cambridge university press judges beyond politics in democracy and dictatorship lessons from chile jul 2007 kho tài liệu bách khoa

Specifically, the institutional structure and ideology of the Chilean judiciary, grounded in the ideal of judicial apoliticism, furnished judges with professional under- standings and in

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JUDGES BEYOND POLITICS IN DEMOCRACYAND DICTATORSHIP

Why did Chilean judges, trained under and appointed by democratic ernments, facilitate and condone the illiberal, antidemocratic, and antilegal policies of the Pinochet regime? Challenging the common assumption that adjudication in nondemocratic settings is fundamentally different and less puzzling than it is in democratic regimes, this book offers a longitudinal anal- ysis of judicial behavior, demonstrating striking continuity in judicial perfor- mance across regimes in Chile The work explores the relevance of judges’ personal policy preferences, social class, and legal philosophy but argues that institutional factors best account for the persistent failure of judges to take stands in defense of rights and rule of law principles Specifically, the institutional structure and ideology of the Chilean judiciary, grounded in the ideal of judicial apoliticism, furnished judges with professional under- standings and incentives that left them unequipped and disinclined to take stands in defense of liberal democratic principles before, during, and after the authoritarian interlude.

gov-Lisa Hilbink is a two-time Fulbright grantee to Chile and Spain From 2000

to 2003, she was Post-Doctoral Fellow in the Princeton University Society

of Fellows and Lecturer at the Woodrow Wilson School of Public and national Affairs Her doctoral thesis, on which this book is based, won the Best Dissertation Award for 1999/2000 from the Western Political Science Association Dr Hilbink is a member of the American Political Science Asso- ciation, the Law and Society Association, and the Latin American Studies Association She is now Assistant Professor at the University of Minnesota, Twin Cities.

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JUDGES BEYOND POLITICS IN

DEMOCRACY AND DICTATORSHIP Lessons from Chile

Lisa Hilbink

University of Minnesota, Twin Cities

First published in print format

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To Dad, who gave me my sense of justice, and to Mom,

who devoted her life to peace.

1 The Judiciary, the Rule of Law, and Democracy: Aspirations

The Judicial Role in Democracy and Democratization 14

Judicial Behavior in Illiberal Contexts: Specific Hypotheses 27

Law and Courts in Colonial Times and in Early Independence 42

Law and Courts before and during the Parliamentary Republic 51 The Judiciary in Constitutional Transition and Dictatorship 55 The Development of Conservative Judicial Activism from 1932

4 Legitimizing Authoritarianism, 1973–1990 102

PART I: 1973–1980: “THE RULE OF LAW SHOW” 106 The Military Government’s Approach to Law (1973–1980) 106 The Judicial Response to Military Law and Policy

Constitutional Review (Inaplicabilidad por

Constitutional Review I: Recursos de Protecci´on 144

Constitutional Review II: Inaplicabilidad por

Democratic-Era Efforts to Liberalize Law and Justice 179

Decisions in Authoritarian-Era Rights Cases 189 Decisions in Postauthoritarian Rights Cases 203 Explaining the Judicial Role in the New Democracy 208

6 Conclusions and Implications 223

Institutionalized Apoliticism in Comparative Perspective 229

To begin, I would like to express my sincere gratitude to the variousinstitutions that provided funding for the research and writing of thisbook The original research in Chile was made possible by a grant fromthe J William Fulbright Foreign Scholarship Board Follow-up tripswere supported by grants from the University Committee on Research

in the Humanities and Social Sciences, the Woodrow Wilson School,and the Faculty Research Grant Committee of the Program in LatinAmerican studies, all of Princeton University Much of the reading andthinking that went into the theoretical framework of the book was doneduring my years as a Wilson-Cotsen Fellow in the Princeton UniversitySociety of Fellows in the Liberal Arts I thus owe a tremendous thankyou to both the Woodrow Wilson School and the Society of Fellows fortheir financial support during that time Finally, I thank the College ofLiberal Arts and the Department of Political Science at the University

of Minnesota, which provided the general research funds on which Idrew for write-up support and assistance

I also extend profound thanks to the many Chilean individuals andinstitutions who aided and cooperated in this study Many judges andlawyers, whom I promised anonymity, gave me interviews of two ormore hours; others typed out long answers to each of my questions

I am most honored by and very appreciative of the time and trustthey offered me I am also grateful to the personnel of many institu-tions which facilitated my work, including persons at the Biblioteca

de la Corte Suprema, the Biblioteca del Congreso, the Biblioteca

Nacional, the Comisi´on Chilena de Derechos Humanos, the Fundaci´onArchivo y Documentaci´on de la Vicar´ıa de la Solidaridad, and, aboveall, the Universidad Diego Portales, Facultad de Ciencias Jur´ıdicas ySociales.

Chilean scholars Jorge Correa, Hugo Fr¨uhling, and Augusto Varasdeserve special recognition for their guidance at crucial stages of thestudy Rodolfo Aldea, Jos´e Luis Cea, Fernando Escobar, and Alex Wilde

also provided invaluable insights, advice, and pitutos In addition, I

thank faculty members at the Diego Portales Law School from whom Ilearned so much both in private discussions and public seminars: Mauri-cio Duce, Gaston G´omez, Felipe Gonz´alez, Mar´ıa Ang´elica Jim´enez,Cecilia Medina, Jorge Mera, Carlos Pe ˜na, and Cristian Riego Finally,for their intellectual support and friendship, I want to thank MarioBugue ˜no, Javier Couso, Pablo Policzer, and the late Marta P´erez Longconversations with each of these individuals broadened and deepened

my general understanding of and love for Chile and helped make thisbook much richer

In the United States, I have personal and intellectual debts on bothcoasts, as well as in my new – or, better put, rediscovered – home in theheartland I could not begin to offer sufficient thanks to my adviser, PaulDrake, and to the other members of my dissertation committee at theUniversity of California-San Diego (UC-SD), Ann Craig, Harry Hirsch,Jim Holston, Alan Houston, and Carlos Waisman Each contributed inessential ways to my intellectual and professional development dur-ing my time at UC-SD and has continued to support me in the yearssince then I am also grateful to the great UC-SD friends that helpedkeep me sane during graduate school and beyond, especially OctavioAmorim-Neto, Steve Applebaum, Michele Chang, Maureen Feeley,Chris Fry, Bill Griswold, Kim Harley, Sohie Lee, Minna Mahlab, and JayMoody

As a post-doc at Princeton, I had the extraordinary privilege towork with a wide range of brilliant faculty, visiting scholars, and grad-uate students who stimulated my thinking on law, politics, and jus-tice and gave generously of their time to help me improve my work.These include Jeremy Adelman, Pablo de Grieff, Patrick Deneen, JimDoig, Kent Eaton, Christopher Eisgruber, David Erdos, Carol Green-house, Gabor Halmai, Valerie Hunt, Stan Katz, Steven Macedo, DianeOrentlicher, Kal Raustiala, Bruce Rutherford, Kim Scheppele, Paul Sig-mund, Nate Skovronick, Martin Stein, Keith Whittington, Melissa

