Judicial Reform, The Neglected Priority in Latin America

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American Academy of Political and Social Science

Judicial Reform: The Neglected Priority in Latin AmericaAuthor(s): William Ratliff and Edgardo BuscagliaSource: Annals of the American Academy of Political and Social Science, Vol. 550, NAFTARevisited: Expectations and Realities (Mar., 1997), pp. 59-71Published by: Sage Publications, Inc. in association with the American Academy of Political

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ANNALS, AAPSS, 550, March 1997

Judicial Reform: The NeglectedPriority in Latin AmericaBy WILLIAMRATLIFFand EDGARDOBUSCAGLIA

ABSTRACT:udicial reform is essential in Latin America todaywhere countries lack the legal systems needed to secure democraticrule and facilitate foreign political and economic relations in theemerging world of competition and interaction between nations.Indeed, the crisis in the Latin judiciary today is so profound that itmay precipitate reforms that otherwise would be impossible. In thisarticle, we offer new data on views from within judicial sectors andsociety at large. We discuss judicial and nonjudicial problems, includ-ing institutional inertia and traditional beliefs, and propose reformsneeded to bring justice to all levels of society by enhancing efficiencyand reducing the predatory role of the state, including the bribeculture within the public sector. We consider the expected costs andbenefits both for the people in general and for government officialsand politicians, the latter constituting essential considerations ifreforms are to be realistic and stand any chance of being enacted.

William Ratliff, a senior research fellow at the Hoover Institution, Stanford Uni-versity, has written widely on recent reforms in Latin America, the Castro andSandinista revolutions, and U.S. foreign policy. He is coeditor with Edgardo Buscagliaof The Law and Economicsof Development.Edgardo Buscaglia is a research fellow at the Hoover Institution, Stanford Univer-sity and vice president of the Latin American Law and Economics Association. He isalso a professor of law and economics at Washington College and a law and economicsadviser to the World Bank.

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60 THEANNALSOFTHE AMERICANACADEMY

MEXICO andthe United Stateshave a long border and a longhistory of suspicion and hostility.Even before the signing and formalimplementation of the North Ameri-can Free TradeAgreement (NAFTA)in the 1994-96period,however,a newrelationship seemed to be emerging,one markedmoreby cooperationandsearching for policies that will servethe interests of both nations. Hemi-spheric and world conditions havebeen conduciveto improvedrelationsfor many reasons. Most important,the political and ideologicalrivalriesof the Cold War-which is to say,East-Westconflicts-are in large partbehind us and more fundamentalNorth-Southnterests,which orsolongtook second place, have been recog-nized as central to internationalrela-tions in the WesternHemisphere.NAFTAitself is a formal recogni-tion of that new relationship inlargely economicterms, while the ex-pansion of democratic practice inMexicoand Latin Americagenerallyis a positive political indicator. Butthe emergence of free markets anddemocratic governments and rela-tions doesnot mean their institution-alization, forthe latter requiresmoretime, more experience, and a firmerlegal frameworkthan yet exists. Thelatter point is essential because lawis central to a true and stable democ-racy,on the one hand, andto efficienteconomic interaction and develop-ment, both domestic and interna-tional, on the other.Legal principles underlying thecurrent economic system in LatinAmericaare supposedlybased on thefreedom to exercise individual prop-erty rights, but in reality these rights

are often ignored or violated. TwoAmerican scholars have phrased theoverall problemthis way:Legislatures and judicial systems inmuch of Latin America still lack auton-omy,stature, resources and competenceneeded to carryout all of their constitu-tional functionsfully.Courts are overbur-dened and their proceedings,both crimi-nal and civil, are routinely delayed foryears. Judges are, for the most part,poorly rainedandpaid,andthey lack thefundingto conduct nvestigations and ad-minister justice effectively. In manyplaces, judicial decisions are heavily in-fluenced by political considerations, in-timidationor outright corruption.'Immediately after taking office inlate 1994,Mexicanpresident ErnestoZedillo declaredthat a central goal ofhis administrationwouldbe legal re-form, though, as University of SanDiego law professor Jorge Vargasnotes, Zedillo has aimed at the fed-eral courts while state and localcourts, with judges appointedby thestates' governors, still suffer from"rampant corruption."2But it re-mains to be seen if Zedillo and lead-ers in other countries will have thewill and the power to implementlong-term programs of change at alllevels. One tough-minded Mexicancritic goes so far as to conclude, "Itwould be naive to think that the ghostof the old Spanish colonial state-with its enduring paternalism, cor-ruption, bureaucracy, and extremecentralization-can be exorcisedcompletely." What Latin America

