GLOBALIZATION AND JUDICIAL REFORM IN LATIN AMERICA

GLOBALIZATION, JUDICIAL REFORM AND THE RULE OF LAW IN LATIN AMERICA
The Retum of Law and Development
Csar Rodriguez*
lntroduction Globalization, Legal Reform and the Rule of Law

As recent critica1 studies on globalization have adequately shown (Hawey, 2000; McMichael, 2000), the current phase of expansion of global capital is not a self-regulating process. Indeed, despite the clairns of the neoliberal discourse of deregulation that has fueled globalization, the opening of rnarkets across the world has been based upon the ernergence of new forrns of regulation that have facilitated the intensification of flows of goods, services and capital across borders. Globalization cannot proceed without the pro-capital legal architecture ernbedded in such institutions as the World Trade Organization. Nor could it take place, as Garth and Dezalay (1998) have shown, without the assistance of a legion of international private lawyers at the sewice of transnational corporations. In sum, far frorn becorning rnarginal, law and legal reforrn gain particular relevance under the conditions of globalization. The relevance of legal reforrh for the advancernent of the neoliberal agenda has becorne evident in the last few years. In a recent conference followed by a short publication entitled Globalization and the Rule o/ Law, Jeffrey Sachs -who as a private consultant and as Director of the Haward Institute for Intemational Developrnent
University of Los Andes (Bogota, Colombia) and New York University. In writing this paper, 1 set out to tackle the questions that arose in conversations with Boaventura de Sousa Santos and Gabnel Cmez in the context of a collective research project on justice in Colombia between 1995 and 1998. The results of such a project have been recently published (Santos and Garca 2001). 1 am grateful to both of them for shanng with me generously their work on judicial reform in Colombia and for supporting unconditionally my research on globalization and law.
BEYOND LAW, Vol.7 - Issue # 23 - February 2001, ILSA, Bogot D.C., Colombia
has designed structural adjustment programs across the world, from that of Bolivia in the late 1980s to that of Russia in the mid-1990s- explicitly connected neoliberal globalization to the promotion of legal reforms aimed at strengthening the mle of law. In Sachs's view, the rule of law is indispensable for the smooth operation of markets for two reasons. First, at the national level, the rule of law creates a stable, predictable environment for capital investment and a reliable institutional setting in which courts efficiently protect property rights. Second, at the international level, a "global mle of law" -which, for Sachs, is paradigrnatically represented by the World Trade Organization- provides the regulatory framework that facilitatesinternational transactions (Sachs, 1999). Thus, in Sachs's opinion, developing countries throughout the world should embark on wide-ranging legal and judicial reforms aimed at strengthening the mle of law, thus attracting foreign investment. Similarly, the international community should continue to develop the incipient legal framework that currently provides the conditions for the existence of a global economy. Sachs's view constitutes a clear illustration of the dominant discourse on globalization and law that gained momentum in the 1990s. This line of thought -which, as 1 will show below, has also influenced the programs of legal reform recently undertaken in Latin America by such agencies as the World Bank and the Inter-American Development Bank (1DB)- has come under increasing criticism from progressive scholars and activists in developing and developed countries. Despite the discourse of neutrality and technicality in which such arguments as Sachs's are made, theones and policies that advocate legal reform under the conditions of globalization may be highly problematic, and indeed may end up being detrimental to progressive agendas. As it is presented in the dominant discourse, the rule of law appears as a set of norms and institutions guaranteeing the sanctity of contracts and the protection of pnvate property. In this cense, such a version of the rule of law, and the judicial reforms implemented to reinforce it, make part of what Santos (1999) has aptly called "low intensity democracy," i.e., a set of formal standards facilitating capital accumulation that fails to provide opportunities for progressive legal mobilization and political participation. Therefore, the emancipatory potential of the rule of law -as represented, for instance, by an activist judiciary enforcing constitutional rights that empower citizens to fight state abuses and economic inequality- tends to be marginalized and eventually excluded from legal reform theories and programs. Against this background, putting into question legal reforms facilitating the process of economic globalization becomes a necessary task. In the Latin American context, such a task is urgent, given the proliferation of legal reforms aimed at transforming a wide array of institutions -e.g. law schools, prosecutors' offices, and courts. As 1 will show below in more detail, such reforms have been implemented in the last two decades by national govemments and intemational financia1 institutions such as the World Bank and IDB. In my view, the best way to start looking into such reforms is by putting them in context. In this paper, 1intend to contnbute to a critica1 approach to the contemporary discourse and programs regarding legal reform in Latin Amenca by placing
the m in the historical context of law and development theories and policies. As 1 wil1 show below, debates around the role of law in development have inspired progra ms of legal reform in the region since the mid-1960s. Thus, far from being a new pht:nomenon, current programs and discourses on legal reform can be seen as the rev ival of law and development thought and action, which had declined in the mid197'Os. Placing contemporary legal reforms in Latin America in the context of law and de\relopment contributes decisively to a critical, yet constructive, view of such reforims for two different reasons. First, it allows us to learn from the lessons of the failures of similar programs in the past. Second, it provides us with a historical backagainst which we can adequately answer the following fundamental quesgro~und 1s. ti01 What is new about the programs of legal reform promoted by such agencies S the World Bank and IDB in Latin America in the 1990s? How are their ideological iundations, as well as their design and implementation, similar to or different fmm iose of the law and development movement of the 1960s and 1970s? In what way are contemporary legal reform programs in Latin America related to recent developments in global capitalism? What opportunities and obstacles d o such programs create for progressive, egalitarian lawyers and political actors in the region? To start addressing these questions, in the remaining of this introduction 1 offer a brief justification of the relevance of the study of legal reform in the context of law and development and present the plan for the rest of the paper.
Legal Reform in Context: Law and development theories and programs in Latin America
As shown by the recent literature on the relationship between law and development, any writing on this topic has to begin today by offering convincing arguments to support its pertinence (Tamanaha, 1995; Cao, 1997; Chibundu, 1997). Indeed, taking u p the issue as a subject for research and public debate appears to be an anachronism, since law and development is generally viewed as a movement confined to a distinct historical period (early 1960s to mid-1970s), characterized by the political circumstances of the Cold War and the ideological dominance of modernization theory (Trubek and Galanter, 1974: 1065). Moreover, there is hardly any trend in the realm of sociolegal polky and research whose death has been as widely documented (and, oftentimes, desired) as law and development. In fact, the most influential works written on the topic in the 1970s may be seen as attempts by former law and development practitioners to settle accounts with the past and enter a different period, characterized by self-criticism and deep skepticism about law and its role in social change, let alone in mass-scale economic development (Gardner, 1980; Trubek and Galanter, 1974). In my view, there are at least two strong reasons to engage again in the study of the relationship between law and development in Latin America. First, a simple, pragmatic argument is that law and development studies have to be undertaken
because law and development policies are happening. As 1 set out to explain below, a second generation of policies linking legal reform with economic development under the context of globalization is being implemented throughout Latin America. Such policies, which sometimes involve deep institutional restructuring of countries in the region, have been rarely discussed and assessed outside the circle of the developmenbl agencies that promote them. In fact, most of the recent literature on law and development entails, on the one hand, compilations of critical works that refer mainly to the law and development policies of the 1960s and 1970s (Carty, 1992; Adelman and Paliwala, 1993), and, on the other hand, articles that criticize the dominant pessimism in the law and development field and advance the construction of a new progressive movement that takes into account the mistakes made in the past. The latter works, however, tend to limit themselves to elaborating a theory on the role of law and development (Tamanaha, 1995; Cao, 1997), or to combining .such a view with a summary mention to seemingly disconnected policies on legal reform in the Third World (Chibundu, 1995; Ginsburg, 1995). The second reason to undertake law and development studies at the beginning of the new century and to place Latin American legal reform programs in this context is that the disenchantment with the movement in the 1970s stemmed to a large extent from events taking place in the United States, i.e., the political and social consequences of the Vietnam War and the sense of crisis that pervaded American intellectual life in that period. Thus, although the critics "attacked law-and-development scholars for their ethnocentric exportation of the liberal rule-of-law model ... they did precisely the same thing -they bequeathed to developing countries a critical attitude and methodology generated by a home-grown crisis with the rule of law" (Tamanaha, 1995: 475). From the perspective of Latin American lawyers and scholars -that is, the perspective 1am writing from-, the concrete, vital tasks related to the improvement of legal institutions and the creation of legal mechanisms empowering marginalized sectors of the population did not disappear. As Tamanaha (1995: 474) has put it, such legal actors "could not indulge in the luxury of eclectic critique. Thus, the reality and the necessity of legal development were unaffected by the paralysis in development theory." In fact, for those familiar with the reality of legal practice in the Latin America, the constructive reflection on and active promotion of legal reforms aimed at promoting social transformation in a progressive, egalitarian direction continues to be an indispensable task. In this paper, 1intend to contribute to such an endeavor by suggesting an analytical framework that connects the law and development theories and policies in Latin America in the 1960s and 1970s -which 1 will call the "first generation" of law and development- with the discourses and programs of legal reform that have been taking place throughout the region starting in the mid-1980s and early 1990s-which 1 will call the "second generation" of law and development in Latin America. In order to flesh out this analytical scheme, 1 will describe specific legal reforms that have been implemented in the region within each generation. The general argument that 1advance in this paper is twofold. First, from a descriptive point of view,