Williams, Deborah Yashar, Mariah Zeisberg, and the directors and lows of the Society of Fellows I am particularly indebted to the members

fel-of our first-book writing group, Ana Mar´ıa Bejarano, Erica Cosgrove,and Sarah Pralle, who suffered through the reading of my extremelylong and dense dissertation chapters, gave me excellent feedback, andbecame dear friends

My good fortune continued when I joined the Department of cal Science at the University of Minnesota, where I have enjoyed theprofessional support and friendship of extraordinarily gifted, sensitive,and good-humored colleagues While I am grateful to so many of themfor their contributions to my “subjective well-being,” I owe particularthanks to Sally Kenney, David Samuels, Bill Scheuerman, and KathrynSikkink, each of whom read chapters of the book manuscript and gave

Politi-me valuable comPoliti-ments, criticisms, and advice

I also have debts to numerous individuals in my wider tual community who read and critiqued pieces of this work along theway, and/or offered general support and encouragement These includeJohn Brigham, Daniel Brinks, Rebecca Bill Ch´avez, Jodi Finkel, BryantGarth, Tom Hilbink, Diana Kapizewski, Brian Loveman, MichaelMcCann, Jonathan Miller, Tamir Moustafa, Tony Pereira, Miguel Schor,Dru Scribner, Hootan Shambayati, Matthew Taylor, and Joe Thome.For their excellent research and/or editing assistance at different stages

intellec-of the manuscript drafting, I thank Glen Gutterman, Jennifer Kwong,Mat´ıas Larra´ın, Daniel Levin, and Marcela Villarrazo Dan, in particu-lar, deserves a huge thank you for his enthusiastic and meticulous work

on the draft I sent for review Last, but not least, for their gentle ance and incredibly efficient editorial work, I thank John Berger ofCambridge University Press, and the project manager at Aptara, Inc.,Barbara Walthall

guid-The contributions of all the individuals and institutions listed aboveare important but can only pale next to those of my amazing and won-derful family The enormous and repeated sacrifices they made in order

to support the research and writing of this book humble me It is noteasy to have an academic mother, wife, daughter or sister, particularlyone whose research requires that she spend long periods in foreignlands, but my children, husband, parents, and brother have all enduredand supported, with unflagging love, humor, and flexibility, the upsand downs of the crazy life I (and, hence, they) lead My deepestthanks thus go to Ron and Dottie Hilbink, Tom Hilbink, Ed and Merry

Gerber, and Jamie, Noah, and Liliana Gerber for their endless tional and material support Sadly, the one who gave the most of all –

emo-my mother, Dottie – is no longer here to read these lines She passedaway in July of 2006, but her intellectual influence and gifts of self arereflected in every page of this work It is thus to her, and to my brilliantand loving father, that this book is dedicated

On September 11, 1973, General Augusto Pinochet helped to leadthe overthrow of one of Latin America’s most celebrated democraticregimes As part of the coup, Chile’s military leaders bombed the pres-idential palace, shut down the Congress, closed or banned politicalparties, and purged the state bureaucracy They left the courts, how-ever, completely untouched In the face of state terror, Chilean humanrights defenders thus placed their hopes in the judiciary as the onlybranch of the democratic state left intact

To the dismay of justice seekers, Chilean judges cooperated fully withauthoritarian regime in the months and years that followed Not onlydid the courts grant the military government nearly complete autonomy

to pursue its “war” against Marxism, but they also offered repeated legaljustification of the regime’s expansive police powers Judges unques-tioningly accepted the explanations offered by the government regard-ing the fate of the disappeared and readily implemented arbitrarydecrees, secret laws, and policies that violated the country’s legal codes.The Supreme Court, mouthpiece of the judiciary, publicly endorsedGeneral Pinochet’s seizure of power and declared that writs of habeascorpus disrupted the Court’s ability to deal with the “urgent matters

of its jurisdiction.” Indeed, of the more than fifty-four hundred habeascorpus petitions filed by human rights lawyers between 1973 and 1983,the courts rejected all but ten (Constable and Valenzuela 1991: 122).Moreover, the Supreme Court unilaterally abdicated both its reviewpower over decisions of military tribunals and its constitutional review

power.1Throughout, the justices insisted that the military governmentwas restoring the rule of law, even as the generals made a mockery

of the Constitution Even after civilian rule had been restored, judgescontinued to endorse the legal edifice constructed by the leaders of theauthoritarian regime (including the military’s self-amnesty), and leftlargely unchallenged the principles and values embodied therein.2This performance – which extended from passive capitulation to out-right collaboration in authoritarian rule – demands explanation at sev-eral levels To begin, such judicial behavior, in any context, shocks themoral conscience As with antebellum American judges who appliedthe Fugitive Slave Laws, German judges who implemented Nazi law, orSouth African judges who imparted legal legitimacy to apartheid (Cover

how and why professionals charged with administering justice could turn

a blind eye to – or worse, offer justification for – state-sponsored (andoften arbitrary) degradation, repression, and brutality Such behavior

is at odds both with (Western) society’s moral expectations for sionals, in general, and for judges, in particular As Paul Camenisch hasargued, professionals are “bearers of a public trust, bestowed upon them

profes-in the form of a professional degree and title, and endowprofes-ing them with

a monopoly in the provision of a service which is crucial to society.”They have “significant power which can be used either for great societalbenefit or to considerable societal harm,” and thus “they can rightly beaccused of failure not only when they use their power, influence andexpertise for the wrong purposes, purposes which are positively harm-ful, but also when they fail to use them for the proper purposes, or evenfail to do so with sufficient energy and perseverance” (Camenisch1983:

15 and 17) Like physicians who provided their professional services

to the regime’s torturers, then, judges who offered legal endorsement

of state-sponsored brutality opened themselves up to ethical critique

But of course judges are subject to particular scrutiny because, as fessionals, they are trained and take oaths to administer justice, or at

pro-least to uphold the constitution and the laws, which contain principles

1 For the official critique of the conduct of the judiciary under the military regime, see Ministerio Secretar´ıa General 1991 : Vol 1, Ch 4.

2 This only began to change in the late 1990s, following institutional reform and the detention of General Pinochet in London The extent and limits of this change will

be discussed in Chapter 5

of justice The judges in Pinochet’s Chile had been trained and pointed under a democratic regime and had taken an oath to upholdthe constitution of that regime, which provided a host of liberal anddemocratic protections Why was it that they so easily ignored that oathand supported, sometimes passively, other times actively, the illiberal,

ap-antidemocratic, and anti-legal agenda of the military government?