1. Peter HakimandAbrahamLowenthal,"LatinAmerica'sFragile Democracies," our-nal of Democracy, p. 22. (Summer 1991).2. Arthur Golden, "Study Calls LatinAmerican Courts Corrupt," an Diego UnionTribune, 26 Jan. 1996.


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JUDICIALREFORM:THENEGLECTEDPRIORITY 61

needs is "new egal systems modeledfrankly and unashamedly on the An-glo-Saxon pattern."3This is indeed aradicalsolution,but no moreextremein legal terms than the policy af-firmed in 1992 by the U.S. SupremeCourt, namely, that foreign suspectscanbekidnappedabroadandspiritedto the United States for trial.4The problems in Latin America'slegal system are so pervasive as tomake it the butt of such wisecracksas "hecha la ley, hecha la trampa"(make the law and then find a wayaround it). An analysis of LatinAmerican legal reform published inLondon's Financial Times was ac-companiedby a cartoonthat showedajudge calling from his benchfor the"nextcase"while readers cansee thatthe waiting roomis filled with skele-tons draped with cobwebs.5A recentrating ofjudicial systems ofthe worldthat focused on efficiency and theopinions of users found the Mexicanand all Latin Americanjudicial sys-tems except Chile'sin the bottom 20percent globally.6In recentyears, someLatinAmeri-can countries have given somewhatgreater attention to enforcing theirown laws. The most dramatic exam-ples are the impeachment of Presi-dent Fernando Collor de Mello inBrazil in 1992, the removal from of-

fice ofPresidentCarlosAndr6s P6rezin Venezuela in 1993, and seriouscharges levied against PresidentErnesto Samper in Colombia in1996.7To amount to anything, how-ever,reforms must go to the political,economic,and legal roots of the dys-functional judiciary. These changesmust be accompaniedby a systematiceffortto convince the people that thereformedsystem will serve their realneeds.Some of the criticalproblemsthatmust be addressed if democraciesand economic agreements led byNAFTAare to thrive include the atti-tudes of members ofthejudiciaryandthe way they carryout their tasks, soas to reducedelays andincentives forcorruption;access to the system bypeople at all income levels; inde-

pendenceof the courtsfromall formsof political pressure and other influ-ence-peddling and blackmail; legaleducation programs aimed at stu-dents, lawyers, judges, and the pub-lic; and alternative dispute resolu-tion (ADR)mechanisms. In the longrun, judicial reformwill be effectiveonly if it is accompaniedby a changeof mentality as well as a systematicdelivery ofjustice. It will take a gen-eration or more to complete the nec-essary changes in perspective andservice, but even in the short termthe impact of serious reforms will invarying ways touch the lives of themajorityof Latin Americans, in boththe publicandprivatesectors,includ-ing the legal communityitself.As a general rule, we believe it isextremely difficult for a democratic

3. Enrique Krause, "OldParadigmsandNew Openingsin Latin America,"Journal ofDemocracy,pp. 20, 21 (Jan. 1992).4. William Ratliff, "Latins Take on theU.S. Supreme Court,"WallStreet Journal, 3July 1992.5. EdgardoBuscaglia,Jr., "StarkPictureof Justice,"Financial 7Imes,21 Mar.1995.6. WorldCompetitivenessReport Geneva,Switzerland: WorldEconomicForum, 1994);Holly Johnson and Susan Jackson, "RoughJustice,"Business LatinAmerica,4 Dec. 1995.

7. "De a Calle pide a colombianosapoyaractuaci6nde la Fiscalia,"El nacional (Cara-cas), 17 Feb. 1996.


