This article describes the position of incumbent judiciaries during political transitions, the interventionism by the new regime’s authorities into civil law, and the influence of American constitutionalism in the countries of Latin America. The authors state that the change of any political regime affects judiciaries, and the level of the new government’s distrust of former judiciaries will determine the new ruling elite’s degree of interference (Garoupa & Maldonado, 2011). The new regime may subsequently replace the majority of incumbent judiciaries or use impeachment without the loss of the law’s power or constitutional crisis. This option was used in Chile and Argentina, where military regimes were changed to democracy in the 1980s and 1990s (Garoupa & Maldonado, 2011). Other potential ways of interference are the recodification of laws, promoting the ideology of a new regime by the judicial council, court-packing or purging, and the creation of new courts. To some degree, a civil judiciary is protected by a formalism that limits the influence of judiciaries by the sphere of law and disclaims their responsibility for absurd laws with potentially immoral consequences.
Although Europe and Latin America share a tradition of civil law, Latin America is characterized by a higher level of interventionism into the judiciary during political transitions. The most peculiar trait of Latin American judiciaries is “the influence of American constitutionalism” that is characterized by the judiciary’s politicization and the reduction of strict formalism, influenced by the US Constitution and civil law (Garoupa & Maldonado, 2011, p. 612). The authors describe the examples of political transitions in several Latin American countries from authoritarian regimes to democracy and from low-performing democracies to dictatorships. The changes of regimes in Argentina, Chile, Brazil, and Mexico were marked by a high level of political intervention into the judiciary.
Reference
Garoupa, N., Maldonado, M. A. (2011). The judiciary in political transitions: The critical role of U.S. constitutionalism in Latin America. Cardozo Journal of International and Comparative Law, 19(3), 593-644. Web.