This question becomes even weightier when considered in light ofChile’s political culture and history In a continent plagued by politi-cal violence and instability, pre-Pinochet Chile had often been touted

as “exceptional” (Valenzuela1989: 160 and 172).3Whereas the ical histories of other countries in the region often featured “brutal,distorted, manipulated, political institutions and pseudo-liberal demo-cratic regimes” (Diamond and Linz1989: 20) and “[an absence of] tradi-tions of participation, contestation, and toleration of dissent” (Waisman1989: 63), Chile stood out for its “high level of party competition andpopular participation, open and fair elections, and strong respect fordemocratic freedoms” (Valenzuela1989: 160; see also Valenzuela andValenzuela1983) In fact, a 1965 index that ranked countries in terms ofdemocratic performance placed Chile in the top 15 percent, above theUnited States, France, Italy, and West Germany (Bollen1980).4Chilealso boasted a “strong historical tradition of respect for the rule

polit-of law and a constitutional framework polit-of presidential government”(Valenzuela1995: 31) In contrast to Brazil or Mexico, where the law

is very unevenly applied across the territory, or to Argentina, which

is notorious for its systemic corruption, Chile has long distinguisheditself by its rule-bound and orderly society As one prominent Chileansocial scientist argued in 1974: “One of the most characteristic polit-ical realities of Chile is the importance of legality as a superior stan-

dard [instancia] to which all behaviors and the resolution of conflicts

between people and institutions are referred Legality is the dation of the government’s legitimacy” (Arriagada 1974: 122).5 Why

foun-3 See also Blakemore ( 1993 ), who notes that, in the nineteenth century, Chile was considered “the England of Latin America”; and Dahl ( 1971 ), in which Chile figures

as a prominent case of successful democratic development.

4 For a more critical perspective on Chile’s “democratic exceptionalism,” see Loveman and Lira ( 2002 ).

5 Similarly, Chilean constitutional lawyer Jos´e Luis Cea ( 1978 : 6) notes that at the conclusion of the 1960s, “the Chilean population, by and large, had been educated in respect for the principle of legality, which it had internalized as its own In accordance

was it that Chilean judges so easily abandoned these alleged nationaltraditions?

The behavior of Chilean judges is particularly remarkable when trasted to that displayed by judges in countries with ostensibly far lessdemocratic and legalistic traditions, such as Brazil and Argentina.6Afterthe 1964 coup in Brazil, the Supreme Court, left intact by the junta,repeatedly called the generals on their affront to the historic Brazilian

con-constitution, even after the military attempted to stack it with more

sympathetic judges (Karst and Rosenn 1975; Feinrider1981; Nadorff

to limit what the military government could do in the name of nationalsecurity, although the former were quickly deprived of their indepen-dence (Ballard1999: 241; Pereira2005: 77) In Argentina, a thoroughlypurged judiciary first capitulated almost completely to the ruling junta,but, toward the end of the regime, began issuing general rulings limitingthe military’s power (Helmke2002)

The central question that this book seeks to answer is thus: Why didChilean judges who had been trained under and appointed by demo-cratic governments facilitate and condone authoritarian policies? Putdifferently, why in a country with such a long history of democraticpractice and respect for legality, a country whose human rights move-ment was one of the strongest on the continent, did judges make nopublic and concerted effort to defend liberal democratic principles andpractices, not only under Pinochet but well into the 1990s? In answeringthis question, the book speaks to debates in public law and compara-tive politics regarding the roots of judicial behavior, the definition andlimits of judicial independence, and the way the judicial role should

be conceived and constructed to promote the rule of law and rightsprotection

with said principle, the rulers as well as the ruled could act only to the extent that

an explicit legal precept, technically generated, had previously ordered, permitted,

or prohibited that action.”

6It is also surprising given that Chile’s judiciary was commonly thought to be much

more independent than its Argentine counterpart (Verner 1984 ).

7 In October 1965, the Brazilian junta passed Institutional Act No 2, which expanded the Supreme Court from eleven to sixteen members and gave exclusive judicial appointment power to the executive This did not achieve the desired level of compliance from the high court, however, so in late 1968 and early 1969, through Institutional Acts 5 and 6, the junta reduced membership on the court back down

to eleven and forced three of the acting justices into early retirement, which led the Supreme Court president to resign in protest (see Ballard 1999 : 241).

OVERVIEW OF THE ARGUMENT

The main argument put forth in this book is that the behavior ofChilean judges under Pinochet is attributable largely to institutionalfactors Although I also highlight the importance of the personal polit-ical views of some judges, particularly on the powerful Supreme Court,that factor alone is not sufficient to explain the courts’ paltry defense ofliberal democratic principles not just during, but also before and after,the authoritarian interlude To account fully for the weak response ofthe judiciary to violations of constitutionalist principles (i.e., liberaland democratic rights and limited power), it is necessary to under-stand how the institutional setting fostered and amplified illiberal andeven antidemocratic attitudes, but constrained the development andexpression of liberal democratic perspectives.8The institutional struc-ture and institutional ideology of the Chilean judiciary, historicallyconstructed around the concept of apoliticism, provided professionalunderstandings and incentives that rendered even democratic-mindedjudges unequipped and disinclined to take stands in defense of liberaldemocratic principles

Some definitions and clarifications are necessary to make sense ofthis claim To begin, by “institutional structure” I mean the organiza-tional rules governing the powers and duties of different offices withinthe institution, including their relationship to each other and to othergovernment offices By “institutional ideology” I mean the discrete andrelatively coherent set of ideas shared by members of the institutionregarding the institution’s social function or role, that is, the profes-sional norms that guide behavior within the institution (Smith1988).These norms were both embodied in and reproduced by the institutionalstructure In saying that these institutional features were historicallyconstructed around the concept of “apoliticism,” I mean that they weredeveloped in the nineteenth and early twentieth centuries with thegoal of keeping judges insulated from and out of the debates and affairs

of the elected branches Beyond simply securing judicial independencefrom partisan manipulation – a worthy ideal – the judicial structureand ideology in Chile built a high conceptual wall between “law” and

“politics.” However, far from rendering the judiciary politically neutral,these institutional features worked to foster and enhance a strongly

8 On how institutions “refract and constrain” outcomes, see Thelen and Steinmo ( 1992 : 3).

conservative and generally anticonstitutionalist orientation amongjudges Rather than invoke the rights guarantees or liberal-democraticstructure of the national constitution to limit abuses of public power andpromote equality before the law, then, Chilean judges, some activelybut most passively, rendered decisions that bolstered the power of stateofficials and reinforced the traditional social hierarchy, long before andwell beyond the seventeen-year dictatorship.