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decisions, limited access for mostpeople, and unreasonable resolutiontimes; it placed productivity loss at23 percent.12AEuropeanbusiness of-ficial in Brazil remarked on the needfor lawmakers to enact laws that givea regulatoryframeworkfor each sec-tor.Suchlaws,he said,are "muchmoreimportant [than the constitution]fordefining the attractivenessof the op-portunitiesofprivateinvestors."13This lack of public confidence andtrust in the courtsandjudges derivesin substantial part from the percep-tion that many judges use their posi-tions for personal gain and thereforeapply the law arbitrarily.Businessand individual court users surveyedin Argentina,Chile, Brazil,and Vene-zuela say that an increasingpercent-age of litigants are forcedto provide"informal ncentives"in orderto getcourtofficers to take uptheir cases inmonths rather than years. Still moreimportantthan this rise in proceduralcorruption s the substantive corrup-tion that involves bribes soughtand accepted in an effortto influencethe outcome of the case once it is incourt.14

Lack of confidence in the judicialsector'sabilityto fosterprivatesectordevelopmentwithin a marketsystemis rising rapidly."15U.S. official re-marked to the Councilof the Ameri-cas in Washington,"Therule of law

and a judicial system which is effi-cient, impartial, transparent andfair . . . are important not only to acountry'scitizens but also to the for-eign investors which work withinthat country's legal framework.""1Amongthe basic elements of an effi-cientjudicial system that aremissingare accessibility to the courts by allpeople regardless of income level;reasonable times to disposition;pre-dictable outcomes within the courts;and adequate court-providedreme-dies. The critical problems of the le-gal system we will discuss in thisarticle include access to court ser-vices; inertia that slows or preventssubstantive reform, including par-ticular problems of administration;the courts' ack of independence;thedead weight of long and increasingdelays; and the plague of corruption.Access

The cost of access to the courtsconsists of direct, indirect, and invis-ible expenses that are so high thatthey prevent many potential liti-gants fromeven consideringthe pub-lic justice system. Even high-incomeparties may have trouble if they areunwilling to pay bribes. Because ofthese obstacles, people who believethey have grounds for legal actionnonetheless often avoid taking theircases to court.Moreover,here arefartoo few competent public defenders,especially for handling criminalcases.

12. Johnsonand Jackson,"Rough ustice."13. Matt Moffett,"LatinNations Open upto Long-TermForeign Capital,"Wall StreetJournal, 23 June 1995.14. Correa Sutil, Situacidn y politicas judi-ciales, pp. 17-21.15. EdgardoBuscaglia, Jr., "Law,Techno-logicalProgress,and EconomicDevelopment"(WorkingPaperin InternationalStudiesno.5,HooverInstitution, 1993).

16. AlexanderWatson,"Tradeand OtherU.S. Prioritiesin the Americas" Remarksde-liveredto the Councilof the Americas,Wash-ington,DC,22 May 1995).


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64 THE ANNALSOFTHEAMERICANACADEMY

InertiaProbablythe most serious obstacleto reformof the courtsystem in LatinAmericais inertia. In some cases, thelack of change is related to institu-tional structures.As MexicanOctavioPaz has put it, with special referenceto the church, military,and bureau-cracy in Latin America, "ThoughSpansh-Americancivilization is to beadmired on many counts, it reminds

one ofa structureofgreatsolidity-atonce convent, fortress and palace--built to last, not to change.Inthe longrun, that constructionbecame a con-fine, a prison.""At other times, andin many situations, the inertia canbetraced directly to individuals and/orgroups in positions of powerwho areguarding their vested interests, whoknow that if the reforms succeed,they will lose the special benefitsthey have up to now gained from thesystem as it is today.Administration

The speed and quality ofjustice inLatin America is greatly influencedby traditional and contemporaryad-ministrative factors ranging frompersonnel and budget matters to theprocessing of cases. Surveys of courtofficials in Argentina, Brazil, Peru,and Ecuadorshow that judges spendbetween 65 and 70 percent of theirtime on nonjudicial administrativetasks including filling out requestsfor supplies and signing checks.These administrative activities bothtake the judges away from judicial

work andmakethe court ess efficientbecause most judges lack adequatetraining in finances and accounting.Not surprisingly,maintaining controlofthe administration enhances "rent-seeking" capabilities.1sAdministra-tive inefficiency is increased by ex-cessive centralization.Independence