argue that there are both irnportant sirnilarities and relevant differences between the two generations of law and developrnent programs. On the one hand, 1 clairn that both generations are based upon a liberal, pro-capital belief in the need for a - sal architecture that enables the adequate operation of free markets, which in tum e seen as the engine of econornic development. In this cense, as come critica1scholS have recently argued (Harvey, 2000), there is a clear continuity between rnodernization theory -which supported the first generation of law and developrnent prograrns- and neoliberal theories of globalization (such as Sachs's) -which are supporting the second generation of law and developrnent. On the other hand, 1argue that there are some visible differences between the orientation of and the procedures used by the two generations (more on this below). Second, from a prescriptive perspective, in this paper 1criticize conternporary, second-generation programs of legal reform in Latin Arnerica because, in my view, they highly ernphasize the i'egulatory (as opposed to the ernancipatory) potential of the rule of law (Santos, 1995). In terms of Santos' (1999) typology, to which 1 referred above, 1 argue that prograrns of legal reform currently irnplernented by the IDB, the World Bank and other international development agencies focus on promoting a "low intensity" democracy and rule of law, whose rnain goal is the protection of property and capital accumulation. However, 1 also criticize pessirnistic assessments of the possibility and the desirability of strengthening the rule of law in Latin Arnerica. In fact, as a recent cornpilation of articles on the rnatter by O'Donnell, Mndez and Pinheiro (1999)clearly shows, the rule of law has an ernancipatory potential in Latin Arnerica, insofar as the popular classes and rnarginalized groups (e.g. indigenous peoples) could be ernpowered by a progressive legal framework enforced by an activist judiciary. Indeed, as Pinheiro's contribution to the above-mentioned volurne dernonstrates, the poor and the disenfranchised tend to be the rnain victirns of an inefficient judiciary, insofar as they cannot afford the alternative dispute resolution mechanisms (e.g. arbitration) that are available to the wealthy. As 1will argue in the conclusions to this paper, legal reforrn can have a positive effect on progressive agendas if it takes place through participatory rnechanisms that allow for the expression of the local circumstances and needs, and if it focuses on those areas of the legal systern that are particularly relevant to the marginalized sectors of the population e.g. access to justice, labor conflicts, and the protection of social and economic rights. In order to develop the aboire-mentioned analytical framework and substantive claims, 1will divide this paper into three parts. First, 1 will sketch the theoretical and ideological foundations of the first generation of law and development, and the projects that its practitioners carried out in Latin America. In this section, 1will also examine the criticisrns that were raised against the first generation and touch upon an alternative law and development rnovernent in the 1970s that is generally neglected in the literature on the topic and provides valuable elernents for a new approach to legal reform in Latin Arnerica. Second, 1 will analyze the emergence of new policies on legal reforrn in the late 1980s and the early 1990s, particularly those designed by the US govemrnent and sorne rnultilateral developrnent agencies to
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foster judicial reform in the region. 1 will explicitly link this second generation of law and development to the social, economic and political conditions characteristic of neoliberal globalization. In order to contribute to the empirical study of the impact of these policies, 1 will present in this section a brief case study of a program of legal reform i Colombia, one of the countries that has received most funds from n second-generation developmental agencies, particularly from the United States Agency for Intemational Development (AID). Third, 1will offer some conclusions. Finally, a note on methodology. 1 have complemented or contrasted the findings from the reading of primary and secondary sources with those obtained from empirical research, namely with interviews with persons involved in the two generations of the law and development movement. In the case of the first generation, 1 interviewed the staff of the International Center for Law in Development (ICLD) of New York. ICLD replaced in 1974 the Intemational Legal Center, i.e., the agency created by the Ford Foundation to promote the reform of legal education in Latin America in the 1960s and 1970s. Interviews were especially useful in the study of the ongoing programs of the second generation, which are yet to be fully documented. 1have talked to Fabrizio Operti from the IDB and Maria Dakolias from the World Bank. 1 have also relied on interviews carried out by Gabriel Gmez and Carolina Rondn from the Center for Sociolegal Research of the University of Los Andes (Bogot, Colombia), under the direction of Boaventura de Sousa Santos, on the unfolding of AID's program ot judicial reform in Colombia (Santos, 2001).
The First Generation of Law and Development: Modernizing legal education in Latin America
The origins of the movement and its theoretical and ideological basis
The origins of the law and development movement are embedded in the intricacies of American foreign policy vis-a-vis the Third World during the 1960s, the so-called "development decade." Due both to the rising confidence of the US about its economic and political system, and to the perceived threat of the expansion of Communism, American policy makers viewed development assistance to the poorest areas of the world as the ideal mechanism to deal with the growing gap between the First and the Third World, and to avoid the spread of the model of the Cuban revolution to other n countries, particularly i Latin Amenca. Thus, during that period American govemmental agencies and private foundations funded studies on the conditions for economic development in poor countries, i.e., in what used to be called in the midst of the Cold War the "Third World"(Trubek and Galanter, 1974: 1065; Gardner, 1980: 7). First economists and technicians, and only later lawyers, responded to the pul1 of the developmental agencies. The result in the legal field was the articulation of a definite rationale that linked modern law, namely American liberal legalism, with economic development. As Cao has argued, the theoretical basis of the law and development studies was hardly original. In fact, its pillars are to be found in Weber's
theory of rational law and the role of the latter in capitalist society (Cao, 1997: 548), and therefore partake of the broader modemization theory. Briefly put, the model of liberal legalism that from the outset dominated law and development studies was based on the following set of assumptions (Trubek and Galanter, 1974: 1071). First, society is made up of individuals who consent to the state for their own welfare. Second, law is simultaneously a means of control of the state over the individual, and a mechanism for individuals to keep the actions of the state under control. Third, rules are purposefully designed to achieve social goals, and are made through a pluralist process that allows for the representation of individual interests. Fourth, ules are applied equally to al1 individuals. Fifth, courts are the main actors of the !gal order and impartially apply the body of rules. Finally, it is assumed that people enerally obey the law. Thus defined, how does law foster~conomic development? The pioneers of the law and development movement understood by "development" a set of related -though vaguely defined and not entirely consistent- social, political and economic ?atures, such as material well-being, freedom, equality and political participation rrubek and Galanter, 1974: 1073). Scholars and policy makers viewed law as an dispensable tool to achieve this set of goals. Law entailed universal govemance through abstract rules, and hence equality. Law was an instrument to curb authoritarianism and arbitrariness, and therefore promoted individual freedom and government accountability. Finally, law could be used instrumentally to design progressive policies to further material well-being and other aspects of human welfare (Trubek and Galanter, 1974: 1074). It is important to underscore the relatively broad understanding of development and of the role of law in development that characterized the first generation. This understanding was further broadened by the first wave of self-criticism within the movement, as shown in the consensual statement of the scholars of the International Legal Center (1974: 105). Such a view contrasts with the economic view of development that prevails in the second generation of law and development, as will be shown below.