As I will explain in Chapter2, the judiciary’s institutional ideologyhas its roots in nineteenth-century legal positivism, which consignedjudges to be “slaves of the law” (Jaksic1997: 266) This view developedinto what I identified in my research as a legal essentialist or “antipol-itics” conception of the judicial role among judges Judges understood

“law” and “politics” as two entirely distinct and unrelated pursuits, andconsidered the goals of judges and legislators to be completely separateand divergent In this fetishized view of the law,9 the less “political”judges were, the more “legal” they would be

Such an understanding, I argue, was strengthened and reproduced

by the institutional structure that was established in the 1920s, whenreformers sought to end executive manipulation of the courts and pro-fessionalize the judicial career.10 It was at this time that the formaljudicial hierarchy was established and the Supreme Court was givencontrol over discipline and promotion within the career, even control-ling nominations to its own ranks Although this structure successfullyincreased judicial independence from executive control, it henceforthprovided incentives for judges to look primarily to their superiors –rather than to any other audience or reference group – for cues on how

to decide cases Judges thus learned that to succeed professionally, thebest strategy was to eschew independent or innovative interpretation infavor of conservative rulings that would please the high-court justices

In this way, conservatism and conformity were continually reproducedwithin the inward-looking judicial ranks

It was for these reasons that after the 1973 military coup even judgespersonally at odds with the laws and practices of the military regimewere professionally unwilling or unable to defend liberal democratic

9 I thank Carol Greenhouse for this phrasing.

10 By professionalization, I mean a process by which an institution is transformed such that the criteria for selection and promotion within it are made on the basis of specialized knowledge and demonstrated skill or merit, rather than primarily through personal or partisan favors.

principles and practices Publicly challenging the validity of the regime’slaws and policies in the name of liberal-democratic values and principleswas viewed as unprofessional “political” behavior, which threatened theintegrity of the judiciary and the rule of law Under the watchful eye ofthe Supreme Court, any judge who aspired to rise in the ranks of thejudiciary learned not to take such stands Instead, judges conformed tothe conservative line set and policed by the Supreme Court.

In making this institutionalist argument, I do not mean to imply thatthe judiciary functioned in a social and cultural vacuum Indeed, I makeclear that the institutional structure and ideology of the Chilean judi-ciary embodied and reproduced the interests and ideas of its nineteenth-and early twentieth-century designers My explanation is, therefore,historically bounded Yet this study offers more than a particularisticinterpretation of judicial performance in Chile It uses the Chilean caseboth to test and to generate hypotheses regarding the sources of judi-cial behavior under both democratic and authoritarian regimes.11Thehypotheses I explore in this study include explanations of judicial behav-ior based in personal policy preferences, legal philosophy, class-basedinterests, and regime-related variables such as fear and manipulation bythe executive My analysis of the Chilean case demonstrates the lim-its of each of these explanations on its own, and offers instead a morecomplete institutional argument, whose general elements can in turn

be tested in future comparative research

The main theoretical contribution of this longitudinal case study,then, is its identification of the sources of a clear pattern of judicial be-havior that persisted across regimes in Chile The sources of this behav-ior are not, however, unique to Chile In thefinal chapterof the book,

I present evidence from secondary sources on a variety of other casesthat suggest broad applicability of my argument, and with these addi-tional cases in mind, I proffer several lessons for scholars and policy mak-ers The first is that formal judicial independence, even when achievedand respected, is not sufficient to produce a judicial defense of rightsand the rule of law Indeed, institutional variables appear to impactsignificantly whether or not judges will be willing and able to assertthemselves in defense of rights and the rule of law Second, judicialbehavior scholars need to pay more attention not only to the way

11 For discussions of the value of case study to theory-building in political science, see Lijphart 1971 ; Eckstein 1992 ; King, Keohane and Verba 1994 ; Rueschemeyer 2003 ; Gerring 2004

institutions constrain the expression of judges’ preexisting attitudes butalso to how they constitute judges’ professional identities and goals.Judicial role conceptions matter, and we need to understand better howthey are formed, maintained, or altered Finally, apoliticism appears to

be the wrong ideal around which to construct a judiciary in service ofliberal democracy Although judicial independence and professionalism

are legitimate desiderata for any polity committed to the rule of law, it is

neither possible nor desirable to construct a judiciary beyond politics.For when judges are prohibited by institutional structure and/or ideol-ogy from engaging with the wider polity, they are unlikely to cultivatethe professional attributes necessary for them to defend and promoteliberal-democratic constitutionalism An “apolitical” judiciary is thusfar better suited to authoritarianism than to democracy

METHODOLOGY AND DATA REPORTING

This book offers a longitudinal analysis of judicial performance in Chilefrom 1964 to 2000 It is based primarily on archival research and inter-views conducted in Chile during a one-year period in 1996, as well as twoshorter visits in 2001 I chose 1964, the beginning of the presidency ofEduardo Frei Montalva, as the start date for my analysis of primary databecause it was precisely at this time that Chile was deemed most demo-cratic Examining judicial behavior (both decisions and other publicdeclarations and acts) during this period, as well as during and after thedictatorship, allowed me to determine if and how behavior changed withregime change The main sources of this data were judicial decisions incivil and political rights cases, published in the three main jurispru-

dential journals: Revista de Derecho y Jurisprudencia, Gaceta Jur´ıdica, and Fallos del Mes To locate these cases, I used the indices of each vol-

ume, searching for references to civil and political rights as well as toother terms that signaled government involvement, such as the Law

of Internal Security I then read them all and analyzed them for theirlegal reasoning and their political content I also recorded which judgesparticipated in or dissented from each decision, searching for patterns

at the individual level For the authoritarian period, I supplemented thedata from the jurisprudential journals with information in the monthly

and annual reports of the Vicar´ıa de la Solidaridad and the archives of the Comisi´on Chilena de Derechos Humanos, which were the two main

institutions from which the struggle for human rights was conducted.Although I discuss some of these latter cases in the text, the quantitative

analysis, summarized in the tables in each chapter, is based solely onthe published cases.

