2022-11-19 04:11


Rule of Law in Latin America: The International Promotion of Judicial Reform

P Domingo, R Sieder

This article offers an informative, interesting, and reflective analysis of a timely topic: the experiences, successes, and failures of the international promotion of judicial reform and the rule of law in Latin America. The project originated in a conference titled 'Issues in Judicial Reform in Latin America: International Organisations, NGOs, and Rule of Law Construction,' convened by Rachel Sieder in November 1999 at the Institute of Latin American Studies. In the resulting volume, seven authors with backgrounds in law and political science successfully approach the issue of the rule of law from different angles. The authors draw on their research experience at well-known universities as well as the three most significant international donors in Latin America in the field of justice reform: the U.S. Agency for International Development (USAID); the World Bank, and the Inter-American Development Bank (IDB). Besides adding credibility to their analyses, this diversity in backgrounds ensures that each of the chapters adds new insights. Judicial reform has gained widespread international attention only during the last decade and a half. As this collection demonstrates, however, judicial reform was also an issue of concern during the 1960s. The wave of dictatorships that dominated the region in the 1970s interrupted the plans of reform-minded judges and politicians; thanks largely to the interest of the international organizations (principally development agencies and banks), judicial reform reappeared on the agenda of practically every Latin American country after the return to democratic rule-or the end of civil war, in the cases of Guatemala and El Salvador-in the 1980s and early 1990s. Ten years later, judicial reform has become one of the major concerns of politicians and academics interested in state reform and democratic consolidation. Though there is a growing literature on the role of international organizations in the reform process, most of these books have been written from the point of view of a specific organization. Few books have tried to give an overview of the role the donor community has played in defining the reform agenda and contributing to its implementation. This book intends to fill that gap. The main contributions of this edited volume are to map out the history of international involvement in the promotion of the rule of law, identify the main areas of concern, outline some of the complexities and problems involved when many international actors wish to be involved in roughly the same types of activities in the same sector, and offer an assessment of how successful international organizations have been in strengthening the rule of law. The book raises a series of important practical concerns connected to these issues and offers a battery of empirical examples to illustrate the breadth and depth of involvement of various international actors. As the editors point out, the dual, largely parallel, and frequently donor-supported processes of political democratization and economic liberalization have increasingly caused international donor organizations to view the rule of law as 'a critical aspect of governance and a central focus of policy concern' (p. 1). This is not a particularly novel view, as there is widespread recognition among international donors, as well as governments in Latin America, that the reform of the regions weak and ineffective judicial systems is vital in order to achieve common goals, such as 'democratic governance, economic stability, respect for human rights, social justice, and citizen security' (p. 1). Nevertheless, in spite of the general agreement on the necessity of reform, there is still widespread disagreement on the definition of 'the rule of law.' One of the main undertakings of this book is to illustrate some of this complexity. The different authors address such questions as the effectiveness of reforms, the assessment of donor initiatives, the international interest in judicial reform, the objectives of the reforms, the consultation processes preceding the reforms, the monitoring of reform projects, the relationships between international organizations and national governments, and the cooperation between various international organizations in promoting their objectives. Thomas Carothers in his introductory chapter provides a short but comprehensive overview of the issues at stake in international rule of law promotion. He discusses in some detail the four main areas of concern driving international justice reform initiatives: democracy enhancement, economic development, human rights and social justice, and international law enforcement. Because these areas are so different, he argues, international donors have multiple agendas that risk encountering conflicting policy objectives and policy domains. Instead of viewing this multiplicity as a problem, Carothers argues, various donors need to take this complexity into account. Luis Salas in chapter 2 maps out the interesting and perhaps lesser-- known history of judicial reform in more detail. Going back to the U.S.-- sponsored law and development movement of the 1960s, Salas shows how these reform efforts, attempted mainly by USAID and U.S. legal scholars, were part of a broader U.S. foreign policy democratization agenda that included legislative reform, improvement of public administration, and public safety. This project failed, and USAID abandoned justice reform as a tool of development. Using empirical examples from various countries, Salas further illustrates how the donors picked up the issue again after the return to democratic rule in the 1980s, in response to the large-scale human rights violations that had taken place. They shifted their focus primarily to the administration of justice initiatives. It is interesting to n



P Domingo,R Sieder

本文对时下热门的国际推动司法改革的经验,成功和失败以及在拉丁美洲法治等话题展开了一个富有信息,有趣和值得思考的分析。该项目起源于题为 “在拉丁美洲司法改革的问题:国际组织,非政府组织和法制建设的规律,”的会议。在拉丁美洲研究所于1999年11月在Rachel Sieder召开。在会议上,七位法学和政治学背景的作者从不同的角度规阐述了在成功解决法律问题的方法。作者描述了他们在知名高校以及在拉丁美洲司法改革领域的三个最显著国际捐助者:美国国际开发署(USAID);世界银行和美洲开发银行(IDB)的研究经历。这种多元化的背景除了增加他们的分析的可信度,而且保证了每个章节中增加了新的见解。在过去十年半司法改革已经获得了广泛的国际关注。正如过去研究表明,司法改革也是20世纪60年代期间关注的问题。在20世纪70年代独裁统治的浪潮占主导地位的地区,具有改革创新精神的法官和政客的计划被中断了;很大程度上要归功于国际组织(主要是发展机构和银行)的利益,司法改革又出现在内战结束后的几乎所有拉美国家,民主制度议程被恢复,例如20世纪80年代在危地马拉和和90年代初在萨尔瓦多。十年后,司法改革已经成为对国家改革和巩固民主感兴趣的政治家和学者所主要关注的问题之一。尽管有关于国际组织在改革过程中的作用的研究越来越多,然而这些书大部分都是从已经从一个特定组织的角度编写。很少有研究从全局的角度对捐助者在确定改革议程,并推动其执行所起的作用进行了概述。这本书旨在填补这一空白。该研究的主要贡献是描述国际法治的发展历史,确定主要关注的领域,明确指出出包括许多国际行动者希望参与粗略同类型的在同一个部门的活动等问题的复杂性,并提供了对于如何加强国际组织的法治建设的评估。这本书提出了一系列的有关于这些问题的实际想法,并提供了实证例子来说明各种国际组织参与的广度和深度。




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