Vol. 16 No. 5 (May, 2006) pp.391-395

 

LATIN AMERICAN LAWYERS. A HISTORICAL INTRODUCTION, by Rogelio Pérez-Perdomo. Stanford, CA: Stanford University Press, 2006. 184pp. Cloth. $50.00. ISBN: 0-8047-5126-9.

 

Reviewed by Julio Ríos-Figueroa, Department of Politics, New York University. Email: jrf246 [at] nyu.edu.

 

Over the last three decades virtually all Latin American countries have reformed their legal systems. The range of reform is as broad as the region, including changes in tenure, appointment, and impeachment procedures for judges; creation of judicial councils, constitutional courts, and autonomous prosecutorial bodies; creation of alternative dispute resolution mechanisms, adoption of oral trials, and improvements in information transparency; and, changes in legal education, law schools, and bar associations. The previous list is ordered, roughly, according to the degree of attention that political scientists have devoted to these different areas of reform. Rogelio Pérez-Perdomo, a prominent Latin American lawyer and sociologist of law, has written a book that synthesizes the existing knowledge about this last, important but neglected topic on the list: the legal profession in Latin America.

 

Pérez-Perdomo has first-hand knowledge because he has been an active participant in the movements to reform legal education and the administration of justice in Latin America since the 1970s. After obtaining his law degree in 1964 at the Universidad Central of Caracas, Pérez-Perdomo continued his education at Harvard and the Sorbonne. He has written extensively on the legal profession and litigation. The author thus brings to this book not only extensive practical knowledge but also an impressive record of scholarship.

 

The book starts from the premise that lawyers are crucial to understanding state legal systems and societies. “They have special knowledge and skills to operate the legal and political system, and their role is to articulate for the individuals and business within the state” (p.viii). As Pérez-Perdomo points out, the novelty of the book is its scope, which covers the history of Latin American lawyers over five hundred years and across eighteen countries. There is already an abundant literature on the legal profession in each country of the region, but these national studies are written from many different perspectives and tend to center on lawyers’ political role or contribution to the local legal community. In contrast, this book attempts to synthesize existing knowledge around “the relation of lawyers and politics” proposing “to connect occupation, knowledge, and political role” (p.viii). As the author puts it, “the enterprise is like the task of creating a picture of a landscape using pieces of photographs from different places, taken by various photographers at different times and from different angles” (p.51). [*392]

 

Pérez-Perdomo successfully achieves the daunting task of synthesis. In four chapters and relatively few pages, he lays out the main themes regarding the role of lawyers in the civil law tradition (chapter one), the complex relation of lawyers in the colonies with the Spanish and Portuguese crowns (chapter two), the important role of lawyers during the wars of independence and the rise of new nation-states (chapter three), and the more recent role of lawyers in the region’s development since the 1950s (chapter four). Three recurrent themes can be identified as the backbone of the book: the relative growth in the legal profession in Latin American societies since colonial times, their persistent relations with political power, and the fact that changes in legal education have tended to correspond to crucial breaks in Latin American history.

 

The relative number of lawyers in Latin American countries has been steadily increasing. Data are scarce, especially for earlier periods, but figures from the last twenty years of Spanish colonial rule (1790-1810) show that the average number of lawyers per 100,000 habitants was about 10 (p.33). By around 1940, the average had increased to a not particularly impressive 38 (p.86). But a boom has taken place since the 1950s, pushing the average by the year 2000 to 189 (p.114). That average masks important differences across countries, however,  since the number of lawyers per 100,000 habitants varies from 85 in Ecuador (1991 data) to 345 in Argentina (2001 data; a figure close to that of the United States with 379 lawyers that same year, according to the American Bar Association).

           

The relation of lawyers to political power has also changed significantly over time. Pérez-Perdomo argues that, during the colonial period, being a lawyer was more a matter of honor and status than a profession that was necessary to practice the law. Judges did not need to be lawyers, who rather usually advised the former, and in practice lawyers were not necessary for legal representation; indeed, in some tribunals their appearance was even prohibited (pp.19-23). In contrast, after 1808 lawyers were working on providing legal justification for the wars of independence (p.46) and later became active participants in the “construction of nations” by writing constitutions, codes, and legislation of the new states (pp.53-69). These constitutions were of different ideological strands, including some authoritarian ones, but there were lawyers participating in all of them (see Gargarella 2005). After 1950, Pérez-Perdomo argues, the practice of law became more of a profession, a way of earning one’s life. While the State continued to be the main employer of legal professionals, their specialized knowledge became increasingly necessary for a bigger and more complex legal system. It has only been during the last thirty years that the private practice of law has expanded beyond serving the interests of lawyers’ traditional clients: the wealthy elite and big corporations (pp.116-120). 