I should note that Chile’s jurisprudential journals do not provideexhaustive records of all decisions rendered by the courts, but are, rather,collections of cases selected by the editors for their juridical or socialinterest or importance There simply is no accessible “raw” source ofjudicial decision data for the period I covered in Chile The advantage

of this is that the number of decisions I worked with was able enough that I could read them all and analyze them in detail.The disadvantage is that I cannot say that the decisions I analyzed are

manage-an unquestionably representative sample of all the decisions rendered.However, given that the editors of the different sources were of very dif-ferent political persuasions, and given that I interviewed legal scholarsfrom across the political spectrum for this study, always asking them forfurther case references, I am confident in the general representativeness

12 The thirty-six represented two-thirds of the total (fifty-four) of acting high court (AHC) judges in the Metropolitan Region (greater Santiago) I selected high court judges because it is they who have jurisdiction in areas of constitutional justice (writs protecting constitutional rights and writs of inapplicability due to unconstitution- ality), as well as in cases involving violations of the Law of Internal State Security (As Chilean human rights lawyer Roberto Garret´on notes, first instance judges “had little to do with problems of constitutional justice under the military regime” In addi- tion, all high court judges also have worked in first instance courts earlier in their careers, many under the military regime, and thus could speak to that experience

as well I felt justified limiting the study to Santiago for three interrelated reasons: First, most judges work outside of Santiago early in their careers, so interviewees in Santiago bring perspectives from the provinces; second, the Santiago Appeals Court

is often a springboard into the Supreme Court, and thus its members are more likely

to be future Supreme Court justices than those from the regions (Navarro Beltr´an [ 1988 ] calculates that 45 percent of all Santiago Appeals Court judges go on to become Supreme Court justices); and third, the judiciary, like the country, is highly centralized and the views and decisions of the Supreme Court and the Santiago Appeals Court draw the most public attention and define the judiciary in the public mind.

I interviewed fifteen judges, ten of whom I had interviewed in 1996.All interviews were semistructured and lasted anywhere from forty-fiveminutes to four hours Through the interviews, I probed the judges’role conception, their political leanings, and their understandings ofthe institutional and/or political constraints that they were subjected

to under different regimes and administrations I sought to ask questions

in the most open-ended way possible, so as not to lead the subjects or

to put them on the defensive Because interview responses cannot essarily be taken at face value, I sought to triangulate and contextualizethe responses through interviews with a variety of actors, and, wherepossible, through archival material

nec-Because interviewees were promised anonymity, their names appearonly in Appendix B, where they are listed alphabetically, and are nottied personally to their statements cited in the text Instead, throughoutthe text I use a coding system that identifies subjects only by categoryand assigns them each a number that corresponds to the year and the(random) order in which I interviewed them For example, the appellatecourt judge that I interviewed first in 2001 is identified as “ACJ01–1;”the seventh Supreme Court justice interviewed in 1996 as “SCJ96–7,”and so on The key to the categories is as follows:

SCJ Supreme Court JusticeACJ Appellate Court JudgeLCJ Lower Court Judge

OL Other Lawyer and/or Law Professor (includes Ministers of

Justice)

A third major source of information for the analysis was records ofthe plenary sessions of the Supreme Court, including the annual eval-uations Through these materials, I was able to see when and how theSupreme Court exercised its disciplinary and promotion power over thejudicial hierarchy, and if there was any evidence of their changing orretracting decisions in the face of disagreement from the executive.Finally, I drew on numerous secondary sources, such as major news-papers and magazines, biographical encyclopedias, law school theses,judicial memoirs, and scholarly journal articles and books These wereparticularly useful in providing historical background to the study’s focus

period, as well as for contextualizing and expanding the data from sions and interviews.

deci-PLAN OF THE BOOK

This book proceeds as follows Chapter1provides a discussion of thespecific theoretical debates to which the analysis seeks to contribute,and elaborates the book’s arguments Specifically, it serves to situatethe arguments in comparative politics debates on the role of courts

in democracy and democratization, in the (American-dominated) erature on judicial behavior, and in terms of specific works on judicialcomplicity with illiberal/authoritarian rule Chapter2offers a historicalbackground, explaining the ideas, interests, and events that informedthe construction of the judiciary in Chile, as well as an account, based onsecondary materials, of judicial performance during the nineteenth andfirst half of the twentieth centuries.13It serves to demonstrate that theroots of judicial behavior in late-twentieth-century Chile lie in institu-tional norms and structures established long before General Pinochetarrived on the scene

lit-Chapter3turns to an analysis of judicial behavior in the years diately preceding the Pinochet dictatorship (1964 to 1973), extendingand deepening the argument begun in Chapter2by delving into pri-mary sources It elucidates how during the presidencies of Eduardo FreiMontalva and Salvador Allende, when Chile was considered to be one

imme-of the most democratic countries in the world, its courts played a role

in the system that was quite illiberal and undemocratic Although thechapter acknowledges the personal conservatism of certain members ofthe Supreme Court to be a relevant factor in the explanation for thisperformance, it argues that the behavior of most Chilean judges duringthis period (and beyond) did not reflect exogenous personal attitudes,social ties, or commitments Rather, their conservative behavior was aresponse – sincere, strategic, or both – to institutional dynamics.Chapter4continues the book’s primary analysis, contextualizing anddissecting the performance of the Chilean judiciary during the authori-tarian regime, and underscoring continuities with the preauthoritarianpast In order to account for the change in the legal context marked bythe introduction of a new constitution in 1980, the chapter is divided

13 For a basic description of how the Chilean judicial system functions, including nitions of many legal terms that appear throughout the text, refer to Appendix A

defi-into three parts Part Icovers the period 1973–1980, when the 1925Constitution was (nominally) still in place, and Part IIdiscusses theperiod 1981–1990, after the 1980 Constitution came into force PartIIIanalyzes judicial behavior throughout the authoritarian era, discussingthe evidence for the competing hypotheses presented in Chapter1, andarguing that it was institutional factors that ensured that all but the mostexceptional judges would refrain from asserting themselves in defense

of liberal democratic principles and practices during this period.Chapter5examines judicial performance in the first decade of thepostauthoritarian era (1990–2000), showing that the overarching pat-tern of judicial behavior detailed in previous chapters persisted longafter the formal transition to democracy The chapter reveals that it wasnot until after judicial reforms took effect and Pinochet was detained inLondon that the judiciary’s treatment of authoritarian-era human rightsabuses began to change In rights cases that postdated the return todemocracy, however, the more traditional behavior continued Extend-ing the argument developed throughout the book, the chapter contendsthat this behavior was institutionally conditioned

Chapter6summarizes the analysis, presents supporting evidence forthe argument from a variety of other countries, and develops the theo-retical and practical implications that I derive therefrom It emphasizesthat although the institutional features to which the book attributesjudicial performance in Chile have specific and demonstrable roots inChilean history, comparable structures and/or professional ideologies,grounded in the ideal of judicial apoliticism, can be found in manyother cases, including, among others, Italy, Spain, Japan, and SouthAfrica By contrast, in cases in which such structures and ideologieshave been absent, such as Argentina and Brazil, more rights-defensivejudicial behavior has been possible The chapter closes by discussingthe broader lessons that can be taken from the analysis of Chile andthese other cases

