A Neo-Weberian Approach to Constitutional Courts in the Transition from Authoritarian Rule: The Mexican Case (1994–1997)

Abstract

Current theories of the breakdown of authoritarian rule do not mention the role of supreme courts in the democratization process (Schmitter & O'Donnell 1986; Diamond, Linz & Lipset 1989; Gunther & Higley 1992). In the literature on this breakdown, constitutional courts are treated as an adjunct to executive power and hence as relatively unimportant to the process of democratization. One exception to this general trend is Huntington (1991: 228–231), who comments on the importance of rapid, formal justice by courts in prosecuting officials who violated human rights during the authoritarian phase of the regime. Nevertheless, Huntington (1991: 228) assumes that courts have no functional independence from the executive and that justice is “a function of political power”.In this essay I address this theoretical gap in the literature from a neo-Weberian perspective, which I illustrate empirically with the 1994 judicial reforms in Mexico. These reforms resulted in an increase in the Mexican Supreme Court's powers of judicial review of legislation during the breakdown of authoritarian rule (1994–1996). My central hypothesis is that supreme courts' promulgation and exercise of expanded abstract powers of judicial review of legislation will be used both by reformist authoritarian politicians and by democratizing groups, respectively (1) to increase the perception of democratic legitimacy for an authoritarian regime in crisis and (2) as an anti-authoritarian strategy in the effort to effect the legal leveling of authoritarian political elites to the rule of law (Weber 1978: 813).The democratizing effort to promote abstract justice through greater judicial review of legislation by supreme courts must be understood as a slow rationalizing effort riddled with the tension between formal and substantive rationality (Weber 1978: 641–895). I conclude that one also must study the punitive consequences of legal formalism to see whether it is actually implemented; Weber did not predict this aspect of the trend toward abstract formal justice.In my empirical analysis I demonstrate the shift from a Mexican Supreme Court with no generalizable powers of judicial review (before December 1994) to a Mexican Supreme Court with the power to generalize the effects of its powers of judicial review (after December 1994). I contend that the events of these initial 2 years are sufficient to show a trend toward formal rationalization and to demonstrate the tension-ridden nature of this process. Indeed, I argue that the earliest years of a supreme court's shift to generalizable powers of the judicial review of legislation show most clearly the strongest struggles over the scope and reach of its new powers. I use the Mexican Supreme Court's expanded powers of judicial review to illustrate the general Weberian point that the rationalization process is subject to the dialectical tension between formal and substantive rationality.