The 1990s saw numerous institutional reforms of judicial power in Latin America. These were aimed at strengthening the region's independence from political power, specifically executive power, as well as increasing its own power, improving citizen accessibility and improving efficiency. In this context Jodi Finkel's study, by virtue of its original conceptual contribution and rigorous comparative empirical analysis, seeks to elucidate how similar reform processes aimed at increasing ‘judicial power’, as the author defines it (p. 5), were implemented in very different ways and gave rise to different results. The study is based on an analysis of three Latin American countries: Mexico, Argentina and Peru. The author advocates an approach founded on politics, specifically on the strategic choices of political elites. The main conceptual contribution of the work, defined by the author as the theory of political insurance, expresses this interpretation.
The insurance theory proposes that ‘in an uncertain political environment, a weakening ruling party may undertake judicial reform as “insurance policy”. By empowering the judiciary, the current ruling party hedges against likely downturns in its own political position’ (p. 14). This derives from an eminently classical tenet: the idea that those in power will always prefer to have more power than less, and hence, if they accede to an increase in counterbalances, in this case the power of the judiciary, it is because some benefit to themselves has been identified. In other words, the implementation of judicial reforms aimed at increasing the authority of judicial power has a higher probability of being effected when the governing party perceives the possibility of electoral defeat. The party will then seek to ensure long-term safeguards that judicial decisions that might affect them will be impartial and effective.
In terms of methodology, the author has selected for comparison three countries that not only saw structural economic reforms, transitions to democracy, and judicial reforms that tended to increase judicial power, but also experienced diverse implementation processes. She presents an in-depth analysis of each state by means of interviews with various key players, along with archival research and analysis of the legal texts associated with the reforms.
Finkel identifies two stages in the reform process, the first relating to constitutional reform, which she categorises as initiation, and a second stage of legal reform, which she defines as implementation, when the constitutional reforms are enacted. The consideration of these three countries reveals how the constitutional reforms relating to judicial power were carried out by means of agreements between majorities and minorities, or through strategic calculations on the part of the governing party, and were similar in content. However, the differences begin to appear in the implementation process – in the drafting of legislation to render constitutional reform effective – and the characteristics of these differences support the political insurance insight.
The 1994 constitutional reform in Argentina was made possible by a political pact between the main parties, the governing Peronists and the opposition Radicals. This pact enabled the opposition to impose conditions in exchange for its support of constitutional reform aimed primarily at enabling presidential re-election, in the shape of the incorporation of reforms to judicial power and changes in the composition of the Supreme Court. On achieving re-election, the party of government, with a majority in both the lower and upper houses, dawdled for four years in carrying out the legal reforms necessary for the implementation of the constitutional changes relating to judicial power. It was not until 1998, when the political panorama had changed and the government faced the prospect of defeat in the presidential elections of 1999, that the reforms were introduced.
In Mexico, the principal constitutional reforms aimed at increasing the independence of judicial power occurred at the start of 1995, a month after President Zedillo of the PRI took office, and were enacted straight away. In this case Finkel suggests that, since the governing party's power was waning at the state and local levels and it could not be sure of exercising power at federal level after the next elections, it opted to draw up and enact reforms aimed at guaranteeing impartial arbitration.
Finally, in the case of Peru, the situation was similar to that obtaining in Argentina. In 1993 the governing party, led by Alberto Fujimori, agreed a constitutional reform that included significant judicial reforms in return for its re-election. Once the latter had been achieved, however, it used its legislative majority to undermine the independence, power and autonomy of judicial power. Only after Fujimori's resignation did congress draw up the legislation necessary to reverse the dependency of judicial power.
This comparative analysis is a central component of the book, enabling an understanding of similarities and disparities across the region and confirming the realist viewpoint that sees reforms aimed at strengthening judicial power as only being introduced when governments perceive them as bringing short-term (such as re-election) and medium-term benefits (such as impartial arbitration in the resolution of conflicts in which the government might be involved).
In the light of this, it can be said that this study represents an important contribution for those interested in judicial politics and political processes in Latin America. Nevertheless, I should not like to finish without commenting on some of the reflections the book's analysis inspired in this reviewer. The first of these is connected to a premise seemingly implicit in the theory of political insurance: that politicians have a good sense of anticipation. In the case of Mexico this supposition is difficult to sustain in light of the fact that the reforms took place in the first few months of President Zedillo's mandate, and that some political reforms which were to be decisive in the pluralisation of political representation in the country had yet to take place. It could rather be said, in this instance, that the decision to strengthen judicial power and specifically the Supreme Court in the resolution of political conflict had more to do with the ‘hegemonic preservation’ thesis proposed by Hirschl et al. in relation to Israel. A second response relates to the consideration of judicial power as an active player in the reform process. Although not the decision maker, it is hard to imagine that judicial power has refrained from participating to some extent in these processes. The possibility of considering implementation in relationship terms, in which not only the preferences of political elites but also those of judicial power itself are relevant and taken into consideration, could suggest a political process of judicial reform in which politicians' preferences are taken into account alongside those of judges.