C H A P T E R O N E

THE JUDICIARY, THE RULE OF LAW,

AND DEMOCRACY: ASPIRATIONS

AND IMPEDIMENTS

This book examines how and why Chilean judges trained and appointedunder democratic governments lent such robust support to the Pinochetregime Although the analysis has obvious relevance for Chileans andscholars of Chile, it was motivated by and speaks to much broadertheoretical concerns Comparative politics theorizing on democrati-zation has recently begun emphasizing the need for the rule of law

to support and sustain democracy, and the need for judicial reform as

a primary means of building the rule of law (Linz and Stepan 1996;Fr¨uhling 1998; Hammergren 1998; Domingo 1999; Prillaman 2000;Zakaria 2003) However, there remains relatively little description inthe literature, much less empirical analysis, of how the judiciary func-tions (or has functioned) in most democratizing countries, and espe-cially not in Latin America.1 Thus, it is still unclear what preciselyabout judicial institutions requires reform in such countries, or whatthe limits of institutional reform might be Meanwhile, in the Amer-ican public law literature, abundant analysis of judicial functioning,particularly at the Supreme Court level, has produced heated debatesregarding if and how institutions affect judicial behavior However, thesedebates are greatly limited by an almost exclusive focus on the Ameri-can case This book thus brings theoretical concepts and debates from

1 This is slowly changing as a new generation of scholars addresses this lacuna for the Latin American region See, for example, Arantes 1997 ; Domingo 2000 ; Popkin

2000 ; Chavez 2004 ; Helmke 2005 ; Staton 2004 ; Sieder, Schjolden, and Angell 2005 ; Finkel forthcoming.

public law to bear on comparative politics theories of democratization,and contributes empirical insights from a comparative (non-U.S.) case

to address theoretical debates in public law In the mode of new tionalist analysis, it seeks to explain how institutional attributes of thejudiciary contributed to judges’ antidemocratic performance in Chile.Based on the findings, it then takes a first step toward answering thegeneral question of under what institutional conditions judges might

institu-be more likely to question and challenge undemocratic and/or illiinstitu-beralgovernmental action, and to promote the liberal principles and practicesthat, I will argue, make democracy meaningful

THE JUDICIAL ROLE IN DEMOCRACY

AND DEMOCRATIZATION

During the past twenty years, theories of democracy and tion have come to a growing consensus around the value of the liberalconcepts of rights and the rule of law Whereas in the past, some demo-cratic theorists, particularly those on the Left, tended to reject these con-cepts as either irrelevant to or in fundamental tension with democracy,today many explicitly acknowledge the rule of law and rights protection

democratiza-as either supportive of or integral to any meaningful democracy (Laclauand Mouffe 1985; Bobbio1987; Held1987; Habermas1996; Shapiro

of government unfettered by law, previous skeptics have (re)valorizedthe idea of governance in accordance with key legal principles such asconsistency, security, continuity, public accountability, and due process(Hutchinson1999) Scholars across the political spectrum now agreethat a healthy democracy requires that “the acts of agencies and offi-cials of all kinds are subject to the principle of legality, [that] proceduresare available to interested persons to test the legality of governmentalaction [and that there is] an appropriate remedy [applied] when the act

in question fails to pass the test” (Merryman1985: 141) Moreover, mostscholars now reject the idea of a harmonious collective will common insome earlier theories of democracy and accept the permanence of con-flicts and antagonisms.2 Recognizing the diversity that (increasingly)

2 Prominent democratic theorists such as Robert Dahl ( 1971 ) and Giovanni Sartori ( 1962 ) have long argued this view, but they are now joined by others who previously rejected it.

characterizes modern societies, they emphasize the need to limit thepower of governing coalitions so as to protect dissent, promote debate,and safeguard the fundamental interests of individuals and groups with-

in the opposition (Mouffe1993: 104-5; Holmes1995: Ch 1; Touraine1997: 28) In other words, today’s democratic theorists argue not onlythat there must be restraints on the routine conduct of government offi-cials, but also on lawmaking itself (Dyzenhaus1999; Tamanaha2002)

At a minimum, democratic theorists argue that to function properlythe democratic process requires respect for citizens’ basic political rights(Dean1967; Ely1980) These include the right to vote for almost alladults, the right to run for office, the right to free expression (includingcriticism of any and all aspects of government), the right to alternativesources of information, and the right to associate and assemble peace-fully (Dahl1989: 220) As Stephen Holmes (1988: 233) writes, “democ-racy is government by public discussion, not simply the enforcement ofthe will of the majority Consent is meaningless without institutionalguarantees of unpunished dissent [and] popular sovereignty is meaning-less without rules organizing and protecting public debate.” Without theprotection of what Carlos Nino (1996: 201) calls “a priori rights” (thosethat are preconditions for free political participation), the democraticprocess loses its validity

Some scholars argue for more than this procedural minimum, ing that with the values of autonomy and human dignity at its core, themodern ideal of democracy necessarily involves guarantees of certainsubstantive individual rights.3 Voters may empower leaders to repre-sent and lead them, but, whether their party wins this time around

hold-or not, they expect the government to respect their inherent dignity,that is, to show equal concern and respect for those whose lives it canaffect (Beatty 1994: 19–23).4 Although such authors disagree aboutwhich rights are fundamental – that is, about what is necessary to pre-serve individual dignity – they are united in the belief that there aresome rights that must be protected from or promoted by the democraticprocess In other words, some policies, no matter how much populardemocratic support they have, are illegitimate because of the harm they

3 By substantive rights, I mean those not directly related to the democratic process Note that such rights can be either “negative” or “positive.” See Dworkin 1978 ; Kateb 1992 ; Touraine 1997

4 This is also the general argument of Dworkin ( 1978 ).

cause to some, and potentially all, citizens.5Liberal theorists generallyagree that laws and practices violative of bodily integrity, due process,free religious belief and practice, or private, consensual sexual expres-sion have no place in a democracy.6Liberals disagree, however, aboutwhat, if any, limits are appropriate for socioeconomic policy: Some (thelibertarians) believe restrictions on private property and commerce areillegitimate (e.g., Nozick1974), whereas others (those sharing socialistconcerns) hold that such restrictions are required in order to ensurebasic subsistence and equality of opportunity for all citizens (e.g., Rawls

This emphasis on substantive rights protection is reflected in porary popular understandings and expectations of democracy aroundthe world In Western Europe, for example, scholars speak of a “seconddemocratic revolution,” driven by a new consciousness on the part ofcitizens of their rights and a growing demand that government enforcerespect for these rights This revolution “from sovereignty to justicia-bility” entails a move away from a focus on political will and majoritypower toward an emphasis on (constitutional) law and the protection ofminorities (Garapon1999: 44; Toharia2001: 29–30) Similarly, in bothLatin America and Eastern Europe, the latest wave of democratizationwas as much about securing fundamental rights as it was about restor-ing elections and the democratic process As Elizabeth Jelin and EricHershberg (1996: 3) explain, in Latin America in the 1980s, “basichuman and civil rights became the center of political activism andintellectual preoccupation Calling on the state to guarantee and pro-tect individual rights, and insisting that public officials be held account-able for their actions, social actors articulated new demands that werepivotal to the process of rebuilding democratic institutions, or, in somecountries, of constructing such institutions for the very first time.” Like-wise, in Eastern Europe, many citizens understood democracy’s promise

contem-to be that individual dignity would, at last, be respected and protected by

