Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile
Book Description
This book examines different hypotheses about Chilean judicial behavior before, during, and after the authoritarian interlude. The book explores arguments based on judges'' personal policy preferences, social class, and legal philosophy, but contends that institutional features, grounded in the ideal of “apoliticism,“ best explain judges'' conservative and conformist conduct.
Table Of Content
Acknowledgments
Introduction
Overview of the Argument
Methodology and Data Reporting
Plan of the Book
1 The Judiciary, the Rule of Law, and Democracy: Aspirations and Impediments
The Judicial Role in Democracy and Democratization
So Why Bother with Judges?
The Roots of Judicial Behavior in General
Judicial Behavior in Illiberal Contexts: Specific Hypotheses
The Regime-Related Explanation
The Attitudinal Explanation
The Class-Based Explanation
The Legal Theory Explanation
The Institutional Argument
2 The Institutional Construction of the Judicial Role in Chile
Law and Courts in Colonial Times and in Early Independence
Law and Courts under the Portalian Republic
Law and Courts before and during the Parliamentary Republic
The Judiciary in Constitutional Transition and Dictatorship
The Development of Conservative Judicial Activism from 1932 to the 1960s
Conclusion
3 Conservative Activism in the Heyday of Democracy, 1964C1973
The Judicial Role in the Frei and Allende Years
Explaining the Judicial Role under Frei and Allende
Conclusion
4 Legitimizing Authoritarianism, 1973C1990
PART I: 1973C1980: “THE RULE OF LAW SHOW”
The Military Government’s Approach to Law (1973C1980)
The Judicial Response to Military Law and Policy (1973C1980)
Habeas Corpus (Amparo)
Review of Military Court Decisions
Constitutional Review (Inaplicabilidad por Inconstitucionalidad)
The New Constitutional Review Mechanism: Recurso de Protección
High-Profile Public Law Cases
Summary, 1973C1980
PART II: 1981C1990: THE “NEW INSTITUTIONAL ORDER”
The Military Government’s Approach to Law (1981C1990)
The Judicial Response to Military Law and Policy (1981C1990)
Habeas Corpus (Amparo)
Constitutional Review I: Recursos de Protección
Constitutional Review II: Inaplicabilidad por Inconstitucionalidad
High-Profile Public Law Cases
Summary, 1981C1990
PART III: EXPLAINING THE JUDICIAL ROLE UNDER PINOCHET, 1973C1990
Regime-Related Factors
Political Attitudes and Preferences
Legal Philosophy
Institutional Structure and Ideology
Conclusion
5 Continuity and Change after the Return to Democracy, 1990C2000
Democratic-Era Efforts to Liberalize Law and Justice
The Judicial Role in the 1990s
Decisions in Authoritarian-Era Rights Cases
Decisions in Postauthoritarian Rights Cases
Explaining the Judicial Role in the New Democracy
Conclusion
6 Conclusions and Implications
Institutionalized Apoliticism
Institutionalized Apoliticism in Comparative Perspective
Broader Implications of the Argument
The Limits of Judicial Independence
Institutions as Rules and Roles
In Defense of Political Courts
Appendix A:Orienting Information on Chilean Law and Courts
Appendix B:List of Interviewees (alphabetical by category)
References
Index