The legal education reform programs
For a number of reasons -particularly a strong belief in the conversion effect of education, and the familiarity of the law and development lawyers with academia- the programs of the first generation were aimed at radically reforming legal education in the Third World. First in Asia, then in Africa and finally in Latin America, legal education reform projects were launched mainly by AID and the Ford Foundation. However, the projects were supported financially, professionally or morally by a wide range of institutions, among which were the American Bar Association, the Intemational Legal Center, and such universities as Wisconsin, Stanford, Haward, NYU, Columbia and Yale (Gardner, 1980: 8). In Latin America, major programs were carried out in Brazil, Chile and Colombia. In Brazil, starting in 1965, the project to reform legal education was h n d e d by
AID and Ford and channeled through a research center created outside the existing law schools, due to the cold response of the latter to the first contacts made by AID and Ford representatives (Gardner, 1980: 62). In Chile, at the initiative of the dean of one of the country's five law schools in 1966, the Ford Foundation agreed to fund a legal education reform program that involved two other Chilean universities and was to become the largest project of this kind in Latin America (Gardner, 1980: 131). Finally, Ford Foundation representatives visited Colombian law schools between 1966 and 1967 to determine which of them would undertake a project similar to the ones already underway in Brazil and Chile. In 1968, the Ford Foundation chose five Colombian law schools that were responsive to the reform plans, and the program was formally launched (Gardner, 1980: 192). For al1 the differences among these three programs and the social and political settings of the countries involved,' they clearly shared an ideology and modus operandi. First, they limited themselves to promoting changes in legal education, either by supporting a modernizing "Trojan horse" of sorts that would penetrate the universities (as in Brazil), or by collaborating directly with selected law schools (as in Chile and Colombia). However, the proponents of the programs conceived such reforms as instruments to achieve sweeping social changes in Latin America, for they believed that lawyers trained in the spirit and techniques of American liberal legalism would constitute a critica1 mass incide the state bureaucracy and the private sector (ILC, 1975; Gardner, 1980: 59). Second, the programs originated in the US and were always controlled by American institutions. Although it is clear that the projects could not have been carried out without the participation of the Latin Amencan universities and legal centers that were involved, it is also true that such participation was usually limited, since both the goals and the mechanics of the programs corresponded to the model previously defined by American funding organizations (Gardner, 1980: 50). Third, the strategy that was deemed appropriate for the modemization of legal education in Latin America was the transplant of the American model of legal training. Indeed, the three projects evoke Alan Watson's definition of a legal transplant, i.e., "the moving of a rule or a system of rules from a country to another" (Watson, 1974: 21). First-generation law and development programs entailed this "cross-border legal move," but their object was a system of education, rather than a system of rules. It is difficult to classify these transplants according to the conventional dichotomy of invited (voluntary) and imposed legal transplants (Watson, 1974: 27; Snyder, 1982: 393). For although the transplants were not undertaken at the initiative of Latin Amencan law schools (the Chilean program being the exception), neither were they forced upon the latter. Drawing on Gardner, such transplants may be called "infused," in that they were the result of "premeditated initia-
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While Brazil was undergoing a dictatorship and Colombia was under democratic rule limited by a bipartisan political pact, Chile's political setting shifted dramatically during the period of the project, from liberal democracy (Frei) to socialist democracy (Allende), and finally to autocratic rule (Pinochet).
and encouragement... from the exporting legal culture, often with selective par~ation the part of the recipient culture" (1980: 33). on As to its content, the transplant had four components. First, it entailed the transsion of the Socratic method of teaching, which was meant to replace the lecturemis: cenl!ered method that prevailed in Latin America and had been inherited from Europc?an legal cultures. Second, it promoted the analysis of legal cases and court deciisions, as opposed to the systematic study of statutory rules that is a quintessential feature of civil law legal education. Third, it involved the promotion of the view of 1iaw as an instrument, as a set of tools for the achievement of self-consciously selected purposes. This conception of law -which has clear affinities with that of Am erican legal realism- contrasted sharply with the one inherited from the Europealn systems, according to which law is a set of formal and univocal rules that strain the behavior of private and public actors. Finally, and in close relation con! wit1I the latter, the model advanced the view of the lawyer as a social engineer, as a who would be able to use his legal expertise in a creative fashion to trou~bleshooter solvIe multifarious social problems. This model, again, contrasted with the Latin Am erican (and, in general, the civil law) conception of lawyers as impartial guardians; of the legal order (Gardner, 1980: 14). The programs greatly stressed the two first aspects of the model, i.e., the transission of a system of teaching that combined the Socratic method with the analysis selected cases. First-generation law and development scholars and policy makers blieved -as Trubek and Calanter (1974) have argued- that there was an intimate ~nnection between all the elements of the liberal model of law, so that promoting e transfer of one of such elements in recipient countries (i.e. the American teaching method) could trigger the transformation of the remaining areas of the legal field. Therefore, large sums of money (about US$5 million) were granted, among other things, to send American visiting professors to teach in Latin American universities and trailI local professors in the case method, as well as to sponsor the participation of Latin Am erican scholars in seminars on methodology in American universities. What were the results of these programs? There seems to be a consensus about the overall failure of the efforts of the first generation to modernize Latin American legal education after the model of American legal liberalism. The assessment of the projects carried out both by the institutions (ILC, 1974) and the individuals involved in them (Trubek and Galanter, 1974Cardner, 1980) showed a clear sense of despair by the mid-1970s. If, according to Watson, "a successful legal transplant [grows] in its new body, and become[s] part of that body just as the rule or institution would h: rve continued to develop in its parent system" (1974: 27), then certainly the transPI ant of American legal education to Latin America was not successful. This is partic:ularly true in the areas that were emphasized by the programs. Neither the Socratic ethod nor the analysis of cases was embraced by most of the participant Latin merican law schools, let alone by the legal community at large. Indeed, legal edu~tion most Latin American universities is characterized today by the predomiin nance of lectures and the study of codes. Meanwhile, the transplant of the two other
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components of the model -i.e. the instrumentalist conception of law and lawyersturned out to be unsuccessful or even counterproductive. Such views were indeed strategically adopted in the Brazilian and the Chilean public sectors, but to the advantage of the bureaucracy rather than of the citizenry. In fact, at least in Brazil, the instrumentalist use of law tended, in the long term, to favor the purposes of the authoritarian regime (Gardner, 1980: 125)2. According to the self-assessment of the first generation law and development practitioners, the programs failed for two reasons. Firstly, they were ethnocentric and naive, in that they unconditionally embraced the American model of legal education and set out to transplant it wholesale to Latin America, without taking into account the local legal culture and social conditions (Trubek and Galanter, 1974; Gardner, 1980).Secondly, they clashed with powerful vested interests in the preservation of traditional legal education in Latin America, for the existing system not only allowed students and professors to devote themselves only part-time to their academic activities, but also was cheaper for the law schools. As a result of the disenchantment with these and similar projects, funding for legal reform in the Third World rapidly dwindled, and law and development became a field of academic reflection, rather than of policy-making and legal services. The harsh self-critical, skeptical tone of the scholarship produced at the end of the developmental programs set the mood that would dominate the subsequent literature on law and development. Indeed, the works of both Gardner and of Trubek and Galanter -the most influential literature of this period- are but epitaphs of the movement. This explains why in 1982 Snyder could start a review of Gardner's book by saying that "the law and development movement in the United States is now almost dead" (Snyder, 1982: 373). The repercussions of the disappointment of the first generation practitioners affected not only the programs of legal reform, but also the faith in American liberal legalism in general. Essential in this result was the fact that the Latin American experience had shown that lawyers were much less committed to social change than expected, and that law could actually stimulate the reproduction of the status quo. In short, first-generation law and development programs, as Trubek and Galanter pointed out, showed the "negative face" of the law: Legal changes ostensibly designed to reform major areas of social life and achieve developmental goals may in fact be a form of symbolic politics, the effect of which is not to cause change but to defeat it by containing demands for protest, thereby strengthening, rather than weakening groups committed to the status quo. And increased instruGiven that -besides Gardner's study, which documents only the failure of the projects- there are no systematic assessments of the reforms undertaken in Brazil, Chile, and Colombia, it is difficult to find examples of the success of the progams. Such lack of information, however, does not mean that the programs were a failure altogether. For instance, in Colombia, the University of Los Andes' Law School, which had just been founded when it became part of the ,Ford Foundation program, has developed a teaching and research tradition along the lines of the American approach to legal education.
mental rationality in legal processes together with governmental regulation of economic life may contribute to the economic well-being of only a small elite, leaving the mass no better, or even worse, off (1974: 1084). This statement already hints at the pessimistic and radically skeptical tone that would later characterize critical legal studies (CLS) and some sectors of law and society scholarship in the United States (Rodriguez, 1999). In fact, some of the law and development scholars actively participated in the foundation of CLS, and saw this transition as a move from an "imperialist" to a "post-imperialist" age in sociolegal studies (Trubek, 1990: 22).
