Latin America: Economic Development and Social Justice
Robert J. Delahunty, Foreword, Latin America: Economic Development and Social Justice
Latin America: Economic Development and Social Justice
Robert J. Delahunty 0 1
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1 University of St. Th omas School of Law
AND SOCIAL JUSTICE
ROBERT J. DELAHUNTY*
The St. Thomas Law Journal is proud to have hosted the distinguished
panelists who contributed essays to this volume on Latin America:
Economic Development and Social Justice. St. Thomas Law School can claim a
special interest in legal and policy issues touching on Latin America. As a
Catholic institution of learning, it welcomes ideas and influences from that
predominantly Catholic region, and seeks to deepen its ties with
policymakers, scholars and practitioners from it. As a school situated in the
commercial center of a border state, it is sensitive to the growing importance of
cross-border interactions, whether they be in trade, politics, culture, or the
movement of people. Finally, its interest reflects the recognition that only
too often, the United States “has taken its southern neighbors for granted—
a mistake that is potentially disastrous in any relationship.”1 Yet at the very
time at which the United States has come to need Latin American partners
to support its efforts in “securing sustainable energy supplies, combating
and adapting to climate change, and combating organized crime and drug
trafficking,” Latin American countries “are diversifying their international
economic and political relations, making them less reliant on the United
States.”2 Accustomed for decades to prescribing lessons for the rest of the
world, North Americans are belatedly beginning to discover that they have
much to learn from it—and not least from the Latin peoples and nations
with whom they share a continent and a hemisphere. This timely
symposium was conceived in that spirit of openness and solidarity.
The keynote speaker at the symposium, Jorge I. Dom´ınguez, the Vice
Provost for International Affairs at Harvard University, provides a
master* Associate Professor of Law, University of St. Thomas School of Law, Minneapolis, MN,
and one of two faculty advisors for this symposium. B.A., Columbia University; B.A., M.A.,
Oxford University; B.Phil., Oxford University; J.D., Harvard Law School.
1. PARAG KHANNA, THE SECOND WORLD: EMPIRES AND INFLUENCE IN THE NEW GLOBAL
ORDER 122 (2008).
2. THE BROOKINGS INSTITUTION, RETHINKING U.S.-LATIN AMERICAN RELATIONS: A
HEMISPHERIC PARTNERSHIP FOR A TURBULENT WORLD 3 (Nov. 2008), available at http://www.
ful and penetrating analysis of the major political and economic trends in
Latin America from the authoritarianism of the 1970s to the more
promising present.3 Dom´ınguez addresses the question, crucial not only for Latin
America, of the compatibility of free markets and democratic governance.4
Dom´ınguez argues persuasively that:
[D]uring the last third of the twentieth century Latin Americans
discovered that the authoritarian regimes in their countries did not
make the economies grow and did not provide for prosperity.
Because the economic record of dictatorship in Latin America was
so poor, it was easier in this region at this time to shift the course
of history toward a future that would be open for the politics of
Dom´ınguez identifies four ways in which democracy may serve and
foster a market economy: by deconcentrating economic power, democracy
makes it easier to deconcentrate political power as well; democracy
facilitates the removal of bad rulers without coups, insurgencies, or revolutions;
democracy enables the creation of voluntary bodies—political parties,
nongovernmental organizations, social movements—that promote nonviolent
change; and democracy encourages investment and capital formation
because it can credibly promise more stable and predictable governmental
policies for the future.6 Dom´ınguez demonstrates how Latin American
governments in the 1980s and 1990s—including Chile, Argentina, and Brazil—
absorbed and applied these lessons.7 Dom´ınguez cautions, however, that
much of Latin America has still to taste the promised benefits of economic
liberalization—in large part because income inequality remains a rooted
and pervasive phenomenon.8 Democracy will only be consolidated in Latin
America, he seems to be saying, when the prosperity that free markets bring
is more widely and fairly diffused.9
In an erudite and widely ranging article, John C. Reitz, Professor of
Law and Associate Dean for International and Comparative Law Programs
at the University of Iowa College of Law, addresses a central question of
the relationship between law and politics.10 As Reitz notes, the tension
between law and politics is an enduring one that is “at the heart of virtually all
conceptions of the rule of law,”11 and helps to explain why even in nations
like France and the United Kingdom, “substantial institutional protections
for the judges’ independence were only adopted recently.”12 Assuming that
the antagonistic values of judicial independence and political responsibility
can be brought into an appropriate balance, Reitz seeks to identify the
conditions that would foster in Latin America a culture of judicial freedom
from executive domination.13 Reitz argues that “one important value
underpinning the culture supportive of substantial judicial independence is a
view of law as ‘transformative’ of society, and that without that view, a
culture is unlikely to be sufficiently concerned about executive control over
the courts to insist on the enactment of significant institutional guarantees
for judicial independence.” By “transformative law,” Reitz means law that
“is intended to change society,” not just “enforce the status quo.”14 Thus,
Reitz says, federal antidiscrimination statutes in the United States
exemplify “transformative law,” in part because they aim at decreasing
inequalities by applying uniform legal categories in a depersonalized way, whereas
traditional Islamic law, by contrast, is non-transformative, largely because it
rests on personalized and situational decision-making.15 Democracy tends
to promote judicial independence, Reitz argues, because it gives the
