CRAFTING COURTS IN NEW DEMOCRACIES: THE POLITICS OF SUBNATIONAL JUDICIAL REFORM IN BRAZIL AND MEXICO, by Matthew C. Ingram. New York: Cambridge University Press, 2016. 392pp. Hardback $110.00. ISBN: 9781107117327.
Reviewed by Lisa Hilbink, Department of Political Science, University of Minnesota. Email: hilbink@umn.edu.
Scholars of law and courts in the United States often take for granted the institutional integrity and independence of the judicial branch. Some focus on how to maintain judicial independence in the face of perceived or potential threats, and others fret about independent/unaccountable judges having too great a role in deciding fundamental policy issues, but the question of where strong and independent judicial institutions come from is mostly ignored or left to historians. For those who work on new (or renewed) democracies, by contrast, the question of how to construct (or reconstruct) stable, independent judiciaries is of fundamental concern, not just for scholars, but for citizens of those countries seeking to hold public and private actors accountable for legal violations. With Crafting Courts in New Democracies, Matthew Ingram offers an innovative and compelling contribution to this important line of research.
Drawing on both quantitative and qualitative evidence from the subnational (state) level in two major federal countries, Brazil and Mexico, Ingram argues that the key to effective judicial reform is the presence of leaders in both the political and judicial spheres that share “nonmaterial, principled, programmatic commitments about the proper role of courts in democratic societies” (p. 3). These ideational commitments may be primarily political or economic in nature; however, while neoliberal economic ideas have sometimes motivated judicial reform, Ingram finds that the most robust reforms are driven by actors with left-liberal commitments to expanding democratic citizenship. Moreover, he highlights the role of judges themselves in persuading sympathetic politicians to propose and follow through with court-enhancing policies.
In making this argument, Ingram directly challenges dominant theories of judicial empowerment, which, though varying in their specific causal logics, are united in viewing reforms for more independent and effective courts as a strategic response by politicians to the uncertainty produced by electoral competition. These rational-strategic accounts assume that, out of material self-interest, politicians facing electoral competition will pursue judicial reforms as a means either of retaining or attaining office, or of preserving their policy preferences should they lose office. Ingram contends that such theories do not reliably account for the timing and content of court strengthening reforms, and can neither explain their absence where electoral uncertainty abounds nor their presence where they entail costly behavior on the part of political leaders. Absent ideational motivations, Ingram argues, electoral incentives are insufficient to drive reform.
Ingram develops this argument in eight chapters. After providing an introduction to and overview of the research question and argument in Chapter 1, he devotes Chapter 2 to the theoretical framework and competing arguments on judicial reform in the literature. Chapter 3 explains and justified the methods used in the empirical analysis, and provides basic background information on the six state-level case studies (three Mexican, three Brazilian). Chapter 4 offers a time-series, cross-section analysis of judicial spending (the dependent variable) across thirty-two Mexican states from 1993 to 2009. Chapter 5 does the same for twenty-seven Brazilian states between 1985 and 2007. With some caveats, these two chapters taken together demonstrate that, in both countries, electoral competition has mixed effects, and state governments on the political [*158] left “exert the most meaningful positive influence on judicial empowerment” (p. 53). Chapters 6 and 7, on Mexico and Brazil respectively, supplement the quantitative analysis by identifying a “well-predicted” state in each country and selected two other states on a “most similar” small-N research design. Based on 50-60 elite interviews in each country, as well as archival analysis, Ingram provides qualitative evidence to support the argument that “principled-ideological factors shape reform” (p. 53) and that politicians and judges on the political left are those behind the most robust judicial improvements. In the final chapter, Ingram lays out some “boundary conditions” and “interactions” that affect which parties press for judicial reform after transition to democracy. Even with these caveats, he is able to conclude that “programmatic commitments exert a meaningful and identifiable effect on the strength of state courts” (p. 281).
Crafting Courts in New Democracies has much to commend it. The rigor and thoroughness of Ingram’s research and analysis, on both the quantitative and qualitative fronts, are truly impressive, and the organization and exposition of the analysis are superb. The book, which grew out of Ingram’s dissertation, is a wonderful, if perhaps intimidating, model of multi-method research for graduate students and more established scholars alike. The book is also a great example of the value of subnational comparative research, particularly for the study of judicial politics. As Ingram notes (p. 2), the vast majority of cases are tried in such courts, meaning that it is here where most citizens—if they have contact with the courts at all—experience the justice system. To the extent that we strive to build generalizable theories on the politics of law and courts, then, we would do well to move “down and out” from national high courts, and Ingram provides an inspiring research design for those sharing this theoretical ambition. Additionally, the book makes a strong case for both the importance and the viability of studying the causal role of ideas. Ingram helpfully lays out several empirical implications that flow from any hypothesis that treats programmatic commitments as an independent variable, including the pursuit of similar policies and similar choices by actors who hold a programmatic commitment even when material incentives or environmental context changes; the pursuit of different policies by actors with different programmatic commitments despite the same or similar environmental context; and, in pursuit of a programmatic commitment, behaving in ways that are materially risky or costly. This gives the reader clear criteria to look for in the analysis and Ingram usefully highlights these in the qualitative chapters.