 

Legal education is the other main issue that is recurrent through the book. Pérez-Perdomo emphasizes the change in conception of law over the nineteenth century, from the “casuist” or case-centered view that prevailed during the [*393] colony and the first years after independence to the “rational expression of the will of the people” characteristic of the 1890s (pp.67-69). The author interestingly traces this change by contrasting the law curricula at the beginning of the nineteenth and twentieth centuries in order to show the effects of codification efforts that took place during the nineteenth century in the way law was conceived and taught (pp.75-77). This topic appears again in the last chapter, in which Pérez-Perdomo discusses current efforts to reform legal education in the region, including providing lawyers with case materials and discussing the substance of law, rather than following the path of traditional legal education, which had focused on rote memorization of legal codes (pp.102-113).

 

Added together, these trends raise a number of interesting questions. To mention one, the increasing proportion of lawyers in Latin American society, coupled with the recent efforts to change legal education, may help to produce what Charles Epp (1998) called the “support structure” for a “rights revolution” in the region. Across Latin America there is interesting variation in institutional structures, and as Pérez-Perdomo shows, also interesting variations in the number of lawyers, legal education, and their political role. There are studies on Argentina, for example, that show that the participation of a wide coalition of societal forces has proved crucial for maintaining judicial independence (Chavez 2004), and promoting the rule of law (Smulovitz 2003). And Argentina, as mentioned above, is the Latin American country with the largest relative number of lawyers. Further comparative research on the combination of political conditions, institutional reforms, and societal forces in the construction of the rule of law seems worth pursuing.

 

Perhaps because of its ambitious scope, however, the book lacks a comprehensive theory linking the different chapters, leaving this role to chronological succession. In this regard, the absence of a theoretical introduction and a general conclusion summarizing the main findings are particularly conspicuous. To be fair, the author explains in the Preface that the book grew out of four lectures given at the Universidad Diego Portales in Santiago, Chile, so that the discrete nature of the chapters corresponds to their origin. Each chapter constitutes a rich mine of research questions and data that could be exploited more systematically by other scholars interested in the relation between lawyers and politics especially, but not exclusively, in Latin America.

 

One such theme is judges. In a book on the history of lawyers over five hundred years across eighteen countries, the relatively infrequent discussion of judges is remarkable. It is only at the end of the book, devoted to the past three decades, that the author addresses the role of judges directly. This speaks volumes about the relative importance of judges in the region until recently. Nevertheless, judges were important political actors during colonial times, but, because they did not need to be lawyers, Pérez-Perdomo regrettably does not dedicate more attention to them. In chapter two, he offers the interesting [*394] observation that during the colonial era, recourse to courts – Audiencias, Consejos de Indias, special tribunals, and other similar institutions that follow the “logic of the triad” (Shapiro 1981) – was greater than the demand for lawyers. From a political science perspective, I found the high degree of litigiousness and what is now called “judicialization” fascinating, since many conflicts on day-to-day as well as top political issues were settled in court-like forums during this period (cf. pp.34-37).  A longer perspective of the current phenomenon of judicialization raises questions about economic, social structure, institutional, and ideological issues as determinants of the degree of litigiousness.

 

After independence, turbulent political conditions throughout the region coincided with the codification boom and the idea that judges should merely apply the law to particular cases, contributing to their political irrelevance. Throughout the twentieth century, and continuing today, military coups, court packing, and subordination of lower court judges have limited the role of judges in Latin America. However, as Pérez-Perdomo argues, the last rounds of attacks on judges respond more to their increasing importance in the political sphere and less to the traditional view of judges as mechanical appliers of the will of legislators to particular cases (pp.126-131). This new role of courts and judges is, in part, explained by the rise of constitutional adjudication in the region that is becoming a vibrant area of research among political scientists interested in Latin America.

  

To conclude, Pérez-Perdomo combines scholarship with first-hand knowledge to successfully synthesize for the first time a multitude of national studies on the history of lawyers that vary in goal, approach, and depth. In addition, he opens a number of avenues for future research, not only for political scientists but for historians, lawyers, and sociologists of law as well. This volume constitutes an important academic contribution as well as a fascinating long term perspective into a profession that is crucial for the conduct of modern states and the improvement of justice and the rule of law in Latin America.

 

REFERENCES:

Chavez, Rebecca Bill. 2004. THE RULE OF LAW IN NASCENT DEMOCRACIES: JUDICIAL POLITICS IN ARGENTINA, Stanford: Stanford University Press.

 

Epp, Charles R. 1998. THE RIGHTS REVOLUTION: LAWYERS, ACTIVISTS, AND SUPREME COURTS IN COMPARATIVE PERSPECTIVE. Chicago: University of

Chicago Press.

 

Gargarella, Roberto. 2005. “The Constitution of Inequality: Constitutionalism in the Americas, 1776-1860.”  3 INTERNATIONAL JOURNAL OF CONSTITUTIONAL LAW 1-23.

 

Shapiro, Martin. 1981. COURTS. A COMPARATIVE AND POLITICAL ANALYSIS, Chicago: University of Chicago Press. [*395]

 

Smulovitz, Catalina. 2003. “How Can the Rule of Law Rule? Cost Imposition Through Decentralized Mechanisms.” In José María Maravall and Adam Przeworski (eds.), DEMOCRACY AND THE RULE OF LAW.  New York: Cambridge University Press.

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© Copyright 2006 by the author, Julio Ríos-Figueroa.