Latin American Courts Going Public: Institutional Innovations for Social Participation in the Judicial Decision-Making Process
Final Report Abstract
The use of mechanisms of social participation in judicial decision-making processes may question traditional notions of how courts make decisions and substantially change the perspectives that judges include in their rulings through the incorporation of the interests of previously neglected groups. This project undertook a systematic study of such mechanisms in 18 Latin America’s highest courts with constitutional review powers. It evaluated their adoption and implementation, as well as the reasons and motivations behind their use and made a preliminary assessment of their effects. The project made conceptual, theoretical and empirical contributions. First, it provided a conceptualization of mechanisms of social participation that distinguishes them between active and passive, a systematization that helps to make court behaviour comparable across countries. The first ones enable the participation of actors who are not a genuine party of a respective process, including for example public hearings and amicus curiae briefs. The second enhance the transparency of the institution, via the own websites of the courts or their presentations in social media or the press. Second, the project developed two explanations for this court behaviour: on the one hand, greater politicization increases courts’ motivation to engage with the public. This engagement has potentially positive effects on institutional legitimacy, which in turn increases the court’s chances to defend against political interferences with their authority and autonomy. On the other hand, an ideational change at the court, occurring through the appointment of new judges with a different conception of their role, motivates the court to implement mechanism of social participation. These two factors may interact and reinforce each other. Third, this study revealed that high courts in Latin America are designers of their own relations to the public who actively work to improve their institutional legitimacy. There is a group of pioneering courts from the five largest countries in the region, which can be identified as the first and more advanced in engaging in the public (Colombia, Argentina and Brazil, and, slightly behind, Mexico and Chile). The courts from the smaller countries follow behind the previous ones with different levels of engagement with the public. Latin American courts have also been pioneering in the use of social media to spread information on their work. Even in comparison to some of the most renown courts worldwide, most Latin American courts are more active and have comparatively more followers. Courts with lower levels of public trust tend to be slightly more active in social media than those with higher levels of public confidence. Further, the advance in digitization has been a helpful tool in the context of pandemic. Through their social media accounts, the courts were able to easily inform in time about current safety measures or the newest court decisions. This study pioneeringly contributed to the scholarly debate on court’s engagement with the public regionwide, thus inviting future investigations from a comparative perspective. Moreover, the analysis of the unforeseen context of the COVID-19 pandemic not only revealed that Latin American high courts decided on important policy issues related to the pandemic, but also that social media and other digital mechanisms played an important role in maintaining their engagement with the public. This fact opened the agenda for further research.
Publications
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Cortes superiores y redes sociales en América Latina. Revista Uruguaya de Ciencia Política, 29(1), 15-47
Llanos, Mariana and Cordula Tibi Weber
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Under the Sword of Damocles: The Supreme Court and Judicial Politics in Paraguay, 1992–2020. SSRN Electronic Journal (2020).
Tibi, Weber Cordula
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High Courts and Social Media in Latin America. In: GIGA Working Paper, No. 326, May 2021
Llanos, Mariana and Cordula Tibi Weber
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Facing the Stress Test: Courts and Executives during the COVID-19 Pandemic. In: GIGA Focus Lateinamerika, 06/2022, Hamburg.
Llanos, Mariana & Tibi, Weber Cordula
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Court–Executive Relations during the COVID-19 Pandemic. Latin America in Times of Turbulence (2023, 6, 23), 128-147. American Geophysical Union (AGU).
Llanos, Mariana & Tibi, Weber Cordula
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How and Why Do Courts Tweet? An Explorative Study of Latin American High Courts. Conocimiento, poder y transformación digital en América Latina (2024). American Geophysical Union (AGU).
Tibi, Weber Cordula