5 Many liberals would argue that these restrictions must apply to legislation affecting noncitizens as well.

6 As Judith Shklar ( 1987 : 2) argues, “Government must resort to an excess of violence when it attempts to effectively control religious belief and practice, consensual sex, and expressions of public opinion.” See also Kateb 1992 ; Holmes 1995

7 Using slightly different reasoning, Judith Shklar argues that legally guaranteed prietorship “cannot be unlimited, because it is the creature of the law in the first place, and also because it serves a public purpose – the dispersion of power” ( 1989 : 31).

pro-the government Kim Lane Scheppele (2001: 32) notes that in Hungary

in the 1990s, “it was common for [citizens] to say that something was

‘undemocratic’ when it violated basic rights.” Democracy “was not ciated with republicanism or elections” but rather “with a substantiveset of rights to be treated decently and with respect.”

asso-Both in theory and in the popular imagination, then, the rule of lawand respect for rights (however defined) is central to the legitimacy andfairness of a democratic regime (Beatty1994: 3).8And although courtsare not the only institutions responsible for defending rights (Tushnet

have increasingly turned their attention – and hopes – to the judiciary.This focus on courts derives in part from an analysis of democraticweakness (past or present) as resulting from the excessive concentration

of power in the legislature and/or the executive in many countries.9Inthis view, there have not been enough healthy mechanisms of “hori-zontal accountability” to keep elected officials within legal and consti-tutional bounds Although regular, free, and fair elections and freedom

of the media and assembly may be present in many countries, allowingfor what Guillermo O’Donnell (1999: 39) calls “vertical accountabil-ity,” there is often an absence or serious weakness of “state agencies thatare authorized and willing to oversee, control, redress, and/or sanctionunlawful actions of other state agencies [or actors].” The development

of a strong and independent judiciary, as perhaps the most crucial of anetwork of overseeing agencies, is thus viewed as an important means

to advance the rule of law, protect constitutional rights, and therebystrengthen a democratic (or polyarchic) regime

The emphasis on courts also can be attributed to a positive perception

of the role of the judiciary in American democracy, in general, and

in the U.S “rights revolution” (Epp1998), in particular.10As severalauthors have noted, a global “judicial turn” began in Europe after World

8 As Murphy argues, whereas the strain between (liberal) constitutionalist and cratic theory “is always real and often serious,” they are both grounded in a com- mitment to protecting human dignity and “to an extent, the two theories need each other” ( 1993 : 6).

demo-9 In presidentialist systems, such as those of Latin America, excessive executive power

is the general concern; in parliamentary systems, in which the legislature produces the executive, the concern is often expressed in terms of unchecked parliamentary sovereignty.

10 The significance of the judicial role in the expansion of rights in the United States has, of course, been challenged See, for example, Rosenberg 1991

War II, as a result of, among other things, the emergence of the highlyjuridical United States as “an ideal to be emulated” (Cappelletti1971;Vallinder 1994: 97) This has been enhanced by disillusionment inmany countries with political parties and legislatures – that is, withpoliticians, in general As elected officials are increasingly viewed asnarrowly partisan, corrupt, or simply incapable of protecting citizens’rights and interests, people in many societies are turning to judges as analternative (Garapon1996; Toharia2001: 30–31).11

Equally if not more important in this judicial turn has been the work

of national and cross-national organizations in promoting human rights

As David Beatty (1994: 3) points out, “For ordinary people, invokingthe authority of law [has become] one of the most obvious ways ofensuring [that] the power of the [democratic] state would not be abused

in the way which made colonial, fascistic, and communist governments

so notorious in the past.” Indeed, “a human rights revolution, risingfrom the ashes of 20th century horrors,” has put pressure on “courtsoutside of the United States to create expansive protections for rights”(Scheppele2000: 2)

Yet just because there is demand or hope for judicial rights protection

in many countries today does not mean that citizens of such countrieswill necessarily find their judges to be responsive to their rights claims.Despite the faith of some authors in judges as the guardians of humanrights, and despite diverse examples of judges taking important stands

in defense of liberal-democratic principles, it is simply not the casethat judges will always “tend to operate on behalf of internationally-recognized norms of human dignity” (Ackerman 1997: 790–791) Asthe literature on judicial complicity in undemocratic or illiberal ruleattests, and many other cases of judicial passivity indicate, judges arenot necessarily responsive to citizens’ rights claims, and in some casesmay work explicitly against them (Cover1975; Dyzenhaus1991; M¨uller1991)

SO WHY BOTHER WITH JUDGES?

Not all democratically committed theorists agree that an empoweredjudiciary is necessary to securing rights Indeed, the recent internationalembrace of judicial review has emerged after more than a century and a

11 Also, as many analysts have pointed out, it may be convenient for politicians to delegate unpopular or particularly controversial decisions to the courts.

half of suspicion of, in not outright scorn for, the idea in many countriesoutside the United States.12Even in the United States, proponents ofjudicial review have always had to defend themselves against accusa-tions that they are hostile to popular sovereignty Because judicial review(at least as practiced at the federal level in the United States) empowersunelected, tenured officials to overrule legislative majorities, it is said

to pose a “counter-majoritarian difficulty,” which requires justification

in a democratic system.13

Some deny that such justification is possible For example, cal theorist Jeremy Waldron (1999) argues that it is inconsistent todemand respect for individual moral autonomy (as in rights theory),but to mistrust the exercise of that moral autonomy through the demo-cratic process Because definitions of and relationships between rightscan never be settled definitively, any liberal society will have the diffi-cult task of resolving such matters; but to delegate this task to a small,unelected, tenured set of individuals (high court judges) is an affront tothe most basic principle of democracy: political equality Majoritarian(or “radical”) democrats such as Waldron accept that rights protection,even beyond that necessary to the democratic process – is integral todemocracy What they object to is the delegation of the power to defineand protect rights to an unelected (and hence unaccountable) elite.14Like Jacksonian democrats in the nineteenth-century United States,their view is that if the constitution does not provide clear answersregarding how to define and balance rights, then why should judges,rather than elected representatives, be the ones to exercise that impor-tant discretion (Dahl 1957; Rosenberg1991; Mandel1994; Kennedy

Four main points can be made in defense of a significant rolefor judges First, the primary empirical referent for radical democrats

is often the U.S Supreme Court, which has particular institutional

12 Note that I follow C Neal Tate in defining judicial review broadly, as the judicial practice of reviewing legislation or administrative acts for their adherence to a set

of rules or standards, express or implied, in the constitution or other laws See Tate

1992 : 3–13 See also Cappelletti 1985 and Stone 1992

13 As Bruce Ackerman notes, Alexander Bickel’s “counter-majoritarian difficulty” is

“the starting point for contemporary analysis of judicial review” ( 1984 : 1014) See Bickel 1962