popularly-elected executive a growing interest in transformative law and its
applications.16 But as the executive’s stake in judicial outcomes rises, the
pressure for judicial independence mounts with it—for if the executive is
perceived as controlling the courts’ decisions, the courts will fail to
maintain their legitimacy.17 Transformative law thus “generat[es] support for
judicial independence.”18 Reitz substantiates his theoretical account with
specific case studies of Britain, the United States and France.19 While Reitz
disavows the claim that “belief in transformative law will quickly or easily
lead to formation of a culture supportive of greater degrees of judicial
independence,” he does contend that that belief “sets up the dynamic” that tends
towards such independence.20 Reitz expresses the hope that “there is an
opportunity to renew the commitment to judicial review” in Latin
America.21 If there is a missing piece in Reitz’s powerful argument, it is
that he does not consider that judicial independence may also block the
emergence of “transformative laws” that promote social and economic
11. Id. at 745.
12. Id. at 772.
13. Reitz, supra note 10.
14. Id. at 761.
15. Id. at 761–765.
16. Id. at 769.
17. Id. at 770.
18. Id. at 769.
19. Reitz, supra note 10, at 780–793.
20. Id. at 804.
equality—as happened, e.g., during Franklin Roosevelt’s New Deal,22 or
again (some scholars claim) in some contemporary constitutional regimes
when radical political forces have pressed for fundamental change.23
Rogelio Pe´rez-Perdomo, the Dean of the Law School of the
Universidad Metropolitana in Caracas, Venezuela, explores the antimony of law
and politics from another angle.24 Pe´rez-Perdomo first underscores the
importance of the “rule of law” for Latin American society.25 By the “rule of
law” he means “that those invested with political power act in accordance
with the constitution and legislation, and especially, that they respect the
people’s rights.”26 For Pe´rez-Perdomo, if the rule of law were conceived of
merely as the recognition of a sphere of private action sheltered from state
interference or merely as formal, rule-bound equality, it would be
compatible with extreme material inequalities, and would thus give insufficient
weight to the normative demands of social justice.27 Here, Pe´rez-Perdomo’s
article recalls Reitz’s view of “transformative law,” for the “central idea” of
social justice as Pe´rez-Perdomo views it “is that law and the state should
favor people with social disadvantages in order to promote a more equal
society in material or social terms . . . .”28 The tension between a purely
formal rule of law and this substantive conception of social justice (or more
generally between “law” and “politics”) arises because “[t]he operation of
the legal system itself can limit or even destroy the search for material
equality embodied in legislation. . . . The legal system . . . imposes
structural limitations on the search for social justice through law.”29
Pe´rezPerdomo rejects revolutionary political violence as the corrective to this
structural problem, and instead looks to the emergence of “public interest”
or “cause” lawyers to soften the antagonism (in Latin America and
elsewhere) between social justice and the formal rule of law.30
Egle´ Iturbe de Blanco, as the former Finance Minister of Venezuela,
writes with special expertise and authority on the emergence of women in
leadership roles in Latin American politics.31 Amplifying Jorge
Dom´ınguez’s theme that broadly-based societal consensus is needed to anchor
democratic institutions and legal reforms in Latin America, Iturbe de
Blanco asks how it could be possible to achieve such a result “when
onehalf of the population holds less than one-fourth of the important positions
in which consensus-based solutions ought to be formulated and
proposed.”32 Her answer is that it would not be possible: consensus-building
requires “the active and genuine participation of women. Their vision—
their perception and points of view—must be part of the solution, which
cannot happen if women do not . . . wield real power to foster real
changes.”33 Although she carefully documents the progress of Latin
American women in attaining positions of political leadership, especially in
ministerial positions (there have been more than four hundred female ministers
since 1994), she also finds that this phenomenon has not, thus far, translated
into more power or more development.34 This is so because, “in general,
[women ministers] have not been included in the inner circles of
decisionmaking that surround the president of the republic.”35 One of Iturbe de
Blanco’s recommendations for the way forward is to introduce more
formality into the governmental decision-making process, thus bringing real
and formal power into closer correspondence.36
Antonio F. Perez, Professor of Law at the Columbus School of Law at
the Catholic University of America and a former member of the
InterAmerican Juridical Committee of the Organization of American States
(OAS), focuses on the problem of crafting an appropriate hemispheric legal
regime for the protection of consumer rights.37 For Perez, progress in the
ongoing OAS negotiations over the terms of such a legal regime will
require “reconceptualizing the problem of international consumer protection
as a problem in international trade and politics rather than a technical set of
issues in a private international law.”38 Intimately familiar himself with the
negotiations over the consumer protection problem, Perez identifies two
main reasons why its solution has proven so difficult: first, because of the
need to answer the general problem of vindicating numerous small
claims—a problem that states face in domestic as well as in cross-border
trade; and second, because of a set of more specific problems arising in the
context of cross-border transactions between suppliers and consumers,
especially as mediated through the internet.39 Perez argues that finding a
solution to the problem of international consumer protection should matter to
the OAS not only for economic reasons (including both fraud prevention
and ensuring a wide and deep array of consumer choices) but also for
socio32. Id. at 692; see Dom´ınguez, supra note 3.
