Abstract

The literature on comparative law has a long and robust tradition, but studies comparing courts and judicial systems are scarce. Comparative studies in the Global South, following Shapiro’s institutional approach, have aimed to measure the involvement of courts in politics by assessing the power of the judiciary in society, the level of judicial independence, and their role in the context of the judicialization of politics. The focus was on the high courts, including either Constitutional or Supreme Courts. Criminal courts have not received similar attention despite the influence of their everyday decisions on people’s lives and their perception of the judicial system. This article argues that developing a comparative approach for criminal courts in the Global South is needed to help understand the role they play in the development of the rule of law and democratic life. This comparative study helps understand the impact of judicial reform programmes in the Global South. These reforms, inspired by a neoliberal paradigm, have focused on improving the efficiency of the courts. The reforms have promoted managerial techniques detrimental to the standards of due process. Any assessment of the impact of the reforms on the courts in the Global South should start by recognising the widely differing settings under which they operate. This context is characterised by serious economic constraints, such as a lack of material and human resources, and a democratic deficit legacy from the past authoritarian regimes, including widespread police abuse and corruption. Given this context, the role of the courts in ensuring due process and the legality of police procedures is crucial. The impact of the judicial reforms promoting managerial rationality in recent decades must be analysed. To examine the role courts are playing in criminal matters, two cases were explored where courts have undergone extensive judicial reforms, Argentina and the Philippines.

Highlights

  • Courts have received attention due to the changes in governance caused by neoliberalism.The expansion and strengthening of democracy around the globe, and the emphasis on the rule of law, have increasingly imbued high courts with moral and political leadership

  • To examine the role courts are playing in criminal matters, two cases were explored where courts have undergone extensive judicial reforms, Argentina and the Philippines

  • The Philippines has become notorious for the punitive policies implemented under President Duterte, the thousands of extrajudicial killings rationalised by his “war on drugs”

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Summary

Introduction

Courts have received attention due to the changes in governance caused by neoliberalism. Courts have been operating under much higher levels of societal unrest, as a product of the extreme levels of social inequality and serious constraints on resources found in the economies of the Global South Under these conditions, the reforms developed in the Global North have been implemented, forcing courts to adapt them to their local realities. South calls for a comparative analysis of the impact of the judicial reforms This comparative analysis should be able to identify similarities and differences in the political, economic, and cultural factors that have shaped the role of the criminal courts under neoliberalism. Courts in most countries of the Global South suffer the enduring effects of past authoritarian regimes—as do most governmental institutions—within their own organisation and in their relationships to others, such as the police Such institutional weakness is exacerbated by chronic material and human resource constraints. The article concludes by reflecting on the relevance of court leadership for democracies in the Global South to prioritise due process protection over managerial goals in judicial reform

Courts under Neoliberalism
Comparative Studies of Courts
Violence and Criminal Courts in the Global South
The Authoritarian Past
The Political Economy
The Structural Violence
Bureaucratic Inefficiency
Implementing Adversarialism to Managerialism in Argentina
When Courts Are Neglected
Conclusions
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