JUDGES BEYOND POLITICS IN DEMOCRACY AND DICTATORSHIP

Vol. 18 No. 5 (May, 2008) pp.435-437

JUDGES BEYOND POLITICS IN DEMOCRACY AND DICTATORSHIP: LESSONS FROM CHILE, by Lisa Hilbink. New York: Cambridge University Press, 2007. 316pp. Cloth. $80.00/£45.00. ISBN: 9780521876643. eBook format. $64.00. ISBN: 9780511292859.

Reviewed by Jeffrey K. Staton, Department of Political Science, Emory University. Email: jeffrey.staton [at] emory.edu.

Lisa Hilbink opens her JUDGES BEYOND POLITICS IN DEMOCRACY AND DICTATORSHIP: LESSONS FROM CHILE by asking why judges trained during a period of robust Chilean democracy facilitated the human rights violations of the Pinochet regime by deferring completely to the government’s authority over public security and order matters. In the first few pages, Hilbink dispenses with an obvious potential explanation – that judges were pressured by the military into abandoning a commitment to human rights. Hilbink demonstrates that Chilean judges allowed significant governmental restrictions on individual rights not related to the holding of property long before 1973 and continued to do so after the transition back to democracy. This critical piece of evidence transforms the book’s central research question from a relatively narrow concern for judicial deference under authoritarianism to a more general concern for why Chilean judges have historically failed to constrain the Chilean state. The answer, we learn, turns on the institutional structure of the judiciary and how that structure perpetuated a narrow 19th century conception of judicially cognizable rights.

The book’s content nicely reflects the decade of research the author devoted to the project. It provides an historically rich yet accessible account of the Chilean judiciary’s role in politics across two centuries, derived from careful archival work and more than one hundred interviews with scholars, justice ministers and judges. JUDGES BEYOND POLITICS can be used effectively in both undergraduate and graduate courses on law and politics, Latin American politics or political institutions. I wish to summarize Hilbink’s argument and highlight how she evaluates competing explanations. Despite a small conceptual concern I wish to raise, JUDGES BEYOND POLITICS delivers on its promise to identify how institutions, in concert with particular ideological proclivities, can powerfully influence legal constraints on political power.

Hilbink’s explanation centers on rules that guide judicial appointment and promotion. The Supreme Court enjoys extraordinary control over judicial career trajectories. The Court conducts yearly performance evaluations for the entire lower judiciary and is responsible for retention and promotion. In fact, although the president appoints the Supreme Court, the Court itself provides the slate of nominees, which gives it nearly complete control over its succession. Two primary consequences resulted from this structure. First, by [*436] rewarding judges that reflected the Supreme Court’s own deferential view of the law and punishing those who pushed new interpretative theories, the Court created strong incentives for lower court judges to behave largely as it desired. Hilbink demonstrates persuasively that judges who fell out of step were simply purged through negative performance evaluations. Second, giving the Supreme Court control over its successors made it impossible to radically change the Court itself. In short, institutions of judicial administration ensured that the Supreme Court’s preferences were relatively stable over time and that the judiciary as a whole reflected those preferences well.

On its own, however, the institutional element to the argument can only do so much work, because it stops short of predicting what type of individual rights protections we ought to expect. We only know that whatever these protections are, they should reflect what the Supreme Court wanted. For this reason, the second piece of Hilbink’s argument is ideological. The author suggests that the dominant “institutional ideology” in the Chilean judiciary holds that judges should restrict themselves largely to the resolution of private law problems (violations of property rights and contractual obligations) and give great deference to government in the context of public law problems (protection of order, security and morality). In Chile, to do otherwise is to be an illegitimate, “political” judge. Hilbink provides considerable evidence in Chapter 2 that this conception of the judicial role reflected a 19th century notion of what violations afford judicial remedy, and when the Court was given administrative control over its inferiors in the 1920s, this ideology was frozen into the judiciary. Appointment and promotion rules locked-in an antiquated conception of rights, and it is this combination of institutions and ideology that explains the Chilean judiciary’s failure to protect human rights.

JUDGES BEYOND POLITICS is most persuasive when Hilbink addresses alternative and quite plausible class and legal explanations for the behavior she observes. The class explanation suggests that the Chilean judiciary has historically reflected the interests of the landed elite, and for this reason, we should observe strong protections for property rights but little protection for civil and political rights, especially for individuals mobilizing to change Chile’s economic structure. Although Hilbink finds that judges of the 19th century were indeed drawn largely from the oligarchy, she shows that by the 1960s Chilean judges had been overwhelmingly raised by families in the lower-middle to middle classes. Thus, a straightforward class-based account cannot explain the judiciary’s behavior.

The legal explanation Hilbink addresses suggests that Chilean judges are guided by a strongly positivist legal theory, which “renders [them] insensitive to the substantive content of the laws they apply, and unconcerned about the outcomes of their decisions” (p.166). By carefully identifying ways in which Chilean judges have given expansive interpretation to statutes, interpretations that go well beyond the clear language of the law, but only when coming to a result that favored the protection of property rights, Hilbink suggests that it cannot be positivism per se that explains the historical trends she observes. [*437]

Despite the overall persuasiveness of the book, perhaps because it is so persuasive, I believe it is worth raising a question about a key concept in the analysis. Hilbink’s attempt to distinguish between an “ideological” concept, as, for example, we find in Segal and Spaeth (2002) and the “institutional ideological” concept that she advances. The institutional ideology of the judiciary, as discussed on pages 37-38, is an ideology of “anti-politics.” As I have discussed above, it envisions a judicial role in which courts give high deference to government over public order and security policies but closely scrutinize policy choices in the context of property rights or contractual obligations.

The concern here is that this anti-politics ideology seems indistinguishable from a concept of conservatism in which judges simply prefer a world characterized by 19th century policies concerning economic liberty and social control. In other words, it is possible that the “institutional ideology” of deference over public law concerns merely hides familiar ideological preferences, as Segal and Spaeth would suggest. Highlighting this ambiguity in the text itself, on page 39, Hilbink notes that the “central claim of this book is that institutional features of the Chilean judiciary promoted a conservative bias among judges” [my emphasis]. In order to keep the concepts of ideology and institutional ideology distinct, a more precise summary might be that the institutional ideology of anti-politics, in the context of Chilean institutions of judicial appointment and promotion, induced a conservative bias in judicial outcomes. Either way, it strikes me that this adds a bit more complexity to the argument than is needed or can be supported by the evidence. Without an independent measure of ideology (either in the conservative-liberal sense or whatever would make sense in Chile), which Hilbink does not have, it is not clear what we gain by invoking this new ideological concept. No doubt it matches the way that Chilean judges talk about the judicial role, but it does not take us conceptually much beyond the political ideology concept judicial scholars typically adopt.

Despite this minor concern, JUDGES BEYOND POLITICS represents an excellent contribution to the literature on comparative judicial politics. The argument is highly plausible, and Hilbink’s efforts to rule out alternative explanations are extremely persuasive. This is clearly a must read for anyone in judicial politics who focuses on Latin America.

REFERENCES:

Segal, Jeffrey A. and Harold J. Spaeth. 2002. THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED. Cambridge: Cambridge University Press.

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