An alternative paradigm: Law and "another development" In explicit contrast with modernization theory, scholars in Latin America and elsewhere advanced since the late 1960s a critical approach to political economy that came to be known internationally as dependency theory. Briefly put, "dependency theory argued that the sources of underdevelopment were to be found in the history and structure of the global capitalist system," rather than in factors internal to the development of countries (Tamanaha, 1995: 476). According to this view, modernization projects were doomed to failure, and were even counterproductive, because they reproduced the source of underdevelopment, i.e., the dichotomy of central (donor) countries and peripheral (recipient) countries. In the spirit of dependency theory, an alternative law and development movement emerged that put into question the rationale and the programs for the export of American liberal legalism to the Third World. The birth of this movement is directly related to the crisis of the first generation of law and development. In fact, one of its centers of operation was (and still is) the International Center for Law in Development (ICLD) of New York, the NGO that replaced the International Legal Center following the failure of the projects of legal reform in Latin America undertaken by the latter with the financial support of the Ford Foundation. Although the ICLD was established with the funds that remained from the first-generation projects of legal reform, its purposes and ideological standpoint clearly differed from the beginning from those of the modernizing projects of the International Legal Center. As the founder and director of the.ICLD, Clarence Dias, put it in our interview: After the Ford Foundation arrived at the conclusion that further projects of legal reforms were nor. to be funded, there was intense debate about whether the remaining funds should be donated to a university or devoted to trying a fresh start in a radically different direction. We chose the second option, and founded the ICLD. There were two major changes. From an administrative point of view, Third World lawyers and scholars took over the Center, and we decided to seek funding in Europe, rather than in the US From an ideological point of view, we decided to substitute a bottom-up approach to development for the t o p down perspective that dominated the projects previously ~ndertaken.~
Interview with Clarence Dias, New York, October 1998.
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The bottom-up approach invoked by this prominent Indian activist and scholar was rooted in the framework of dependency theory, particularly as reflected in a movement that arose in the 1970s under the name of "Another Development," supported, among others, by Dag Hammarskjold, a Swedish Foundation. As Yash Ghai (1978), a prominent member of such movement points out, Another Development was based on five premises. First, development must be need-oriented, i.e., it must meet the basic needs of the underprivileged majorities. Second, development must be endogenous, stemming from each society in its struggle to define its own values and future. Third, development must foster the self-reliance of Third World countries in general, and of local communities within them in particular. Fourth, development must be ecologically sound. Finally, development must secure the equal access of all to cultural and natural resources. In other words, as Dias stated in our interview, development "was to be understood in a holistic fashion, rather than as mere material well-being." Accordingly, lawyers involved in Another Development advanced an alternative account of the role of law. In their view, Western law tends to centralize power in the hands of the state, thus encouraging bureaucratization and specialization. Consequently, when transplanted to Third World countries, it tends to reduce the potential for self-reliance that exists in the informal practices of local communities, and constitutes an order that is alien to most people. Moreover, "the [Western]legal profession identifies itself with the wealthier sections of the population, its services are available for a fee, and it is based in the urban centers" (Ghai, 1978: 116). Therefore, the transplant of the Western model of lawyer from developed to underdeveloped countries would ultimately benefit the dominant classes, rather than stimulate social change. In line with this critique, law-and-another-development scholars and lawyers have argued for informal, communal varieties of regulation and dispute settlement. In their view, this type of law and justice is conducive to self-reliant economic activities and to the cultural and social strengthening of local communities. There is, then, a clear emphasis on small-scale development, instead of on the large-scale type of development envisioned by modernization theory and the first generation of law and development. However, law-and-another-development proponents have not abandoned the realm of formal law and, indeed, embrace the possibility of strategically using the legal order to a d v a k e the ideals of Another Development. "Law can be an important instrument at the service of governments committed to Another Development. If their leaders could get a mastery of the legal system and suffuse it with the new values, there is little reason why law should not become a useful ally" (Ghai, 1978: 125). In sum, the movement, rather than rejecting as a whole the ideals of the first generation of law and development, called for a careful revision of its notion of development, and for a critical -yet not pessimistic- approach to the role of law in social change. Its defenders proposed to "think more realistically about lawyers, legal systems, legal education and social change in Third World settings than did
those who originally expounded 'law and development! aspirations and assumptions" (ICLD, 1978: 138). The central questions are, then, "law for whose benefit, how administered and with what result?" (ICLD, 1978: 139). This progressive version of law and development has given rise to different projects and activities throughout the global South, carried out mainly by NGOs devoted to providing legal assistance to marginalized communities, as well as to lobbying for changes in legislation and promoting social change through adjudication (Dias, 1981: 187). However, it has had a greater impact in Southeast Asia than in Latin America, and overall it has not had the ideological and political influence of conventional law and development approaches. Thus, the intellectual and practical potential of the Law and Another Development movement has not been fully exploited. As I will argue below, given its commitment to a progressive, participatory agenda of legal reform, this approach offers precious elements for the rethinking of contemporary legal reform in Latin America. In the conclusions to this paper, I will suggest ways in which the insights of the law and another development movement can be reworked and reinforced today in order to offer an alternative approach to legal reform in general and to the judiciary in particular.
Globalization and Judicial Reform: The second generation of law and development
The origins of the second generation and its theoretical and ideological foundations
The uninterrupted activities of the ICLD of New York, and of the NGOs affiliated with it throughout the South, demonstrate that despite the perceived failure of the first generation, law and development thinking and programs did not disappear after the mid-1970s. Law-and-another-development debates and projects continued during the 1980s sometimes grappling with the familiar topic of the role of law in the improvement of life conditions in the South, sometimes overlapping with other debates and agendas, such as the promotion of international human rights law (ICJ, 1981). In fact, the intertwining of the law-and-another-development movement and the discourse of human rights gave rise to a controversial topic in international law, i.e., the question of the "right to development." Drawing on dependency theory, a number of NGOs and governmen& in the South have been advancing -through resolutions, declarations and conferences sponsored by the United Nations and other organizations- an international law of development that gives poor countries preferential treatment and entitlement to development assistance in the form of trade preferences, debt relief, low interest loans, grants, and affordable transfer of technology. Although the right to development has largely remained a utopia, it has established itself as a counter-hegemonic rhetoric vis-Bvis the discourse of the unconditional liberalization of national markets (Santos, 1995: 356). Moreover, even programs more in line with modernization theory continued in the 1980s. In fact, AID, one of the main actors of the first generation, launched in
the 1980sa program of judicial reform targeted mainly at Latin America. The project was ostensibly a response to increasing human rights violations committed by the military and the police, and focused on the modernization of the judiciary and the police. In such countries as Colombia, as will be explained below, this program was the preface to the rise of the second generation of law and development policies. The birth of the second generation is rooted in two related historical transformations. On the one hand, the fall of the Iron Curtain and of Communist governments in Eastern Europe triggered a renewed optimism about the virtues of liberal democracy and capitalism. On the other hand, the shift in Latin American economies from import substitution and state intervention to the opening of markets and the privatization of state companies in the late 1980s and early 1990s constituted a clear sign of the expansion of liberal capitalism across the Americas. By the early 1990s, then, the geopolitical scenario was propitious for the revival of law and development (Chibundu, 1997: 201; Cao, 1997: 545). Western market economies, especially that of the United States, had reemerged as dominant in the world scene. Indeed, the conditions for the spread of the rule of law and liberal capitalism were farmore favorable than in the 1960s and 1970s. For one thing, the potential recipient countries had multiplied as they included not only those that participated in the programs of the first generation, but also countries that had been hitherto excluded because they belonged to the Soviet area of influence. In sum, the recent political and economic transformations created the conditions not only for the globalization of markets for goods, services, and capital, but also for the concomitant resurgence of the question of the role of law in development. This should not come as a surprise, given that, as McMichael(2000) has forcefully argued, there is a clear affinity between the discourses and practices on development that arose in the postwar years and reached their climax in the 1960s and 1970s, on the one hand, and those that underpin globalization, on the other. Indeed, some of the main actors of the second generation of law and development are the institutions that have furthered the globalizationof the markets through the promotion of economic structural adjustment across the South. The World Bank, at the global scale, and the Inter-American Development Bank, at the regional scale, have been actively promoting legal reform programs in underdeveloped countries (Dakolias, 1996; IDB, 1993; Rowat et al., 1995).The AID is the third major actor of the second generation, at least in the Latin American context (Vaky, 1998). Other institutions that have undertaken projects in Latin America are the United Nations Development Program (Obando, 1998),and the United Nations Drug Control Program (Cortes, 1995).Finally the governments of Spain, Germany France, Great Britain and Italy, among others, also funded legal reform projects in Latin America in the 1990s (Henao, IWl).' This brief enumeration of the supporters of the second generation brings to light an important difference vis-a-vis the first generation. Unlike the relatively few
In other areas of the South, private actors (such as universities, law firms and NGOs) have also been engaged in legal reforms (Ginsburg, 1995: 7).
