Vol. 28 No. 7 (December 2018) pp. 102-104THE ACHILLES HEEL OF DEMOCRACY: JUDICIAL AUTONOMY AND THE RULE OF LAW IN CENTRAL AMERICA, by Rachel Bowen. Cambridge University Press, 2017. 292pp. ISBN 978-1-107-17832-8.
Reviewed by Lydia Tiede and Susan Achury, Department of Political Science, University of Houston. Emails: lbtiede@uh.edu and susan.achury@gmail.com.
Rachel Bowen’s THE ACHILLES HEEL OF DEMOCRACY: JUDICIAL AUTONOMY AND THE RULE OF LAW IN CENTRAL AMERICA re-conceptualizes our understandings of the threats to judicial independence that judges and courts encounter in weak states. While much of the extant literature on courts worldwide focuses on their independence from political actors, Bowen offers a fascinating look at how societal actors can both promote and undermine the institutional and decisional independence of courts. She also offers a comparison of five understudied judiciaries in Central America found in Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua, all but one of which has emerged from repressive rule, civil violence, and foreign interference. By analyzing courts and other legal actors in these countries, she shows how judicial power evolves over time to confront criminality, violence, and corruption as well as to confront the more often studied encroachments from strong executives and legislators. Bowen’s book includes information from extensive interviews and detailed accounts of how judiciaries and other actors in Central America navigated complex environments in the period from 1979 to 2015.
Bowen asks “how weak democracies can build courts and other justice sector institutions that can exercise autonomous power and contribute to building the rule of law” (p. 10), defined as “a system in which power is exercised through democratically enacted formal laws applicable to all equally and checked by formal accountability institutions” (p. 223). To answer this question, Bowen asserts in the first chapter that courts are more effective in building the rule of law if they are both independent from political actors and autonomous from societal actors, including criminals, businessmen, and others who have the means to corrupt the judicial policy-making process. Bowen makes a significant contribution by focusing our attention on societal autonomy which allows judges in weak states to give “practical effect” to law without “threats from violent actors and enticements from their wealthy counterparts” (p. 2). While political independence allows courts to act against public officials who have overstepped their power, societal autonomy allows courts to prosecute a variety of actors for crimes which undermine citizen security and highlight state weakness.
Bowen uses both political independence and societal autonomy to create a useful topology of four judicial regime types. A liberal judicial regime (defined by moderate to high levels of political independence and societal autonomy) is best placed to build the rule of law and is exemplified in Costa Rica since 1989 (Chapter 3). In stark contrast, the government control judicial regime lacks both political independence and societal autonomy and exists within authoritarian contexts existing in Guatemala, Honduras, El Salvador, and Nicaragua in the 1970s and 1980s (Chapter 4). In line with other scholars who analyze the rule of law in authoritarian contexts (see Moustafa and Ginsburg 2008), Bowen analyzes a wide variety of responses from judicial and other actors operating within this judicial regime type as countries transition from authoritarian to hybrid regimes and then to unconsolidated democracies.
A clandestine control judicial regime has high political independence, but limited or no autonomy from societal actors and thus is plagued by corruption. While this type of [*103] judicial regime may support democratic development, it is often stymied by threats from the private sector. Guatemala from 1986-2002, presented in Chapter 5, provides the best example of a clandestine control judicial regime because despite the signing of peace accords in 1996, the country’s movement toward democracy coincided with an increase of organized crime, violence and insecurity – a useful reminder about how difficult it is to establish the rule of law after conflict.
Finally, the partisan control judicial regime (marked by low levels of political independence, but moderate to high levels of societal autonomy), is exemplified by the judiciaries of El Salvador, Honduras and Nicaragua since the post-revolutionary period (see Chapter 6). Bowen warns that such judicial regimes may destabilize law as current judges with strong party affiliations are likely to displace decisions by judges from an earlier era. She also asserts, however, that in some circumstances, partisan judiciaries spanning several governments may “build respect for the law” and institutionalize “democratic politics” (p. 226). Bowen suggests that partisan regimes arise as a result of certain judicial appointment mechanisms coupled with short tenures. However, her institutional explanation is weakened somewhat by an acknowledgement that politicians of opposing parties have manipulated selection rules to serve their own purposes, often agreeing to share or alternate the selection of justices with different political affiliations. Further, while Bowen argues that partisan or attitudinal voting may undermine the impartiality of judges and courts, she does not provide sufficient empirical data across cases, judges, or time to allow us to evaluate the extent of this claim in all but the most sensational cases, which she describes in detail.
