https://biblioteca.cejamericas.org/handle/123456789/33 2026-04-06T19:39:50Z 2026-04-06T19:39:50Z Carlo Guarnieri and Daniela Piana https://biblioteca.cejamericas.org/handle/2015/397 2016-03-30T04:10:43Z

Which Independence for the Rule of Law? Lessons from Europe Carlo Guarnieri and Daniela Piana Reseña:The rule of law is increasingly considered to be a necessary condition for the development of a market economy and a successful democracy. The creation of a stable institutional setting, the introduction of transparent, well-formulated and predictable legal norms, the establishment of a system of checks and balances restraining the exercise of political power, have all been the preferred target of policies promoted by international organizations. In this context, an independent judicial system has emerged as one of the pillars of the rule of law. Independent judges – and, as we are going to see, also independent prosecutors – have been increasingly considered fundamental in order to establish and implement a system of fair rules.However, the concept of courts’ independence is not always well defined, often referring to related but different phenomena. Moreover, to a more careful consideration, the relationship between independence and rule of law seems more complex than expected. The case of Europe – where, in recent decades, significant reforms have been implemented in the realm of the administration of justice - is a good case in point. In Western Europe the relationship between courts’ independence and the rule of law is not always clear, maybe thanks to different institutional traditions. The new Eastern and Central European states can provide important insights in the matter, thanks to their relative common institutional development: a long period of communist rule and a transition to democracy which is still in the process of consolidation.The analysis carried out in this paper, although still incomplete, suggests not only that the concept of courts’ independence needs a better definition, but that its main dimensions should be taken into account for their different impact: while the external gradient of independence seems to play a positive role for the development of the rule of law, the contribution of internal independence is more ambiguous.The rule of law is increasingly considered to be a necessary condition for the development of a market economy and a successful democracy. The creation of a stable institutional setting, the introduction of transparent, well-formulated and predictable legal norms, the establishment of a system of checks and balances restraining the exercise of political power, have all been the preferred target of policies promoted by international organizations. In this context, an independent judicial system has emerged as one of the pillars of the rule of law. Independent judges – and, as we are going to see, also independent prosecutors – have been increasingly considered fundamental in order to establish and implement a system of fair rules.However, the concept of courts’ independence is not always well defined, often referring to related but different phenomena. Moreover, to a more careful consideration, the relationship between independence and rule of law seems more complex than expected. The case of Europe – where, in recent decades, significant reforms have been implemented in the realm of the administration of justice - is a good case in point. In Western Europe the relationship between courts’ independence and the rule of law is not always clear, maybe thanks to different institutional traditions. The new Eastern and Central European states can provide important insights in the matter, thanks to their relative common institutional development: a long period of communist rule and a transition to democracy which is still in the process of consolidation.The analysis carried out in this paper, although still incomplete, suggests not only that the concept of courts’ independence needs a better definition, but that its main dimensions should be taken into account for their different impact: while the external gradient of independence seems to play a positive role for the development of the rule of law, the contribution of internal independence is more ambiguous.

Philip Oxhorn https://biblioteca.cejamericas.org/handle/2015/395 2016-03-30T04:07:18Z

When Democracy Isn’t All That Democratic: Social Exclusion and the Limits of the Public Sphere Philip Oxhorn This paper argues that many of the challenges faced by Latin American democracies today and the long term implications of those challenges for democratic stability in the region can be usefully understood in terms of their impact on the public sphere. The first section develops a theoretical framework for understanding the public sphere as the nexus between civil society and the state. The second section then examines the nature of the public sphere in Latin America and the ways in which large segments of the population are effectively marginalized from actively participating in it. More specifically, the narrowness of the public sphere is discussed in terms of two inter-related dimensions: the dominant mode of interest intermediation, what I call neopluralism, and the growing gap between the general population and the political elite. The section concludes with a case study of Chile after the return of democratic government in 1990. The final section of the paper briefly discusses the need to fill the growing public void in Latin America and some possible steps to take.

Andrea Pozas Loyo and Julio Ríos Figueroa https://biblioteca.cejamericas.org/handle/2015/394 2016-03-30T04:06:41Z

When and Why “Law” and “Reality” Coincide? De Jure and De Facto Judicial Independence in Mexico, Arg Andrea Pozas Loyo and Julio Ríos Figueroa Our central question is: Under what circumstances can we expect a theoretically informed and reproducible measure of judicial independence de jure to be a good proxy for what we can expect to happen in reality? We argue that whether the de jure measure can be considered a good proxy for, to overestimate or to underestimate, judicial independence in reality depends on the distribution of power among the ruling political groups. Having identified those political conditions, and what Supreme Court judges can expect from them, we explore what is the likely behavior of these judges regarding decisions on cases where the government violates the rule of law or horizontal accountability. Having laid out our theoretical expectations in six different scenarios, we proceed to illustrate them using Mexico Argentina, and Chile.

Andrew Nickson https://biblioteca.cejamericas.org/handle/2015/396 2016-03-30T04:10:48Z

Where is Local Government Going in Latin America? A Comparative Perspective Andrew Nickson In light of the decentralization process now under way in Latin America, this paper seeks to address the direction of local government in the region. It proposes two Weberian ideal types of local government systems— ‘managerial’ and ‘governmental’. Ten basic features of local government systems are then used as a template to ‘situate’ Latin American local government within this typology. On the basis of this comparative framework, the paper tentatively concludes that the ‘managerial’ type of local government is gaining ground in the region.