In the panorama of Latin American judicial politics, Chile's courts have been most notable for their deference and conservatism in rights cases. Neither the ordinary courts nor the constitutional court have been historically inclined to take stands in defense of constitutional guarantees. In matters of public law, rather, the tradition has been one of detachment from the public realm, an almost solipsistic retrenchment from things political that has deep historical roots, involving, among other things, a defensive reaction against intervention by the executive branch, which led the judiciary to seek out a reasonable degree of autonomy by confining its work to so-called normal judicial business, that is, the regular application of the legal codes to common civil and criminal cases.

Furthermore, as we have noted elsewhere (Couso 2002; Hilbink 2007), the Chilean courts have historically had a strong corporatist outlook that has contributed to their isolation from the rest of society, in a fashion analogous to the detachment that the country's armed forces have had from the civilian world. This corporatist outlook helps to explain the indifference of the Chilean courts toward the public debates that have taken place in Chile's society over the last two centuries. Furthermore, the corporatist and isolated position of the judiciary contributed to the formation of a professional culture that discouraged judges from getting involved in politically charged cases, which in turn conspired against the development of judicial assertiveness in rights cases (see Chapter 9).

INTRODUCTION

Implicit in the assertion of a connection between legal culture and the judicialization of politics in Latin America is the notion that both concepts relate to relevant practices in this area of the world. As it turns out, however, neither is uncontroversial. Some scholars do not recognize the notion of legal culture as a meaningful or useful category, because they reduce social reality to rationally motivated individual actors operating under the constraint of different structures. Others dismiss the idea of a judicialization of politics in Latin America as unsuitable to the region.

Building on the growing body of literature that has documented the emergence of judicialization of politics in Latin America (Ríos-Figueroa and Taylor 2006; Taylor 2006; Sieder et al. 2005; Gloppen et al. 2004; Domingo 2004; Smulovitz 2002; Helmke 2005), this chapter takes legal culture to be a useful analytical category to make sense of the behavior of judges, lawyers, and even society at large. It then proceeds to explore the connection between judicialization and legal culture in the region. Furthermore, it suggests that in addition to structural factors such as the introduction of constitutional courts, the grant of judicial review powers to high courts, or the emergence of support structures, important changes in the internal legal culture of the region have been crucial for the emergence of judicialization of politics in Latin America. Specifically, the chapter traces the role that legal scholarship – in particular, constitutional theory – has played in transforming the region's legal culture.

INTRODUCTION

Legal practices and ideas about law are undergoing dramatic change in Latin America. Today, a turn-of-the-century crop of constitutions grants high courts greater powers; provides long lists of social, economic, and cultural rights; and assigns international treaties constitutional status – or better – within the hierarchy of laws. Judges, in turn, have embraced a new role. In the past, courts were not expected to defend – let alone expand – citizen rights, but to quietly preserve the status quo through formalist interpretation. As one scholar put it only two decades ago, “persistent cultural attitudes” have meant that Latin American judges lack “the values necessary for actively guarding the constitution against popularly elected leaders” (Rosenn 1987). But in recent years several high courts have begun to cast themselves as defenders of rights and to intervene in significant political controversies. And, correspondingly, political claims more often take legal forms. Activists throughout the region increasingly use courts as a stage for their struggles and as a portal through which to import favorable international norms. The growing importance of law, legal discourse and legal institutions in the political arena has led scholars to report that a “judicialization of politics” is underway in the region (Domingo 2004; Sieder, Schjolden, and Angell 2005).

Our volume explores this landscape of changing legal cultures. Starting with the assumption that formalism is no longer a useful concept for describing Latin American legal cultures – and was in any case always an oversimplification – we explore the repertoires of legal ideas and practices that accompany, cause, and are a consequence of the judicialization of politics.