Judicial Independence and Democracy

As we have seen, over the last 20 years or so, many of the countries in Latin America have gone from authoritarian regimes to democratic or semi-democratic regimes. Judicial independence is often mentioned as one of the pre-requisites for a successful democracy. Elections might be more likely to be "free and fair" in the presence of independent courts that can enforce the democratic rules of the game, monitor violations, and ensure respect for civil and political rights in the face of powerful incumbent governments. An independent court might be more likely to check the usurpation of power by the executive to the detriment of congress, thus preserving the separation of powers. A strong court might act to protect minorities' political rights.

Most observers, however, argue that Latin American courts have failed to achieve meaningful levels of independence - not only during past dictatorial regimes, as we saw in Chile, but also in currently democratic countries. In this unit we will examine some of these claims, looking in detail at the evolution of the Argentine Supreme Court since re-democratization in 1983 to the current changes under President Kirchner, who took office in 2003. We will evaluate claims that the Argentine Supreme Court actually contributed to democratic deficiencies in Argentina, aiding and abetting in the creation of a less desirable variant of democracy that some have called "delegative" democracy.

We will use the Argentine case to develop a general definition of independence, and a general theory that might account for different levels of independence across courts. We will debate whether the popular (and expert) perception that Latin American courts generally lack independence is justified. We will also examine conventional accounts for the lack of judicial independence in Latin America. These discussions should help us understand the behavior of some of the courts we have already seen, and offer some insight into why some Latin American courts might be lagging in the defense of the rights of incarcerated persons, in putting an end to human rights violations, and in enforcing limits on executive power.