and interconnected programs and institutions of the 1960s and 1970s, today there are a wide range of multilateral, governmental and private actors that advance multiple reforms, oftentimes in an uncoordinated way. There is "informal dialogue," but no continuous coordination (Ginsburg, 1995: 8). The drawbacks of such a situation have recently led the different actors to call for concerted efforts (Jarquin and Camllo, 1998: vii). In Latin America, there seems to be already a certain division of labor among the supporters of the programs. While the World Bank and IDB have tended to sponsor projects related to civil and commercial law, AID has focused on the reform of criminal courts and the police. The European governments, meanwhile, have privileged programs related to the promotion of human rights. However, there are still evident overlaps, as will be shown in the explanation of the concrete programs undertaken in the region. As to the intellectual foundations of the programs, in the first generation they are based on a narrower understanding of development and on a more focused version of the role of law in development. According to the theoretical and ideological framework of this generation -built through a series of studies by both staff and consultants of the World Bank and IDEL, development is to be understood mainly in terms of economic growth, and legal reforms should be tailored to achieve that end. lbrahim Shihata, Senior Vice-president of the World Bank, has articulated this line of thought in the following terms: In Latin American and the Caribbean, as in other regions, experience has clearly demonstrated the quintessential role of law in development and, especially, the need for the rule of law and for well-functioning judicial institutions. This is particularly evident in the private sector, where the rule of law is a precondition for sectoral development. It creates certainty and predictability; it leads to lower transaction costs, greater access to capital... In fact, worldwide experience confirms the importance to rapid and sustainable development of the clarification and protection of property rights, the enforcement of contractual obligations, and the enactment and application of rigorous regulatory regimes (1995a: 13). As is apparent in this representative statement, the second generation is grounded on assumptions that resemble those of the first generation. Both generations share the pillar of modernization theory, i.e., the conviction that underdevelopment can be overcome if countries in the south adopt the institutions typical of Western capitalism and democracy. They also share the basic features of the proposed model, that is, liberal legalism as characterized earlier in this paper, and economic development through private initiative in a free market. And they view law as an important instrument for the construction of institutional settings conducive to development. On the other hand, they differ in relevant aspects. First, the conception of development of the second generation clearly focuses on economic growth, thus abandoning the more encompassing notion of development of the first generation, which entailed greater social equality and participation. In other words, while a central
element of the rationale of the first generation was to counter inequality in the recipient countries, this goal for second-generation practitioners seems to be an eventual consequence of economic growth. As Maria Dakolias -the World Bank official in charge of the Latin American programs- has expressed, modernizing legal institutions is a priority because "such institutions contribute to economic efficiency and lead to growth which in turn alleviate poverty" (1996: 71). Evident in this formula is the highly problematic belief that poverty alleviation depends chiefly on economic growth, rather than on a combination of growth and redistributive measures. From this perspective, economic growth will generate "trickle-down" effects that will eventually benefit the poor. Second, precisely because of its narrow understanding of development, the second generation has a better defined, more focused view of the role of law in development. In such a view, law is but a facilitator of development, rather than its source. There is also among the practitioners of the 1990s, as - will be explained below, a heightened sense of realism, both concerning the reach of the reforms and the appropriate mechanism for carrying them out.
The Programs of Judicial Reform in Latin America

In line with the above-mentioned rationale and realistic perspective, the programs of the second generation have abandoned the ideal of legal education as the appropriate scenario for promoting the modernization of law in underdeveloped countries. Instead, the Latin American programs of the 1990s have been aimed primarily to generate institutional changes, particularly the reform of the judiciary. Influenced by the emergence of neo-institutionalist thinking in the social sciences (North, 1990), the proponents of these projects argue that an adequate institutional setting -particularly a functioning judicial system- is indispensable for private initiative and good governance to flourish: The objective of these projects today is to provide a service that is efficient and equitable as well as respected and valued by the community. In a market economy, an effective judicial system is expected and needed by citizens, the government and the private sector in order to resolve conflicts and order social relationships. As market economies become more open and transactions more complex, formal and impartial judicial institutions will be-essential. Without such institutions, private sector development as well as public sector modernization will not be complete (Dakolias, 1996: 71). Policy makers and scholars involved in second-generation projects have explicitly set out to distinguish themselves from their predecessors of the 1960s and 1970s and to avoid the difficulties that led to the failure of the programs of the first generation. This is evident, for instance, in the following statement by Dakolias: The objectives and methodology [of the programs of judicial reform] distinguish these efforts from the law and development movement of the 1960s and 1970s... Today, legal education is only one element of the
judicial reform program. The program is based on a holistic approach which is developed by the local legal communities (Dakolias, 1996: 69). Other than the shift towards judicial institutions, what are the differences between the two generations regarding their logistics and objectives? Among second-generation practitioners, there seems to be a heightened awareness of the need to actively involve the legal community of the recipient country -judges, lawyers, government officials, judicial administrators, etc.- both in the planning and in the execution of the reforms. There seems to be some preference for programs that beg n at the initiative of the local legal communities, and a perceived need to build local consensus around the programs (Jarquin and Canillo, 1998: xi; Dakolias, 1995: 65). This is particularly important concerning programs that are funded through loans, such as those supported by the World Bank (Shihata, 1993: 295) or IDB. In order to promote the gradual construction of local consensus, for example, the World ~ a h has implemented small pilot projects-notably in Argentina since 1988- whose k results are expected to raise support for broader reforms (Dakolias, 1995: 68). The specific objectives of the programs are fourfold. First, the reform of the judiciary is aimed mainly at the promotion of a suitable climate for the growth of the private sector, in general, and of foreign investment, in particular (Iglesias, 1993: 8; Shihata, 1998: 117). In this sense, the prompt collection of debts, the enforcement of contractual obligations and the protection of property rights are the main concerns of the reform projects. The overall objective is to create judicial institutions that establish predictable rules of the game, which -according to the empirical evidence put forth by economists working as consultants for the funding institutionsis the necessary condition for economic growth (Weder, 1995: 21). Second, the programs are intended to further the stability of liberal democracy in the region by promoting the consolidation of an independent and efficient judiciary capable of checking the power of the executive and the legislature (Buscaglia, 1998: 15). Third, the individuals and agencies involved in the programs have increasingly underlined the need to further the access of citizens to the judicial system. Although this goal still occupies a marginal place both in the theoretical justification and the actual operation of the projects, the fact that it has received attention in the most recent programs should not be igrtored. Indeed, the issue of access to justice has the potential to infuse a much-needed element of social equity into the hitherto overly libertarian, pro-&pital second generation. In this respect, there seems to be certain ideological tension within the multilateral funding agencies, between a trend towards privileging court efficiency and an opposite one towards favoring equitable access. The latter tendency is evident in some occasional statements by officials of multilateral banks, according to which "where justice is involved, equity criteria must serve as a counterweight to the principles of economic efficiency" (Carrillo, 1998: 154). In any event, as Garth has suggested, court efficiency and access to justice are intertwined, since "for access to justice to be meaningful, the court system has to function efficiently and judges must be independent" (Garth, 1995: 90). Fourth, some programs, particularly those funded by AID (and, to a lesser extent, by the
Table 1 MAJOR LEGAL REFORM PROJECTS IN LATIN AMERICA IN THE 1990s.

