City Libraries, City of Gold Coast

Judges beyond politics in democracy and dictatorship, lessons from Chile, Lisa Hilbink

eng

index present

non fiction

Judges beyond politics in democracy and dictatorship

dictionaries

Lisa Hilbink

Cambridge studies in law and society

lessons from Chile

Why did formerly independent Chilean judges, trained under and appointed by democratic governments, facilitate and condone the illiberal, antidemocratic, and anti-legal policies of the Pinochet regime? Challenging the assumption that adjudication in non-democratic settings is fundamentally different and less puzzling than it is in democratic regimes, this 2007 book offers a longitudinal analysis of judicial behavior, demonstrating striking continuity in judicial performance across regimes in Chile. The work explores the relevance of judges' personal policy preferences, social class, and legal philosophy, but argues that institutional factors best explain the persistent failure of judges to take stands in defense of rights and rule of law principles. Specifically, the institutional structure and ideology of the Chilean judiciary, grounded in the ideal of judicial apoliticism, furnished judges with professional understandings and incentives that left them unequipped and disinclined to take stands in defense of liberal democratic principles, before, during, and after the authoritarian interlude

Table of Contents Introduction Overview of the Argument Methodology and Data Reporting Plan of the Book Chapter One: 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 Chapter Two: The Institutional Construction of the Judicial Role in Chile Law and Courts in Colonial Times and Early Independence Law and Courts under the Portalian Republic Law and Courts before and during the Parliamentary Republic The Judiciary in the Constitutional Transition: 1924 -- 32 The Development of Conservative Judicial Activism from 1932 to the 1960s Conclusion Chapter Three:Conservative Activism in the Heyday of Democracy, 1964 ---1973 The Judicial Role in the Frei and Allende Years Explaining the Judicial Role under Frei and Allende Conclusion Chapter Four: Legitimizing Authoritarianism, 1973 -- 1990 Part I: 1973 -- 1980: "The Rule of Law Show" The Military Government's Approach to Law Judicial Response to Military Law and Policy 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, 1973 -- 1980 Part II: 1981 -- 1990: The "New Institutional Order" The Military Government's Approach to Law The Judicial Response to Military Law and Policy Habeas Corpus (Amparo)170 Constitutional Review I: Recursos de Protección174 Constitutional Review (Inaplicabilidad por Inconstitucionalidad) High Profile Public Law Cases Summary, 1973 ---1980 Part III: Explaining the Judicial Role under Pinochet Regime-related Factors Political Attitudes and Preferences Legal Philosophy Institutional Structure and Ideology Conclusion Chapter Five: Continuity and Change after the Return to Democracy, 1990 -- 2000 Democratic-Era Efforts to Liberalize Law and Justice The Judicial Role in the 1990s Decisions in Authoritarian-Era Rights Cases Decisions in Post-Authoritarian Rights Cases Explaining the Judicial Role in the New Democracy Conclusion Chapter Six: 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

Judges beyond Politics in Democracy & Dictatorship