Since the colonial period, LatinAmericanjudiciaries have been com-promisedin many instances by theirlack of independence from otherbranches of the government-par-ticularly the executive-in interpret-ing the law. Anotherdebilitating fac-tor is the fact that civil law judicialsystems do not have to recognizethata court ruling in one case creates aprecedent that is applicable also insubsequent legal cases.19Delays

In the past fewyears, backlogsanddelays have increased at a crisis ratethroughout Latin America so thateven individuals or organizationswith relatively greater access to thesystem now often get bad service.There are many reasons for the de-lays, including inadequate financialresources; the lack of professionalstandards and training of litigants'lawyers; the administrative work-load borne by judges; antiquated or

17. OctavioPaz, "Reflections:Mexico andthe United States," in A New Moment in theAmericas, ed. RobertLeiken(NewBrunswick,NJ: Transaction,1979), p. 78.

18. Buscaglia, "Stark Picture of Justice";idem,"AQuantitativeAssessment ofthe Judi-cial Systems in Latin America" Paper deliv-ered at the annual meeting of the AmericanLawandEconomicsAssociation,Berkeley,CA,21-23 May 1995),pp. 25-27.19. Alan Watson, The Civil Law (Cam-bridge,MA:HarvardUniversity Press, 1981),pp. 34-36.


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unenforced procedural codes; thepassivity of judges; outright corrup-tion; and political interference.Corruption

Bureaucraticsocieties throughouthistory often had so much corruptionthat the practicebecame acceptedsolong as it didnot get outrageouslyoutof hand. On colonial Latin America,historian Charles Gibson remarkedthat "venality,graft, peculation, andpersonaluse ofpublicfunds attendedthe operation of government at alllevels. . . . The distinction betweenfees and bribes became blurred....This situation was rather one of nor-mal and expectable corruption,within which an occasional figurestood out for resisting temptation."20?The problemcontinues to this day inpart, as Nadelmann notes, because,"inLatin America,where divergencebetween the law and accepted normsis oftenstrikinglybroad,definingcor-ruption is a particularly ambiguoustask.21' San Diego professor Vargassays corruptionis "one of the most20. CharlesGibson,Spain in America(NewYork:HarperTorchback,1966),pp. 107-8.21. Ethan Nadelmann, Cops Across Bor-ders: The Internationalization of U.S. Crimi-nal Law Enforcement (University Park: Penn-sylvania State University Press, 1993),pp. 251-312.Acompositeof seven pollson cor-ruption around the world dating from the1990-94periodwas released in mid-1995.Al-thoughdozensof countrieswere mentioned nthe pollstakenbyjournalistsandbusinesspeo-

ple, the compositeincludedonly the 41 coun-tries that were listed in at least two of theseven polls. On a scale of 10 (completelyhon-est) to zero (completely corrupt),Chile was14th most honest and the United States was15th. The ratings of Americancountrieswereas follows:Canada(8.87),Chile (7.94),United

pervasive, complex and difficult-to-eradicate problems" n Latin Amer-ica.22The most harmful practice inLatin courts-for users, ofcourse,notfor members of the judiciary-is exparte communication that permitsjudges to meet separately with law-yers and otherparties from either orboth sides in a case. This practicegives justices andothercourtofficialsalmost unlimited opportunitiesto ex-act favors for their services. Incen-tives forcorruption n Latin Americainclude low salaries, opportunities,badworkingconditions,greed, tradi-tion, andfear,amongotherthings. Atpresent, judicial systems in Mexicoand elsewhere lack transparencysince judges are appointed secretlyfor short terms and/orhave insecureand inadequate pensions.

We should note that some judgesin Mexico, Colombia,and other coun-tries have taken and still do takestrong stands against corruptionin-side or outside of the system, butwhen they do so they are not onlyputtingtheir futurepersonal employ-ment prospects in jeopardy but alsoopening themselves and their fami-lies up to a range of possible abuses,including bodily harm, at the handsof those they try to prosecute. Forexample, drugdealers oftengive offi-cials the choice between plata opolmo (moneyor a lead bullet).23

States (7.79), Argentina (5.24), Colombia(3.44), Mexico(3.18), Brazil (2.70), and Vene-zuela (2.66). Barbara Crossette, "A GlobalGaugeof GreasedPalms,"New YorkU7mes, 0Aug. 1995.22. Golden,"LatinAmerican Courts."23. Nadelmann, Cops Across Borders,pp. 258, 309.