AID
Argentina Bolivia -Research -Criminal prosecution -Alternative dispute resolution (ADR) -Public Defender's Office -Legal aid; legal training -Attorney General's Office -Access to justice/ADR -Research/court management -Training for judges -Court management -Legal aid -Information system -Training for judges and judicial administrators -Reduction of criminal and civil backlogs -ADR -Research -Criminal law/courts -Training for judicial personnel -Court administration -Legal education -Criminal procedure code -Prosecution of crimes -New criminal code -Prosecution of crimes World Bank -Research -Court management
IDB
Colombia
-Public Prosecutor's Office -ADR
Chile
Costa Rica
-ADR
-Court management
Ecuador/Peru El Salvador
Guatemala Honduras Mexico Paraguay
-Code modernization -Infrastructure -ADR -Court management -Infrastructure -Access to justice
Uruguay Venezuela
-Court management 1training -Commercial legislation -Infrastructure -Court management -Reduction of backlogs
Sources: AID: Vaky, 1998; World Bank: Dakolias, 1995; IDB: Carrillo, 1998.
IDB), seek to reinforce the mechanisms of social control in Latin America, especially the capacity of prosecutors and judges to investigate and punish certain criminal conducts (more on this below). Accordingly, the programs that have been undertaken in Latin America are diverse. In line with the "holistic" approach mentioned by Dakolias, the different participant institutions have tackled a variety of bottlenecks in the judicial systems through projects that range from small exploratory studies to a radical restructuring of the judiciary of some countries. Table 1 sketches the content of some of the projects funded by the three major actors of the second generation of law and development. It is important to note that this table is aimed at offering only a general idea of the landscape of legal reform in the region, rather than at mapping out the ongoing programs. Indeed, many more projects and countries are involved, as recent works have adequately documented (Arenas and Gbmez, 2000; Santos, 2001). Given that my chief goal is to locate policies of legal reform within law and development theory and action, a detailed survey of the multiple programs taking place in the region is beyond the scope of this essay. For analytical purposes, the above-mentioned and similar projects may be grouped into six categories, according to their prevailing goals. First, a considerable portion of the programs aims to upgrade court management and reduce the existing backlogs. The alarming delays and backlogs that characterize the (ma1)functioning of Latin American courts5 are rooted in serious deficiencies both in basic infrastructure (e.g. suitable offices, computers, etc.), and in inadequate systems of management of the workload. Accordingly, the programs in this category have emphasized the modernization of the courts' infrastructure and management systems, as well as the use of alternative dispute resolution (ADR) mechanisms and the reform of procedural codes to eliminate delaying formalities. The most salient illustration of this category is the World Bank loan to Venezuela (1994), aimed at the improvement of infrastructure and technology. Second, some projects stress judicial independence, particularly through the introduction of new institutions -notably the so-called Consejos Superiores de la Iudicatura ("judicial administrative councils")- that are to manage autonomously the budget and the organization of the judiciary. Likewise, funds have been granted to support legislative and administrative changes seeking to promote independent, merit-based systems of evaluation and appointment in the judiciary. Third, several projects contain an educational element but, in contrast with the first generation, they are targeted mainly at training judges and court assistants, rather than law professors and students. Fourth, an increasing number of initiatives aim to improve the access to justice of citizens in general (e.g. through the use of
For instance, according to figures quoted by Dakolias, "in Brazil, more than four million cases were filed in the courts of first instance in 1990, but only 58 percent of those cases were adjudicated by the end of 1990" (1996: xi). Similarly, "in 1993, there were approximately 500,000 cases .. pending in the entire court system in Ecuador. [In Argentina] over 1,000,000cases were pending in the entire Federal system in 1992. By 1993 in Colombia, over four million cases were pending" (Dakolias, 1996: xiii).
alternative dispute resolution mechanisms), and of marginalized communities in particular (e.g. by reinforcing legal aid programs, and by funding conciliation and mediation centers located in marginal urban areas). Fifth, a few programs have sought to strengthen the role of bar associations, particularly concerning their disciplinary function in the legal profession. Finally, some projects -notably those funded by AID throughout Latin America- focus on the improvement of the criminal justice system. Oftentimes these programs are accompanied by others aimed at modernizing the police, "to increase the effectiveness of the investigation and prosecution of serious crimes" (Vaky, 1998: 139).
A Closer Look at Second-generation Programs: The case of AID in Colombia
In order to assess the achievements and flaws of the law and development projects in the 1990s, it is necessary to explore the actual operation of judicial reforms through empirical research. This task, which has not been undertaken systematically by scholars outside the institutions funding such reforms, is a difficult one as most projects are relatively new. Indeed, in some countries the projects are only in their early phases -i.e. preliminary studies on the judiciary-, and in some other countries (notably Chile) the reforms were until recently on hold while constitutional and statutory reforms proceeded (Carrillo, 1998: 153).6In sum, it is still too early to pursue a comprehensive assessment of the impact of these initiatives in Latin America similar to the one carried out by Gardner (1979) vis-8-vis the programs of the first generation. Nonetheless, some projects have been going on for several years and they have already yielded favorable and unfavorable results. Among such projects, probably the most extensive and continuous one has been the reform of the Colombian judiciary promoted by AID since 1986. This project is notable not only because it is the one to which AID has devoted most funds -and is, therefore, one of the most expensive programs of the second generation-, but also because it was remarkably stable over a period of 12 years. In fact, although the project began before the explosion of the second generation of law and development, it already contained some of the above-mentioned features of this movement, and it coexisted in the 1990s with other projects in Colombia funded by new actors such as the IDB. AID'S deep involvement in the reform of the Colombian judiciary has comprised three definite phases (Santos, 2001). The first one, from 1986 to 1991, was exploratory in character. It first involved a number of research projects on court backlogs and delays, and on the alternative dispute resolution mechanisms. In this period, AID also sponsored some preliminary efforts to introduce technological innovations to improve the courts' information system, as well as several training programs for judges and the creation of an official library for the judiciary. The grants
By early 2000, the Chilean reforms had been approved and the new prosecution system, based on the newly established Ministerio Pliblico (Attorney General's Office), was entering into operation (Universidad Diego Portales, 2000).
