abuses of power continue to pervert political life in the region. To explain these shortcomings, the authors draw attention to two main causes: the weakness of state institutions to enforce the legal reforms requested by the courts and the absence of a broad social base capable of pushing for the implementation of these reforms. 

But despite the book’s emphasis on the limits of judicialization, and on the pitfalls rather than the achievements, the final call is not to abandon judicialization as a way of doing politics—as other scholars have suggested. After all, the editors argue, judicialization is here to stay as part of our global political landscape. Rather than proposing the abandonment of the courts as instruments of social change, the book seeks to affirm the possibility of moving toward a more effective judicialization—a judicialization that is more strategic and at the same time more committed to the values of a democratic project. As the editors assert, “we choose to focus on what is not working properly as an opportunity to shed light on what can be adjusted going forward” (p. 5).

In sum, besides offering an account of the unfulfilled promises of judicialization and providing a solid analysis of the factors explaining its limitations, the book also, and very importantly, offers a series of lessons and insights to adjust what is not working so well in order to move forward: not “from progress to backlash” but the other way around —from backlash to progress. In these lessons and insights we can find one of the most valuable contributions of the book. A contribution that is highly relevant for Latin-American scholars and practitioners, but also for those researching and working with courts in other regions of the world; from academics and lawyers to judges and activists interested in empowering the courts as an arena for social transformation. After four decades of judicialization, the book’s overview of the Latin American experience is undoubtedly enlightening for regions with a shorter history of resorting to law and courts to advance the promises of democracy.

You can watch the video of the book launch with the editors during the Bergen Exchanges 2022 here




Photo credits: Tingey Injury Law Firm via Unsplash