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66 THEANNALS OFTHE AMERICANACADEMYA PROGRAMOF REFORM

Now that we have examined theoverall problems facing legal sys-tems, and nations, in Latin Americatoday,we will suggest what can andmust be doneto improve he situation.Framework

Domestic economiccrises in Mex-ico in 1982 and subsequently,and inLatin America generally, led to anuneven but widespread turn to freemarket economics,especially duringthe 1990s. In turn, these economicreforms as well as inherent domesticinadequacieshave broughtona crisisin the judicial system. For judicialreform,we believe the skills of lead-ership at the upperlevels areparticu-larly important, whether in promot-ing or impeding reforms. Theeffectiveness of political parties andother organizationscan be importantalso, depending on the country.24 swe will note in the following, civilsociety is increasingly important inLatin America,and in the long run itwill be essential for the effective op-eration of a reformed udicial system,but fornow its input will be of limitedimportance in most countries withrespect to judicial reform.Any realistic program of demo-cratic judicial reform must ask farmore than what the costs and bene-fits will be for the majority. t must inparticular consider what the costsand benefits will be for that muchsmaller number of now influential

24. Robert Packenham, "The Politics ofEconomic Liberalization:Argentinaand Bra-zil in ComparativePerspective" Workingpa-per no. 206, KelloggInstitute, 1994).

Latins who have the most to lose andalso are in the best positions to pro-mote, debilitate, or kill any change.That is, it must take full and realisticaccount of the predatory role of thepublicsector,namely, he rent-seekingactivities conducted by individualsand groups within the public (andsometimes private) sectors. Thesegroupshave grownand thrived in thepast, and over the decades-evencenturies-they have become themain sourcesof inertia blocking udi-cial reform. Thusjudicial reformis inlarge part a matter of coaxingor ma-nipulating one self-interested groupwithin the government or society toreduce the influence of another self-interested groupthat is so weakenedby the crisis that it cannot resist ef-fectively.While being relentlessly re-alistic about stakes, neither a Mexi-can nor any other program shouldgenerate hostility needlessly be-tween the parties involved. Indeed,the message that must be deliveredconvincingly is that in the mediumand long term, all Latin Americans,including those who derive specialadvantages from the currentsystem,will benefit more from change thanfrom the status quo.Access

One obviouskey to bringing peopleback into the system is making itreally accessible to them. Anexampleof the kind of programthat could bepromoted would be the estab-lishment of more small claims courtsto deal with cases up to a specifieddollar amount. These courts, whichare few and far between today,could


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reduce delays, particularly in urbanareas where the backlogs are mostserious.Delays and backlogs

Mexican and almost all otherLatin American courts seem to beunable to perform their most basicfunction as solvers of conflicts.If thisproblem is to be resolved, the firstrequirement is to recognize that,while the existence of backlogs anddelays is obvious,we still donotknowas much as we should about whatled to this situation. Serious delay-reduction studies must be conductedin order to identify overarchingbot-tlenecks as well as problemsthat arespecific to individual countries, re-gions, or even courts. Such studiescouldbringmore effectivereforms ofadministrative procedures and pro-cedural codes. Time-to-dispositionstandards should be definedwith re-spect to the type and complexity ofthe case and the court user's willing-ness and ability to pay. Additionalvariables that must be considered n-clude the growthin governmentcostsof providing court services; the in-crease in interlocutoryappeals;timechanges allocated to each proceduralstep; the work time and staffing ofthe judiciary;changeofvenue forandwithin cases; how much time judgesgive to mandatorysettlement confer-ences and administrative work;andmeasures of performanceforjudges,such as the averagetime per motion,conference, and disposition. Delayscan be reducedbya more efficient useof informationtechnology. Computertechnology also would reduce oppor-tunities for rent seeking-when the

judge is cooperative-thus providingmomentumforbroaderreforms.Standards and discipline