through which such programs were funded amounted to US$3,264,000, and were administered by FES, a Colombian foundation (Rondon, 1998: 18). Both AID and FES conceived these exploratory efforts as the preface to an ambitious judicial reform program dubbed Plan para la Modernizacidn de la Adrninistracidn de Justicia ("Plan for the Modernization of the Administration of Justice"). At the end of this period, AID began to engage in the project that would become the center of its activities in Colombia, i.e., the promotion of an adversarial system of criminal justice, based on the creation of an institution -the Fiscalia (Attorney General's Office)- modeled affer the American system of criminal prosecution. The occasion for such a project was provided by the decision of the Colombian people in 1990 to elect a Constitutional Assembly that was to convene for six months in 1991 to draft a new constitution. AID sought to infllience the introduction and the design of the Fiscalia by lobbying and submitting proposals to the Constitutional ~ s s e m b l AID, some sectors of the Colombian legal community, and the incum~. bent government favored the adversarial system over the inquisitorial one that Colombia had inherited from the European legal tradition in the nineteenth century and wherein judges both directed the investigation and decided over the substance of cases. Having specialized prosecutors, in accordance to this view, would both promote greater efficiency in the investigation of crimes and secure the protection of procedural rights during trial. The fundamental goal envisaged by the proponents of the adversarial system was to bring down the alarming rate of impunity in Colombia. According to some estimates, by the early 1990s only about 5 percent of the crimes committed in the country had been investigated and punished (Rubio, 2001). The outcome of the deliberations of the Colombian Constitutional Assembly concerning the Fiscalia is illustrative of the dynamics of legal transplanting. Within the American model advanced by AID, the role of prosecutors, who belong to the executive, is limited to the investigation of crimes and to bringing charges before the courts. Courts, rather than prosecutors, decide whether the defendant is to be released or maintained in prison during the investigation. In contrast, in the inquisitorial system in place in Colombia before 1991, prosecution was a task of the judicial branch, inasmuch as judges had competence over all the aspects of the criminal procedure. The judge headed the investigation, decided on the freedom of the defendant and eventually convicted'or acquitted him/her. The clash of the two models in the Constitutional Assembly gave rise to heated debates. On the one hand, the defenders of the American model emphasized its potential for the improvement of the prosecution of crimes. On the other hand, the critics of the transplant pointed out its allegedly disastrous effects on judicial independence. In their view, the introduction of public prosecutors obedient to the mandates of the executive branch would inevitably politicize the investigation of crimes, thus compromising the impartiality of the criminal system, and of the judiciary in general. Since in Colombia judicial independence had been instrumental for countering the abuses of the executive and the legislative -and since the memories of the
perverse effects of the politicized criminal systems that authoritarian regimes put in place in several Latin American countries were still fresh-, both traditional jurists and human rights advocates opposed the wholesale transplant of the American model (Uprimny, 1994). The result of the debate was a compromise. A unique system was established. In line with the American system favored by AID, the Constitution of 1991 introduced a powerful new agency, the Fiscalia, whose central function would be to investigate crimes. However, to avoid the danger of a politicized criminal justice system, the Constitutional Assembly incorporated the Fiscalia into the judicial branch, and gave prosecutors such judicial functions as deciding whether to release or to keep a suspect in prison during the investigation. The competence of judges, thus, was reduced to adjudicating the case. In this way, the interaction between a proposed legal transplant and the local legal culture produced a singular hybrid, a sort of prosecutor/semi-judge, who at first sight more closely resembles the old judge of the inquisitorial system than the prosecutor of the adversarial system. In practice, the hybrid figure has had moderately positive effects on the prosecution of crimes, although it has also raised concerns about the violation of human rights by all-mighty prosecutors invested with judicial functions (Uprimny, 1994). The legal and political transformations embodied in the Constitution of 1991 entered into effect by the time the second phase of AID'S Plan for the Modernization of the Administration of Justice in Colombia was launched. This phase, which spanned five years (1992-1996), was dominated by the interest of the Bush administration to step up the war on drugs in the exporting countries, namely Peru, Bolivia and Colombia. To this effect, in February 1990, the governments of the US and Colombia signed an agreement at the San Antonio Summit, whereby the former pledged to earmark US$36 million, which were to be administered by AID, to improve the capacity of the Colombian judicial system to prosecute and punish crimes.' This grant turned Colombia into the most important recipient of AID funds in Latin America, and amounted to nearly 50 percent of the international funds allocated to the Colombian judicial sector in the 1990s (Garcia, 1995). During this second phase, AID continued its association with FES, the Colombian foundation that had participated in the design and the execution of the first phase. Moreover, according to the intergovernmental agreement that earmarked the above-mentioned funds for judicialreform, the money was to be allocated by an executive committee made u p of both representatives of AID and of the Colombian Ministry of Justice, the Administrative Council of the Judiciary, the Fiscalia and the Supreme Court. The committee would review the petitions for funding presented by the participant institutions, as well as by universities and NGOs engaged in policy making and research on the judiciary. Within the committee, a vivid debate arose that illustrates the clash between the perspectives and interests of the donor agency in the US, on the one hand, and those of its representatives and local authorities in
'
For a thorough analysis of the AID grants in Colombia, see Santos (2001).
the recipient country, on the other, which constitutes a common difficulty of secondgeneration law and development programs. As Luis Roa -AID'S Administrative Vicepresident in Colombia, who was one of the members of the committee- explained in an interview in 1996; although AID representatives and governmental agencies in Colombia conceived the second phase as an effort to strengthen the criminal justice system in general, the priority in Washington was narrower, i.e., to achieve immediate and direct results vis-a-vis the punishment of drug traffickers. This gave rise to an enduring controversy over the assessment of the results, which in turn eroded the conditions for dialogue between AID in Washington and the Colombian institutions and organizations participating in the project. In line with the rationale of the second phase, and despite such disagreements, the allocation of funds between 1992 and 1995 clearly emphasized the goal of improving criminal prosecution. In fact, the Fiscalia received nearly 35 percent of the granted funds in this period (Garcia, 1995; Rond6n, 1998). The top priorities were to train the new prosecutors in state-of-the-art investigative techniques, to protect prosecutors and judges, and to build the infrastructure of the nascent Fiscalia. Indeed, as Roa explained in the above-mentioned interview, AID's grants were instrumental for the Fiscalia to begin operating. However, a considerable amount of money was also devoted to such varied projects as a media campaign for the improvement of the image of the judiciary, a program for the reduction of court backlogs and a plan for the consolidation of an efficient system of judicial statistics (Garcia,1995; Rondbn, 1998). By the end of the second phase (1995-1996), AID's perception of the goals of the program started to shift towards the perspective advanced earlier by several members of the executive committee. As explained above, this perspective conceived the programs in broad terms as aimed at improving the judicial system as a whole, rather than of a small sector thereof. It also put forward the need to tackle not only deficiencies regarding the "supply side" of the judiciary (i.e., the capacity of courts to handle cases fairly and efficiently), but also those regarding the "demand side" (i.e. the multifarious obstacles that prevent most citizens from having effective access to courts). As Eduardo Aldana, former head of FES, stated in an interview in 1996,' the unfolding of the second phase led FES to the conclusion that the project was overly emphasizing the supply side of the judicial system. FES thus set out to stress the demand side by promotirig access to justice programs, notably those concerning the use of conciliation and mediation by members of marginalized communities in order to settle their disputes. FES also decided to bolster legal aid programs to respond to the improved capacity of prosecutors to investigate crimes. Although this dimension of the programs remained incipient vis-a-vis the one concerning the "supply side" of the judicial system, it did give rise to pioneering projects that have some affinity with those put forward by "law and another develInterview by Gabriel C6mez. BogotB, December 1996. Interview by Carolina Rond6n and Gabriel Comez. Bogotii, December 1996.
opment" practitioners. In this regard, it is worth mentioning the creation of the socalled Casus de Justicia ("Houses of Justice"),that is, small centers that host delegates from several judicial institutions to promote the peaceful settlement of disputes in marginal areas of major cities like Bogota and Cali. The encouraging results of these two pilot projects have led the IDB to fund the construction of "houses of justice" in other Colombian cities and in other Latin American countries. As Fabrizio Operti one of the Washington coordinators of this program- pointed out in our interview, "IDB is trying to promote the houses of justice also in Guatemala and other countries, as a means to bring the administration of justice -particularly its less repressive facet- closer to those people who, because of economic, psychological and cultural barriers, have never used the court^."'^ Nonetheless, during the third phase of the program (1996-1999), the deterioration of US-Colombia relations -stemming from evidence that President Samper of Colombia had received in 1994 contributions from a drug cartel for his presidential campaign- heightened the pressure of the US government to obtain concrete results from the program in terms of the conviction of drug traffickers and the immediate reduction of court delays and backlogs. Since the statistics on impunity and court performance showed that the impact of the program had been minor, AID grew increasingly impatient and demanded immediate results. FES strongly disagreed with AID's short-term approach and eventually withdrew from the program. By the time the empirical research for this case study was finished (early 1999), AID was planning a fourth phase, now without the cooperation of FES, involving grants amounting to US$4 million. Moreover, given that included in the so-called "Plan Colombia" -which aims ostensibly at stepping up the war on drugs and is entering into operation in early 2001- are funds earmarked for judicial reform to be administered by AID, the continuation of the type of programs that dominated the previous phases is imminent. After more than ten years of AID's program in Colombia, what is the balance of its achievements and failures? AID's projects in Colombia have contributed to effecting long-awaited reforms, such as the improvement of the investigation of crimes. They have also been relatively responsive to the priorities put forward by the Colombian participants, as shown by some limited efforts at tackling the problem of access to justice. Moreover, AID funded studies on the judicial system that have been a useful source of information for Colombian policy makers and researchers. However, AID involvement in Colombia has had three clearly negative features. First, AID's policies have favored the interests of US foreign policy -particularly those of the highly dubious war on drugs that the US government has fueled with no effects on the drug trade and with disastrous consequences for Colombians at large- over the needs of the Colombian judicial system. The pervasive interest in prosecuting drug traffickers has led AID to devote a disproportionate amount of funds to the Fiscalia, to the detriment of other sectors of the judiciary which are as
lo
Telephone interview by the author. November 1998.
