| dc.description.abstract |
The criteria for the existence of the rule of law include abstract, universal legal norms; limited government that itself is subject to law; constitutionally guaranteed rights; and an independent judiciary with powers of constitutional review. Owing to the region’s particular development path, no Latin American country has fully institutionalized the rule of law. Recent efforts at reforming legal and judicial systems have failed because they take no account of the corporative nature of Latin American social structures, particularly as regards the magistracy and the bar (as well as the other learned professions). Judges, like other professionals, are bound together, and separated from the rest of society, by particular affective and value-based solidarities that play a major role in their social identification, interest definitions, and forms of action; all these have been institutionalized in the form of a “judicial culture’ that highly values the magistracy’s corporate autonomy (not the same thing as judicial independence) and resists any “external interference” even when its objectives seem favorable to judges’ own self-interest. This implies that reform will be an incremental process; that it may depend on the arrival of new people with “mentalities” unaffected by membership in the existing corporative solidarity networks; and that it may register more advances more quickly in the new judicial institutions than in existing ones. I examine these propositions in the light of the experience of INDECOPI, Peru’s quasi-judicial administrative agency responsible for market regulation. I consider the implications of its experiences for broader judicial reforms in Peru. |