Of course, such ambitious and innovative research (multi-method, subnational in two countries, taking on an often intractable independent variable) inevitably runs up against challenges and limitations. As comparativists know well, concepts and measures are not always applicable across units, and this problem is arguably complicated when researchers combine subnational and cross-national research, as Ingram does. Moreover, what one can measure/assess in quantitative versus qualitative analysis is different, and it is not always obvious that a quantitative measure is a good proxy for a thicker, qualitative concept. For example, Ingram defines the dependent variable of the study as institutional reforms for “court strength,” which, in his words, consists of independence, efficiency, and accessibility. At one point, he states that the kind of reforms he seeks to explain are those that “expand the formal scope and depth of rights and the real, informal effectiveness of these rights” (p. 45). In the large-N analysis, he operationalizes the DV as increases to the judicial budget, which, while not entirely satisfying, makes sense for quantitative purposes (he justifies the choice well on pp. 141-143). In the qualitative analysis on Mexico (p. 199), in addition to judicial spending, he evaluates institutional design and career structure, which puts a bit more meat on the DV bones, but when he gets to Brazil (p. 232), he falls back on almost purely quantitative measures of spending, personnel per capita and physical infrastructure. It is unclear that these translate to independence, efficiency, and accessibility, much less to the real effectiveness of rights. Not only does quantity not necessarily translate to quality (and presumably strong courts are quality courts), but as Martin Shapiro [*159] (1981) reminds us, courts also serve as instruments of social control, so their mere extension into territory does not necessarily indicate they are intended to or capable of bringing rights protection to those they reach.
Ingram runs into similar difficulties with his main independent variable, programmatic commitments. For the quantitative analysis, he uses a measure of party ideology as a proxy for programmatic commitments, and while this produces a clear result in Mexico, it does not work as expected in Brazil. Ingram thus resorts to quite a bit of post-hoc adjustment to the argument, concluding that “Ideology matters, but it is conditioned by
opposition to the authoritarian regime,” as well as level of party institutionalization, the existing level of court strength, the timing of the arrival of the leftist party in office, or the sequence of reform efforts (p. 260). This weakens the persuasiveness of the argument, perhaps unnecessarily. My sense is that if Ingram had not felt compelled to construct an argument that was testable through quantitative analysis, he might not have gotten boxed in to the “left, center, right” schema that made it impossible to capture the variation of ideological commitments within parties, such as liberal technocrats vs. clientelistic “dinosaurs” in the Mexican PRI, or tensions in the Brazilian PT between left-liberal and more Marxist, socialist, or participatory-democratic sectors (or moments). This might have freed him up from having to provide post-hoc explanations or place multiple scope conditions on his argument.
One underdeveloped point in the book is the role of friendship or personal ties in facilitating cooperation between judges and politicians around court strengthening. On p. 271, Ingram states that friendship and programmatic commitments had a “complementary causal prominence” in both Rio Grande do Sul and Acre (two Brazilian states), but notes that friendship alone would not be enough to produce reform, absent the shared programmatic commitment thereto. This raises a question: how necessary are personal relationships between reformers to their success, at a variety of stages, and how could or should one go about studying this? It is clear both in this book (in the accounts of reform in accounts of Michoacán (Mexico) and Marañao (Brazil)), as well as in some of his other work, that Ingram is interested in how ideas/programmatic commitments are transmitted, but in the end, is it the personal bonds between actors that enables any given set of ideas to be translated into policies?
To sum up, CRAFTING COURTS IN NEW DEMOCRACIES is an admirable work constructed around the highest standards of political science research. Rather than shy away from the challenges posed by applying those standards across a diverse and complex set of cases, Matthew Ingram takes them head-on, and in so doing, blazes a trail for others who might otherwise deem any piece of the effort (dual sub-national research design, multi-methods, or theorizing about ideas) too daunting. The analysis is not flawless, but it provides ample evidence that judicial reform is not a simple or automatic strategic response by politicians to increased electoral competition and uncertainty. Ideas, in the form of sincere, principled convictions, matter to leaders’ willingness to pursue reforms that enhance the independence, efficiency, and accessibility of the judicial branch. The question now may be whether the strengthened courts produced in some places over the past several decades can survive what appears to be a global backlash against the very ideas that created them.
REFERENCES:
Sharpio, Martin M. 1981. COURTS: A COMPARATIVE AND POLITICAL ANALYSIS. Chicago: University of Chicago Press, 1981
© Copyright 2016 by author, Lisa Hilbank.