Latin Americamust have a muchmoreeffectivesystem ofdisciplineforjudicial officials if it is to attain andmaintain high judicial standards. Atpresent, disciplinary systems areusually vague, leaving loopholes forcorruption; neffective; and in somecases simply ignored by the courtsandbythe public,whichsees nopointin even trying to challenge officials.The requirements to be a practicingattorney usually are nothing morethan holding a university law degreeand being a member of the bar, thelatter signifying nothing more thanthat one has a degree and has paidhis dues. The bar associations them-selves are usually weak and theirethical guidelines are so vague theycould hardly be enforced even if thewill to do so existed. What is more,punishments are so inconsequentialthat enforcement would never deterunethicalbehavior;removalfrom thebar is not even a possibility.Education

There is a strong need for legaleducation and training for law stu-dents,lawyers, udges,andthe public.Educationandtrainingare importantat everylevel, but particularly n lawschoolsthat have, in fact,deterioratedinmanycountriesover heyears.Basiccurriculaoffer ittle in the way of spe-cialty law classes-including intellec-tual property, law and economics,and environmental law-and en-trance and graduation requirementsare inadequate. Educational pro-


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grams are difficult for other reasonsas well, one being that many lawyersareunwillingto pass alongthe secretsof the trade to their students (andfu-ture colleagues or competitors),andthey often are not willingto volunteertheir time to teach others. In addition,in most countries, continuing legaleducationandjudicial trainingarein-adequateornonexistent.Education is also particularlyim-portant for the publicif people are toknow their legal rights and be famil-iar enough with how the judicial sys-tem operates to use it, defendit, andsupportits reform.Predictably,manyin the courts fear that if the publiccomes to understandits rights, it willpose a threat to rent-seeking activi-ties. Education via radio and televi-sion programshas beentried in somecountries,oftenconcentratingonpro-viding important information to cer-tain groups. Bar associations couldbe a forum for discussing and imple-menting changes. In fact, lawyersoften become members of specialtyprivate bar associations, and thesemight be more active in trainingthanpublic associations. Some countriesthat have had public discussionsaboutjudicial reform now have pub-lic interest groupsandresearch insti-tutions focusing on judicial reform.Their activities have ranged fromconducting public surveys on the ju-diciary to generating public aware-ness. On balance, however, in weakdemocracies,these groups have lim-ited influence.Judicial councils

Some consideration has beengiven to setting up judicial councils

that would serve as buffers betweenthe judicial and otherbranches of thegovernment. Such councils couldhave many virtues, assuming theywere not set up to represent, or didnot cometo represent, just one moreclique or elite group in society. Thecouncils might include repre-sentatives from various levels of thejudiciary, legislature, executive, barassociations, and even private or-ganizations of lawyers and the pub-lic. They could improve the imageand performance of the courts by,among other activities, nominatinglawyers forjudicial positions, estab-lishing and enforcing professionalstandards, andhelping to set judicialbudgets. The councils couldpromotecomputer technology and moreskilled professional administrativestaffing within the courts towardthe end of improvingthe operationofthe courtsandgivingthejudges moretime to work on legal matters. Ide-ally, these and other changes wouldbring about a more active case-man-agement style by the judges thatwould reduce delays and be of imme-diate value to all who would use thecourts.Alternative

dispute resolutionIn many ways, the most immedi-ately viable responses to some ofLatin America's judicial problemsare alternative dispute resolutionmechanisms. Latin American codesof civil procedure generally alreadyallow for mediation within the legalprocess.ADR mechanisms maybe es-tablished under court-annexed or

private systems. Participation may


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JUDICIALREFORM:THE NEGLECTEDPRIORITY 69

be voluntary or mandatory, he mostextensive recent developmentin thisrealm being the mandatory media-tion implemented during early 1996in Argentina.Private ADR mechanisms may bean alternative to the formal justicesystem. Indeed, their increasingpopularity today is in large part be-cause they are a way to avoid thecorruptionand delays of the formaljustice system, thus reducing udicialcaseloads and opportunitiesfor rentseeking. ADR can involve such ser-vices as arbitration,mediation, earlyneutral evaluation, summary jurytrial,provisionof courtmaterials,andjudge-hostedsettlementconferences.There are some clear advantagesto the ADR system. When partieshave asymmetrical expectations ofwinning a case, early exchanges ofinformation can prevent delay, andwhen well-trained mediators and ar-bitrators have more specializedknowledge than court officials, therulings may be morepredictableandjust. The informal system may alsobe better because it is more private,a desirable factor when the partiesinvolvedwant to maintain a workingrelationship in the future. ADRmayalso help parties avoid court litiga-tion that might be more drawn out,expensive, and emotionallydraining.In many countries, specialized pri-vate ADR assistance is supplied forcontractand commercialdisputes bychambersofcommerce.Sometimesitis given byjustices of the peace, whomaybe electedbythe communitiesorappointed by the judicial system.These justices of the peace may havelittle formaltraining in resolvingdis-