33. Iturbe de Blanco, supra note 31, at 692.
34. Id. at 696.
35. Id. at 690.
37. Antonio F. Perez, Consumer Protection in the Americas: A Second Wave of American
Revolutions?, 5 U. ST. THOMAS L.J. 698 (2009).
38. Id. at 699.
39. Id. at 704.
political reasons and indeed for reasons of foreign policy.40 Perez’s paper is
at its most interesting (for this reader at least) in its exploration of the
sociopolitical justifications for consumer protection that do not “tend[ ] to
objectify the person, treating him or her as a mere economic unit, seeking to
maximize welfare understood in purely hedonistic terms.”41 Seen in this
light, consumption is instead to be understood as “a morally laden fact
[that] can evince and enable the exercise of political power.”42 Thus, a
heightened recognition of their power as consumers, Perez suggests, “will
begin to enable Latin American consumers to challenge the deep-seated
sense of fatalism and powerlessness that seems for many to be characteristic
of Latin American culture.”43 Furthermore, “creating better legal regimes
for consumers to vindicate their rights (the supply side of rights, if you will)
and building a greater sense of entitlement and empowerment among
consumers (the demand side of rights, if you will) changes the political
equilibrium between the political class and citizens.”44 Finally, from a foreign
policy angle, Perez argues that “a more active and pro-consumer U.S.
engagement in the [OAS consumer protection negotiations] process can show
the commitment to values all Americans can share, from Alaska to Tierra
del Fuego”45—values that “a vibrant consumer culture can further,”
including “social solidarity through group action and, therefore, support for
greater transparency and intolerance of governmental corruption, which is
the political equivalent of private fraud.”46 Perez concludes by outlining a
new U.S. legal strategy that would implement this concept.47
Dr. Mar´ıa de Lourdes Dieck Assad, the Director of the School of
Government, Social Sciences and Humanities, at the Instituto Tecnolo´gico de
Monterrey in Mexico, takes as her topic the relationship between the
promotion of human rights and “social cohesion.”48 Although she points out
that there is no universally agreed-on definition of “social cohesion,” as she
uses the term it refers principally to the reduction of inequality and poverty
and the promotion of social inclusion or belonging and of well-being.49 In
her view, promoting human rights and advancing social cohesion are
inescapably intertwined: “they overlap, and one is imbedded in the other, so
that they cannot be viewed as separate issues. Hence, public policy that
addresses them must be designed in complete coordination.”50 Dieck Assad
first charts out Mexico’s vigorous human rights policy. She then turns to
establishing the relationship between human rights and social cohesion,
If the government does not address issues inherent to SC [social
cohesion] . . . , and if it does not carry out the necessary, specific
actions to promote a sense of belonging, commitment and social
solidarity, economic growth will be slow and unsustainable. . . .