36
precarious as ever. As explained above, this tendency has also undermined the cooperation of local judicial institutions with the program. Second, AID'S pressure to obtain immediate, tangible results in terms of the amount of criminal convictions produced by the judicial system has downplayed long-term endeavors to gradually eliminate the sources of judicial inefficiency. In fact, such a pressure has been counterproductive even in terms of the immediate prosecution of serious crimes. As Rubio (2001) shows, prosecutors have tended to concentrate on easy cases that allow them to get quick convictions and, thus, to improve their record of "successful" investigations, thereby keeping u p with quantitative standards according to which they are evaluated. Third, AID'S lobby for the adoption of the US model in the Constitutional Assembly of 1991 -and, above all, the fact that it is currently promoting the same model in six different countries in Latin America (Vaky, 1998: 138)- bears witness to the persistence of the ethnocentric view on legal transplants :hat characterized the first generation.of law and development. Given the diversity of legal reform programs currently being implemented across Latin America, it is difficult to draw conclusions on second-generation programs from the case study on AID in Colombia. As the multifarious projects reach maturity, independent scholars and activists in the region will be able to assess what I have termed the second generation of law and development. However, this case study and the analysis of the documents produced by the World Bank, AID, and the IDB undertaken in the previous pages d o provide some elements for formulating a preliminary critique of the programs and for suggesting an alternative approach that may be used in the near future. It is to these topics that I devote the conclusion to this paper.
Conclusion
As I set out to show throughout this paper, judicial reform programs in Latin America in the 1980s and 1990s have incorporated some of the lessons derived from the failure of the first generation of law and development. In particular, some of them have sought to elicit the participation of local actors, including government and judicial authorities, as well as NGOs and private foundations concerned with the issue of justice. However, current programs of legal reform promoted by the World Bank, AID and the IDB suffer from two deep flaws that, in my view, are very similar to the ones that frustrated the first generation. First, the new programs focus narrowly on promoting foreign investment and capital accumulation as conditions for economic development. Their central objective continues to be facilitating market transactions. ~herefdre, most of the funds and efforts involved in the contemporary programs of legal reform are devoted to assuring the conditions of predictability (e.g. through the modernization of civil courts devoted to the collection of debts and the protection of private property) and security (e.g. through the upgrading of the criminal justice system) that are indispensable for the functioning of the market. Second, even when they involve local governmental and non-governmental agencies, sec-
ond-generation programs have clearly adopted a top-down perspective. In other words, they tend to proceed by transplanting legal institutions or by formulating new ones without the direct participation of the communities that would be affected by the reform. This was evident, for example, during the initial stage of the Caws de ]usticia in Colombia. Indeed, given that neither the funding agency (AID), nor the national or the local governments consulted with the communities in the neighborhoods in which the casas were established, such communities either ignored or actively opposed the casas, which were viewed as a means for increased state repression. To my mind, an approach to legal reform programs that is at the same time critical and constructive must begin by reformulating the goal of such programs. Instead of evaliiating legal reform projects simplistically in terms of the reduction of the courts' backlogs and delays, a more demanding, socially oriented criterion must be used. The crucial question is whether the reforms can promote the egalitarian, erhancipatory dimension of the rule of law. In other words, as Pinheiro (1999) has adequately argued, the central concern should be to what extent legal reform is helping to create conditions for the defense of the rights of the marginalized majorities (e.g. popular classes, indigenous groups, women) and for the reduction of the alarming inequalities that characterize the region. Once this criterion is adopted, it becomes clear that second-generation projects are far from satisfactory. Access to justice is still a secondary issue in such programs, and the emphasis on court efficiency has led state agencies and sponsoring organizations to overlook the quality of the court activities in terms of the protection of citizens' rights. Although striving for the reduction of case inventories, court delays, and levels of impunity is a fundamental task indeed, it falls short of realizing the emancipatory potential of the rule of law and of facilitating the emergence of the active civil society that is necessary for a "high intensity," participatory democracy to exist (Santos, 1999). To conclude, I would suggest four honts on which ongoing and future policies of legal reform in Latin America must concentrate if they are to promote a progressive version of the rule of law. First, legal reform programs can no longer be imposed from above, i.e., from the offices of governmental and intergovernmental agencies. As long as a "top-down" approach to legal reform prevails, the success of the policies will be only partial, as concerned legal actors and social groups will not appropriate the new institutions. This is particularly important in relation to reforms aimed at marginalized communities, such as the casas de justicia. In this regard, the elements offered by the above-mentioned law and another development approach are relevant. Such an approach stresses the importance of bottom-up reforms based on the active participation of the citizenry. When legal reforms affect a wide sector of th6 population (e.g. civil code reforms), participatory mechanisms have to be chosen that allow for the voicing of opinions by representatives of relevant groups (e.g. in the case of civil code reforms regarding contracts, representation of consumers, business, lawyers and citizens at large must be secured). Second, the promotion of social, ecenomic and cultural rights should be prioritized, as opposed to the overriding concern of second generation programs with the
protection of individual property rights. Indeed, despite the incorporation of economic, social and cultural rights into new constitutions throughout Latin America for instance, in Brazil (1988), Colombia (1991), and Venezuela (1999)- their imple, mentation remains very precarious. The potential for social justice embedded in such rights can be exploited by introducing reforms that establish, for instance, effective legal actions that allow citizens to ask courts to enforce such rights in everyday cases. Despite progress made on this front over the last decade -as the moderate success of the acci6n de tutela" in the protection of such rights in Colombia shows (CIJUS1998)- there is much to be done to promote adequate legal mechanisms and stimulate the emergence of an activist judiciary willing to implement social, economic, and cultural rights. Third, the issue of access to justice has to be taken seriously. Thus far, access to justice has been treated as an occasional object for debate and small-scale projects that accompany legal reform programs in Latin America. This defect has been reproduced in the second generation programs, and has only recently begun to be timidly corrected through the interest of the IDB in access to justice policies (Carrillo 1998). As the contributions in O'Donnell, Mendez and Pinheiro (1999) make clear, it makes no sense to think of reforming a judicial system to which only a privileged minority has access. Thus, court reform and access to justice programs must be undertaken simultaneously, and appropriate funding and efforts must be devoted to each of those two endeavors. Access to justice programs must include a wide range of reforms. Particularly important is the establishment of an efficient and adequate system of legal aid for the poor. Deficiencies on this front in Latin American legal systems are dramatic. For instance, a recent study by the Colombian Conslrjo Superior de la judicatura (1998) found that the chances that a criminal defendant will be convicted in Colombia are 80 percent higher when he is represented by a lawyer working for the state legal aid program than when he is represented by a private lawyer. Thus, no matter how much money is spent on providing criminal courts and prosecutors with computers, the system as a whole will continue to be highly unfair if the issues of legal aid and access to justice are not tackled. Finally, the current emphasis on civil and commercial court reform across Latin America (and, in Colombia, on the reform of criminal prosecution) must be replaced or complemented by a focus on areas of the judiciary that have received little attention thus far in the programs. Particularly important, to my mind, is the reform of labor courts. Indeed, given the precariousness of labor conditions in the region compounded over the last few years by rising unemployment and legal reforms aimed at "flexibilizing" labor markets-, the protection of labor rights is as urgent a task as ever. Such reforms as the revitalization of small-claims courts and informal
The accidn tie tutela is a legal action whereby any person, through an utterly informal procedure, can request any court to protect his or her constitutional rights when there are no other remedies available or when other remedies are inadequate for the protection of such rights. Courts have to decide ttcteln cases within 10 days.
dispute resolution mechanisms under state supervision, which have been left out of legal reform programs, should be given careful consideration. In sum, the profound transformation of the ongoing policies of legal reform in Latin America -through such strategies as promoting participatory reforms, tackling the issue of access to justice, improving labor courts, and protecting social, economic, and cultural rights- is an indispensable condition for such policies to contribute to the establishment of a legal setting that empowers progressive legal actors and social groups in the region. As some funding agencies are belatedly realizing, only such changes might prevent a second failure of law and development in Latin America.
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GLOBALIZATION AND JUDICIAL REFORM IN LATIN AMERICA

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GLOBALIZATION, JUDICIAL REFORM AND THE RULE OF LAW IN LATIN AMERICA

The Retum of Law and Development

lntroduction Globalization, Legal Reform and the Rule of Law

The Programs of Judicial Reform in Latin America

Table 1 MAJOR LEGAL REFORM PROJECTS IN LATIN AMERICA IN THE 1990s.

-Public Prosecutor's Office -ADR

Guatemala Honduras Mexico Paraguay

-Code modernization -Infrastructure -ADR -Court management -Infrastructure -Access to justice

Telephone interview by the author. November 1998.

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