Bowen is careful to explain that while her judicial regime types provide significant leverage to answer whether courts can build the rule of law in any given country, they are indeed ideal types. Her categorization does much to explain how law and courts evolve over time especially within relatively weak states. For Bowen, judicial evolution occurs due to the “push and pull of reform and resistance” (p. 68). In the final chapter and throughout the book, Bowen also explains that thirty years of reform since “third wave” democratizations have often failed because they do not address societal violence and corruption. Reforms also have failed because they are “incremental” and “layered” on top of existing institutions (p. 235). In other words, both domestic and international reformers undertake modest reforms of old institutions without bothering to change their structure and personnel.
Bowen’s selection of cases allows her to control for several factors including civil law legal systems, culture, and geography. One drawback of this selection method, however, is that her one example of a liberal judicial regime (i.e. the one most likely to build the democratic rule of law), is found in Costa Rica. This country differs from the remaining four countries on several factors (including history of repression, timing of democratic transition, levels of violence and economic underdevelopment) making it difficult to isolate the causes for its success or use it as a valid comparison to the remaining judiciaries. Bowen’s focus on Central America provides much information about seldom studied legal institutions and civil society actors with the obvious tradeoff involving whether the judicial regime approach can be used to study judiciaries in other contexts.
As previously noted, this book fills a gap in the judicial literature by incorporating societal autonomy as a factor affecting the ability of courts to enhance the rule of law. However, it calls for further research in several areas. For instance, the argued interaction between political independence and societal autonomy might benefit from a focus on rules besides judicial selection, such as those that define judicial accessibility, scope, and majority or supermajority voting rules required for judges to make decisions (Ríos-Figueroa 2011; Brinks and Blass 2017). This may allow for a more comprehensive understanding of how rules shape judicial behavior according to the context in which they are applied. Even more importantly, accounting for institutional variation across judicial systems is a necessary [*104] condition to produce truly comparative analyses (Navia & Ríos-Figueroa 2005; Hirschl 2014). This is especially important for designing and implementing institutional reforms that target specific goals such as democratic constitutionalism, limited government, and access to justice.
The judicial regime approach is a reminder that institutional choices need to be understood as bargains among a variety of often conflicting political and societal interests. As such, further research might examine more systematically what aspects of the political context affect the ability of courts to hold accountable public officials as well as to punish corrupt or criminal actors beyond political independence and societal autonomy. Bowen hints at this at the end of the book when she argues that the characteristics of party systems such as fragmentation or electoral volatility are relevant factors to understand when partisan judicial systems may “help or hurt democracy” (p. 226). However, more is needed in this regard. A natural next step would be to use a larger sample of judicial regimes to assess what political contexts may allow judicial regimes, even those that are highly partisan, to exert power over elected officials as shown by Brouard and Hönnige (2017) in another small-N study. Finally, the effect of societal autonomy on the type of judicial regime cannot be fully understood without exploring the different types of networks which tie organized crime to politics. This might include explaining how criminal organizations not only directly, as claimed by Bowen, but indirectly weaken the influence of courts.
Bowen’s book not only contributes to the judicial scholarship by forcing us to look at how societal actors who act criminally threaten the rule of law, but also provides much needed commentary on why some reform efforts have succeeded and others have failed. THE ACHILLES HEEL OF DEMOCRACY is an important piece of research for those interested in comparative courts and judicial behavior, and also serves as a reference for established scholars and students interested in Central America, legal evolution, human rights, and democratic deficits.
REFERENCES:
Brouard, Sylvain, and Christoph Hönnige. 2017. “Constitutional Courts as Veto Players: Lessons from the United States, France and Germany.” EUROPEAN JOURNAL OF POLITICAL RESEARCH 56.3: 529-552.
Ginsburg, Tom, and Moustafa, Tamir, eds. 2008. RULE BY LAW: THE POLITICS OF COURTS IN AUTHORITARIAN REGIMES. Cambridge: Cambridge University Press.
Hirschl, R. 2014. COMPARATIVE MATTERS: THE RENAISSANCE OF COMPARATIVE CONSTITUTIONAL LAW. New York: Oxford University Press.
Navia, Patricio, and Julio Ríos-Figueroa. 2005. “The Constitutional Adjudication Mosaic of Latin America.” COMPARATIVE POLITICAL STUDIES 38.2: 189-217.
© Copyright 2018 by authors, Lydia Tiede and Susan Achury.