putes, but they may usefully proposesolutions until they comeup with onethat works.25There is no absolute agreementonwhat cases should be included or ex-cluded from ADR. An evaluationmust be made as to what cases arecausing backlogsin the courtsystemand whether these particular types ofcases demand more court resourcesthan other cases in the system. Eventhough some countries have estab-lished successfulADRprograms,theissues that must still be addressedinclude the availability of mediators;whether arbitration and mediationshould be a regulated profession;whether certain training should berequired;andwhat ethical standardsthe mediators should be judged by.

CONCLUSIONFor centuries, the judicial systemin LatinAmericahas been influencedor sometimes even dominated by in-ternational forces and pressures. Onthe one hand, important LatinAmerican leaders and groups oftenhave been individually influenced by

foreign political, economic,and otherpowers through persuasion, directpressure, or perceived individual in-terests. On the other hand, through-out history certain powerful foreigngovernments and systems have hada strong direct or indirect influencethrough the impersonal interactionofeconomic, egal, and othernationalsystems and institutions. In the colo-25. Hans-JurgenBrandt,En nombrede la

paz comunal: Un andlisis de lajusticia de pazen el Peru'(Lima: Centro de InvestigacionesJudiciales, 1991).


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nial period, the major force usuallywas Spain, while today it is theUnited States or any of several othernations who participate actively inthe expansion of the free market in-ternationally or in some individualcountry. Thus today moves towardjudicial reform are inspired and im-peded by the cooperationand clashesbetween foreign and domestic inter-ests, themselves splintered becauseof competingand evolving interests.The primaryimpetus for substan-tial reform to completely overhaulthe Latin Americanjudicial systemcomes fromLatin Americanpoliticalreformers,most of them educated inthe United States, andeconomicpow-ers who wish to integrate the eco-nomicsystems of the hemisphereandthe world. Many reformers havelooked at how their countries havefailed in the past to provide for theinterests of the population; theyhave concluded that, in light of thefailures of state-dominated econo-mies all overthe world,the free mar-ket may enhance prospects for do-mestic development. But for LatinAmericato participate activelyin theinternational free market and secu-rity network, the Latin Americanju-diciarymust adaptto the practicesofthe main global powers, particularlythe United States. Many wealthyLatin Americans have suffered insome degree by the dismantling ofthe mercantilist system that broughtthem much of their wealth over thedecades, and yet many of them andothers have seen new opportunitiesfor themselves in the new order.Many who have benefited or simplysurvived in the old order,which has

been characterizedby high levels ofbureaucratic centralization, pater-nalism, and corruption,do not wantto change or are afraid to do so. It isthis thinking, in supportof what arepresumedto be personal, family,andgroupinterests, that createsthe mostserious inertia slowing down orstanding in the way of the process ofchange.Within the judicial sector, themain inertia comes from court offi-cials at all levels, who, under fre-quently unfavorableconditions,havebecome accustomed to padding theiroften small salaries by taking bribesfromlitigants, bribes that serve sim-ply to get cases broughtforward or toreach a verdict to the advantage ofthe paying party. In almost everycountry, the system has become soantiquated and, in many respects, socorrupt that delays and backlogs,taken with the corruptionand othercircumstances, have led increasingnumbers of Latin Americans to seeknon-court solutions to their legalproblems. Some are finding help inADR mechanisms, but as useful asthese are, they arefosteredprimarilyby the private sector and cannot bethe answer to the fundamental prob-lems of the judicial system. A nationneeds an efficiently functioning judi-ciary to defend legitimate relationsbetween citizens and to correct ille-gitimate relations between them, re-gardless of their income levels. Work-ing together,the judicial system andADR canfoster the much-neededbal-ance between equity and efficiencyinthe provision ofjustice which todayisrarely found in Latin America. Thecurrent crisis of the judicial system,


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Judicial Reform, The Neglected Priority in Latin America

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