Over the last thirty years virtually all Latin American countries have reformed their legal systems. The range of reform is as large as the region, including changes in tenure and appointment procedures for judges at all levels; creation of judicial councils, constitutional courts, and autonomous prosecutorial bodies; adoption of alternative dispute resolution mechanisms; updates of criminal codes and the criminal justice system; changes in information management and transparency in trials and courthouses; and changes in legal education, law schools, and bar associations. Linn Hammergren has accompanied this process both as a scholar and as a promoter of reform from institutions such as the United States Agency of International Development (USAID) and the World Bank (WB). Envisioning Reform is the product of this double experience thinking about and actively working on judicial reform in Latin America for two decades. The book's structure as well as its contributions and shortcomings reflect this rather interesting combination.
The book is divided into two parts. The first is more attuned to the scholar interested in theoretical puzzles and empirical regularities, while in the second part the experienced consultant and practitioner discusses the best strategies for achieving practical goals in the reform enterprise. In the five chapters comprising the first part, the author addresses the origins and evolution of different parts of the judicial reforms in chronological order, starting with the criminal justice reforms that began in the mid 1980s and continuing with reforms aimed at increasing the efficiency and efficacy of courts, judicial independence, access to justice, and the more recent reforms that intend to strengthen the judiciary's role as a check on other branches of government.
In each chapter, Linn Hammergren critically evaluates the progress made in the respective area and, more interestingly, analyses from the vantage point of her two decades of experience the relationships between the different areas, uncovering contradictions as well as identifying potential synergies. For instance, Hammergren criticises that the incremental and fragmented nature of reform processes creates a problem between increasing access to courts for larger numbers of people and enhancing court efficiency. Hammergren shows well how distinguishing between access to courts and access to justice, in addition to an understanding of efficiency that goes beyond reducing case backlog, has the potential to avoid that one area of the reform clashes with the other, and instead can be channelled to improve judicial performance overall (see, especially, chapters two and four).
In general, the first part of the volume constitutes a rich mine of hypotheses and conjectures in the different substantive topics of judicial reform that can be empirically analysed in a systematic way by scholars from different disciplines such as economics, political science and sociology. Take for instance criminal justice reform. As Hammergren shows, the tendency in the region has been to split the criminal process into several steps and actors – a prosecutor who investigates, a juez de garantías who oversees the prosecutor, a judge for deciding whether the case goes to trial, and a trial judge or panel of judges who produce a sentence – in order to guarantee the rights of due process thought to be jeopardised by the concentration of the functions into a single actor as occurred under the classic inquisitorial process. However, as the author also shows, this fragmentation of the criminal process also seems to create delays, encourage bureaucratisation and possibly corruption, and thus produces opportunities for a miscarriage of justice (pp. 45–6). Systematic empirical analyses of these interesting propositions constitute not only theoretically interesting endeavours but also findings of a potentially high practical value.
In the second part of the volume, composed of four chapters, the author discusses the shortcomings of piecemeal approaches to reform and argues for a comprehensive strategic model. Such a systemic view should not, Hammergren argues, obviate the fact that much can be done across the region's judiciaries by simply improving their administration. More professional managers, accountants and economists, and less judges, lawyers and judicial career personnel should be administering the judiciaries. In addition, this systemic view calls for greatly improving the poor quality or plainly absent evaluations of judicial reforms. Without enhancing ‘knowledge management’ and combining efforts in different fronts – judicial, academic, political and donor communities – efforts directed at a comprehensive reform would be hampered by making the same past mistakes (p. 284–91).
This plea for a systemic reform is undoubtedly appealing. However, as Hammergren herself points out in the last chapter, it still has to overcome challenges that range from political dynamics in each country to the self interest of the different actors involved in the reform process. As the author emphasises, a more comprehensive understanding of institutional transformation, including relations between branches as well as electoral and societal dynamics, still has to gain traction among reformers themselves, who have been predominantly lawyers and legal academics who tend to think that judicial reform is more about lawyering and less about institutional development (p. 231). A thorough and theoretically grounded analysis of institutional transformation in the region that goes beyond ‘political will’, or the lack thereof, as the main explanation for the success or failure of judicial reform is thus much needed.
Throughout the book, Linn Hammergren identifies several problems of reform efforts and offers interesting ideas for potential solutions. The academic reader will find in each chapter many interesting hypotheses that can be further explored empirically. The practitioner will benefit from insightful details of personal experiences dealing with politicians, judges, and the donor community at the international, national, and local levels. Envisioning Reform is a rich account of twenty years of judicial reforms in Latin America and welcomed addition to the growing multi-disciplinary literature on the subject.
