Legalization, Judicialization, Lawfare: On the Light Side and the Dark Side of the Turn to Law

Annual Review of Law and Social Science · 2025-06-04

The turn to law in recent decades has generated multiple debates about its potential consequences. Some authors have emphasized its positive effects—the “light side”—whereas others have highlighted its negative effects—the “dark side.” In many cases, the decision to classify phenomena related to the turn to law on one side or the other has been driven more by the purely normative criteria of the authors than by systematic empirical distinctions. We suggest that terms such as legalization, judicialization, and lawfare, when stripped of their normative charge, can help clarify a discussion fraught with concepts created to describe what we disfavor. Furthermore, we argue that whether a phenomenon related to the turn to law falls on the light or dark side depends on contingent factors, so that we cannot say a priori whether embracing legal strategies will carry negative consequences. We illustrate the argument with discussions on fundamental rights, democratic regimes, and public policy.

Chapter 2 Paradoxical Informalities? On the Mutual Logic of Informal Relationships and Institutions

Edinburgh University Press eBooks · 2025-01-03

Inequality, Institutions, and the Rule of Law: The Social and Institutional Bases of Rights

Texas ScholarWorks (Texas Digital Library) · 2024-01-01 · 33 citations

Abstract This article elaborates and tests a theory connecting the high levels of inequality in many Latin American states to the failure to develop mechanisms to effectively protect and enforce formal rights enshrined in constitutions and laws. I argue that, in order to become effective, rights require the development of a network of ancillary supporting institutions, both formal and informal. Both engaging with these supporting institutions and developing them in the first place requires resources which many marginalized groups simply do not have. I apply the theory to data on the prosecution of police violence, as well as to a more general overview of legal and constitutional developments in the region. Resumen Este artículo presenta y testea una teoría que atribuye la inhabilidad de muchos estados latinoamericanos de desarrollar mecanismos efectivos para la protección de derechos formales establecidos en constituciones y leyes, a los altos niveles de desigualdad en dichos estados. El argumento es que, para volverse efectivos, los derechos formales requieren el desarrollo de una red de instituciones auxiliares, formales e informales, que los apoyen. Tanto como para crear, como para hacer uso de dichas instituciones de apoyo, hacen falta recursos materiales, políticos y sociales que muchos grupos marginalizados simplemente no tienen. Aplico la teoría a una serie de datos sobre la persecución penal de la violencia policial, y también a un repaso a grandes rasgos de desarrollos legales y constitucionales en la región.

Which Constitutional Provisions are Most Important?

SSRN Electronic Journal · 2024-01-01

Which Constitutional Provisions Are Most Important?

European journal of empirical legal studies · 2024-05-13 · 4 citations

National constitutions codify provisions on a wide range of topics, ranging from presidential term limits to the country’s flag. But are all constitutional provisions equally important? Some are likely to be particularly consequential for how governments function, while others are likely to be largely symbolic. To date, there has been little research on the relative importance of constitutional provisions. To explore current thinking on this subject, we assembled a group of twelve comparative constitutional scholars to rate the relative importance of 340 constitutional provisions to the functioning of a country’s government. These aggregate ratings make three contributions to constitutional studies: (1) provide evidence on the current state of academic thought on the comparative importance of constitutional provisions; (2) establish an index of constitutional importance to be used in future research projects; and (3) offer a roadmap that could help direct research to provisions that may be more likely to have significant impacts on governance-related outcomes.

The Politics of Judicial Impact in Social and Economic Rights Cases

Oxford University Press eBooks · 2023-03-22 · 3 citations

Abstract Can courts advance social and economic rights (SER)? This chapter defines judicial impact and argues that courts produce it by transforming the normative framework and affecting the relationships among actors in three different fields—social, political, and legal—through four different effects—ideational, discursive, organizational, and material. The chapter discusses three differing views of the role of courts in realizing rights in the literature. First, those that argue judicial interventions are counterproductive and may set back the goals SER are ostensibly meant to advance; second, those that view courts as at best irrelevant; and third, those that contend that courts can—under certain conditions—make positive contributions to the goals that SER appear meant to advance. This chapter is squarely in the third camp, arguing that any effectiveness courts can have in advancing SER hinges less on the courts and what they do and more on the politics of impact that follows the courts’ decisions. Impact, according to this chapter, is co-produced by state and social actors working with courts, in a dynamic political process that begins even before a decision is handed down and extends afterward. The concluding section provides examples from the literature to illustrate the different pathways through which courts can affect outcomes.

Social Rights Constitutionalism

Oxford University Press eBooks · 2022-01-13 · 1 citations

Abstract Latin America is at the forefront of global developments in the constitutionalization and judicial enforcement of social and economic rights (SER). Latin American countries have long included a robust set of SER in their constitutions, and in recent decades have only added more rights and stronger judicial enforcement mechanisms to their foundational texts. As a result, although many courts around the world have taken up the banner of SER, Latin American courts are contributing doctrinal innovation and concrete examples of SER enforcement at a rate and in a manner that eclipses other regions. This chapter first shows the trend toward social rights constitutionalism in the region as found in the foundational texts. It argues that Latin American constitutionalism today marks quite significant transformation of the relationship between ordinary politics and constitutional justice, as a direct result of the constitutionalization of SER and the judicialization of their enforcement. It concludes by exploring the way in which Latin American courts have attempted to overcome some of the challenges of SER enforcement.

Index

Cambridge University Press eBooks · 2022-08-11

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LATEINAMERIKA / LATIN AMERICA

Verfassung in Recht und Übersee · 2022-01-01

Legal Tolls and the Rule of Law: The Judicial Response to Police Killings in South America

Figshare · 2022-09-15 · 3 citations

This dissertation addresses core issues relating to law and democracy in Latin America. The judicial response to continuing high levels of police violence in Latin America is the empirical context used to explore the oft-mentioned but little studied gap between the law on the books and the law in practice in the region. The theoretical chapter presents a model that is applicable to many of the problems usually placed under the 'rule of law' rubric, while the empirical chapters contribute new information on one of the key problems faced by these legal systems, the effectiveness and enforcement of civil rights. The dissertation addresses such key themes as equality before the law, access to justice, judicial independence and legal reform. The dissertation relies partly on an original database documenting the outcome of approximately 500 cases of police violence ending in death in Buenos Aires and C—rdoba, Argentina, São Paulo and Salvador, Brazil, and all of Uruguay. The database includes information about the case, the victims, the perpetrators, and all the legal actors involved. This information is used to measure levels of effectiveness and inequality within and across social groups, cities, and countries. The comparison of five cities across three countries, in provincial and federal legal systems, allows controls on a wide variety of social, economic, political and institutional variables. Beginning with a heuristic model of the process of legal decision-making, and deriving implications for legal effectiveness from this model, the dissertation argues that disparate outcomes across cases are caused primarily by gaps in the supply of information to the legal system, compounded in certain systems by normative failures on the part of key decision-makers. It includes insights into possible institutional arrangements that might produce better results.