14 Waldron characterizes the U.S Supreme Court as “a nine man junta clad in black robes and surrounded by law clerks” ( 1999 : 309) See also Sartori 1962 and Dahl

characteristics – such as appointment, tenure, standing, and decisionrules – that may be particularly inappropriate or problematic from ademocratic standpoint For example, the small size and (related) lim-ited diversity of the U.S Supreme Court and the fact that decisions canturn on the vote of one individual (in five to four rulings), are espe-cially galling to anyone committed to political equality However, thesecharacteristics are not universal, and different institutional rules mightimprove the democratic legitimacy of such a court (see Hilbink2006).Second, although Waldron is correct in his view that judges willinevitably come to their office with the same combination of self-interest and principle as do legislators, he, too, quickly dismisses theidea that although they perhaps are no better than legislators at making

difficult policy decisions, judges are different in important ways They

generally have different training and different institutional constraintsand incentives shaping the way they approach their work than do leg-islators (Rubin 1991; Peretti 1999) In particular, the fact that theyare not subject to popular election may (under the right institutionalconditions) allow them to make more sincere, principled decisions(Eisgruber2001) Viewed negatively, the participation of such judges inthe policy/lawmaking process provides a check on the will of the major-ity; but viewed positively, it offers an additional and distinct channel forpolitical voice and deliberation, which might, as the Federalists hoped,encourage moderation and promote more principled and/or more inclu-sive policy (Bellamy1996; Hutchinson1999; Peretti1999)

This more positive view is not just theoretical Catalina Smulovitz(1995) writes that in Argentina after 1983, judicialization became

an alternative recourse for articulating and institutionalizing politicaldemands, demands that politicians could ignore or postpone indefi-nitely, but that courts, because of the rules that govern them, couldnot.15Moreover, as Heinz Klug (2000: 160–161) argues in reference tothe South African case, a properly structured and enabled constitutionalcourt can provide “a unique institutional mechanism for the manage-ment of [what otherwise appear to be] irreconcilable political conflicts.”

He explains that “[u]nlike the executive and the legislature which areviewed as dominated by particular, even if frequently changing politicalinterests,” the South African Constitutional Court serves as a forum inwhich opposing forces can “imagine the possibility of achieving, at least

15 A similar point is made for European cases in Giles and Lancaster 1989 , Shapiro and Stone 1994 , and Scheppele 2001 and 2003

in part, their particular vision within the terms of the Constitution,”while also “shap[ing] these imaginings through the creation of externalreference points [namely international human rights standards] whichdelegitimize incompatible alternatives or visions” (Klug2000: 177).

A third and related argument against the radical democratic view

is that allowing courts constitutional jurisdiction helps to encourage

a “culture of justification,” which is by some accounts the essence ofthe rule of law In an effort to transcend the standoff between radicaldemocrats (such as Waldron, or others inspired by Jeremy Bentham)and liberal neutralists (such as Ronald Dworkin), legal theorist DavidDyzenhaus has recently argued that the rule of law should be reconceived

as the rule of a culture of justification (Dyzenhaus1999), that is, as a tem in which “government is subject to the constraints of principles[which are internal to the idea of law itself] such as fairness, reason-ableness, and equality of treatment” (Dyzenhaus1998: 152) Withoutrequiring a commitment to any more specific set of liberal principles,

sys-as in Dworkinian theory, one can still admit and find virtue in a systemthat involves “controls [that] operate in the very determination of whatlaw is” (Dyzenhaus1999: 7) Stephen Macedo highlights this virtue inthe American case:

Constitutionalism is about the individual’s right to challenge governmental acts in independent courts of law requiring officials to justify their acts in publicly reasonable constitutional terms The power of courts stands for the special form of respect we pay to those on the losing side of electoral struggles and legislative battles, and those who feel victimized by officials executing the law The courts embody (not alone, but most dramatically) a common determination to accompany the application of power with reasons,

a regulative desire to govern ourselves reasonably ( 1988 : 255)

A final point to be made against the radical democrats is that theircase offers little insight into or hope about how to construct and nur-ture a culture of respect for rights if it is not already well established.They emphasize that without a liberal political culture16and a “right”public political understanding, both rights and democracy are in peril(Waldron1999: 308) As Robert Dahl argues, the preservation of rightsand liberties “can depend only on the beliefs and cultures shared by itspolitical, legal, and cultural elites and by the citizens to whom these

16 “Liberal” here meaning grounded in a belief in the moral autonomy and integrity – that is, the equal moral worth – of each individual.

elites are responsive” (2001: 99).17Not only will shared “norms, beliefs,and habits provide support for the institutions in good times andbad,” but they will also “inevitably” provide for the expansion of the

“sphere of rights, liberties, and opportunities” (Dahl2001: 138).Although I agree that without a measure of republican virtue and

a spirit of liberty among both rulers and ruled, formal institutions arelikely to function perversely and bills of rights to serve as no morethan “parchment barriers,” I reject the implication that the only way

to achieve greater rights protection is by changing an entire national

“culture.” No culture is monolithic In most modern societies, liberalbeliefs and republican virtue fluctuate, or are shared unevenly by differ-ent sectors of the population at different times Moreover, courts do notmerely reflect but also help construct culture, particularly in transitionalperiods (Teitel2000: 4 and 23) As H.L.A Hart famously argued:

A society is a something in process – in process of becoming It has always within it seeds of dissension And it has also within it forces making for moderation and mutual accommodation The question – the relevant question – is whether the courts have a significant contribution to make

in pushing society in the direction of moderation – not by themselves;

of course they can’t save us by themselves; but in combination with other institutions Once the question is put that way, the answer, it seems to me, has to be yes 18

As this quote suggests, courts alone cannot prevent tyranny or secure

greater respect for rights.19Nonetheless, it is possible for judges to tribute positively to the construction of a more liberal regime and,

con-17 Similarly, Waldron contends that rights are “respected more on account of the lence of a spirit of liberty among the people and their representatives – a political culture of mutual respect – than as a result of formal declarations or other institu- tional arrangements” ( 1999 : 308).

preva-18 Cited in Karst and Rosenn 1975 : 98.

19 Indeed, Charles Epp has shown that responsive judges are only one of the variables necessary for a “rights revolution” to take place Along with constitutional promises

(bills of rights), responsive judges do present opportunities for legal mobilization, but

a broad and successful transition to a regime of expanded individual rights protection requires “a support structure of rights-advocacy lawyers, rights-advocacy organiza- tions, and sources of financing.” This structure can provide consistent support for

“widespread and sustained litigation,” as well as for action aimed at securing the governmental and societal cooperation necessary for implementation of judicial decisions (Epp 1998 : 8–9, 18).