Furthermore, a lack of SC will contribute to a weakening of
democracy . . . .51
She concludes with a detailed and informative examination of various
indicators for measuring Mexico’s and Latin America’s performance in
promoting social cohesion.52 Thus, e.g., she reports that while there have been
significant improvements in basic indicators of well-being in Latin America
in a relatively brief period—such as increases in life expectancy at birth and
decreases in child mortality and malnutrition—economic growth has been
slow for three decades, poverty remains widespread and persistent, and the
region continues to have the most regressive income distribution in the
world.53 Dieck Assad proposes a redesign of human rights policy that
makes the achievement of social cohesion in all its dimensions its highest
The dialogue between Mariana Hernandez Crespo,55 Assistant
Professor of Law at the University of St. Thomas, and Frank Sander, Emeritus
Professor of Law at Harvard Law School, offers fascinating glimpses into
two projects: first, the origins of Alternative Dispute Resolution (ADR),
whose study Sander pioneered, and second, Hernandez Crespo’s own
innovative research on the application of one of Sander’s key ideas—“the
multidoor courthouse”—to the Latin American setting.56 Sander explains that the
idea of the multi-door courthouse was “to look at different forms of dispute
resolution—mediation, arbitration, negotiation, and med-arb (a blend of
mediation and arbitration) . . . . [to] see whether [there was] some kind of
taxonomy of which disputes ought to go where, and which doors are
appropriate for which disputes.”57 Hernandez Crespo shows how this idea can be
fruitfully applied in the Latin American context, not only to provide more
affordable justice than the judicial system can, but also more generally to
promote social decision-making that is fairer, more inclusive, more fully
consensual, and more respectful of human dignity. She says:
I saw . . . that ADR methods, particularly the multi-door
courthouse, could help bring the disenfranchised majority into the ball
game on a level playing field . . . . Coming from Latin America
(from Venezuela) I have seen that getting into the participatory
circle is on many people’s minds . . . the poor and disenfranchised
there make up the majority and have little say in how things are
run. . . . I saw that the multi-door courthouse could promote this
opportunity for citizens to experience participation . . . by
selecting the conflict-resolution process, by experiencing a different
form of dispute resolution, and by having more options—not just
the courtroom and the court’s coercion as the main mechanisms
for dispute resolution.58
Hernandez Crespo has conducted a pilot program in Brazil that aims at
exploring how the multi-door courthouse can be used exactly in this way to
enlarge “the participatory circle.” Her effort to promote social and political
change through engaging the poor and disenfranchised contrasts with (or
perhaps complements?) the more top-down approaches advocated by Iturbe
de Blanco’s call for women to hold more positions within political e´lites
and by Pe´rez-Perdomo’s hopes for a cadre of professionally-trained “public
Taken together, these fine essays provide a searching and
well-informed diagnosis of the main legal and policy problems currently facing
Latin America, and offer sound, practicable ideas for the way forward.
3. Jorge I. Dom´ınguez, The Politics of Hope: Free Politics and Free Markets in Latin America, 5 U. ST. THOMAS L.J . 625 ( 2009 ).
4. Id . For other important recent studies of this question, see AMY CHUA, WORLD ON FIRE: HOW EXPORTING FREE MARKET DEMOCRACY BREEDS ETHNIC HATRED AND GLOBAL INSTABILITY ( 2004 ), and FAREED ZAKARIA, THE FUTURE OF FREEDOM: ILLIBERAL DEMOCRACY AT HOME AND ABROAD (rev . ed. 2007 ).
5. Dom´ınguez, supra note 3 , at 630.
6. Id. at 631-633.
7. Id. at 633-636.
8. Id. at 637.
9. Dom´ınguez, supra note 3.
10. John C. Reitz , Politics, Executive Dominance, and Transformative Law in the Culture of Judicial Independence , 5 U. ST. THOMAS L.J . 743 ( 2009 ).
22. For an account of the New Deal's constitutional conflict with the Supreme Court, see 2 BRUCE ACKERMAN , WE THE PEOPLE: TRANSFORMATIONS 290-311 ( 1998 ).
23. See RAN HIRSCHL , TOWARDS JURISTOCRACY : THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM ( 2004 ).
24. Rogelio Pe´rez- Perdomo , Lawyers, Rule of Law, and Social Justice: A Latin American Perspective , 5 U. ST. THOMAS L.J . 730 ( 2009 ).
25. Id . at 731.
26. Id .
27. Id . at 735.
28. Id . at 736; see Reitz, supra note 10.
29. Pe ´rez- Perdomo , supra note 24 , at 736-737.
30. Id . at 737.
31. Egle´ Iturbe de Blanco, Women: Power and Development in Latin America , 5 U. ST. THOMAS L.J . 675 ( 2009 ).
51. Id . at 649.
52. Id . at 652-660.
53. Id .
54. Dieck Assad, supra note 48.
55. Associate Professor of Law, University of St. Thomas School of Law, Minneapolis, MN, and one of two faculty advisors for this symposium .
56. Frank Sander & Mariana Hernandez Crespo, A Dialogue Between Professors Frank Sander and Mariana Hernandez Crespo: Exploring the Evolution of the Multi-Door Courthouse, 5 U. ST . THOMAS L.J. 665 ( 2009 ).
57. Id . at 670.
58. Id . at 668.
59. See Sander & Hernandez Crespo, supra note 56; Iturbe de Blanco, supra note 31; Pe´rezPerdomo, supra note 24.