Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile民主和专政中超越政治的法官：来自智利的教训 pmlz 电子版 pdf docx 网盘 kindle azw3 下载

This book examines different hypotheses about Chilean judicial behavior before, during, and after the authoritarian interlude. The book explores arguments based on judges' personal policy preferences, social class, and legal philosophy, but contends that institutional features, grounded in the ideal of "apoliticism," best explain judges' conservative and conformist conduct.

Acknowledgments

　Introduction

　Overview of the Argument

　Methodology and Data Reporting

　Plan of the Book

1　The Judiciary, the Rule of Law, and Democracy: Aspirations and Impediments

　The Judicial Role in Democracy and Democratization

　So Why Bother with Judges?

　The Roots of Judicial Behavior in General

　Judicial Behavior in Illiberal Contexts: Specific Hypotheses

　　The Regime-Related Explanation

　　The Attitudinal Explanation

　　The Class-Based Explanation

　　The Legal Theory Explanation

　The Institutional Argument

2　The Institutional Construction of the Judicial Role in Chile

　Law and Courts in Colonial Times and in Early Independence

　Law and Courts under the Portalian Republic

　Law and Courts before and during the Parliamentary Republic

　The Judiciary in Constitutional Transition and Dictatorship

　The Development of Conservative Judicial Activism from 1932 to the 1960s

　Conclusion

3　Conservative Activism in the Heyday of Democracy, 1964–1973

　The Judicial Role in the Frei and Allende Years

　Explaining the Judicial Role under Frei and Allende

　Conclusion

4　Legitimizing Authoritarianism, 1973–1990

　PART I: 1973–1980: “THE RULE OF LAW SHOW”

　The Military Government’s Approach to Law (1973–1980)

　The Judicial Response to Military Law and Policy (1973–1980)

　　Habeas Corpus (Amparo)

　　Review of Military Court Decisions

　　Constitutional Review (Inaplicabilidad por Inconstitucionalidad)

　　The New Constitutional Review Mechanism: Recurso de Protección

　　High-Profile Public Law Cases

　　Summary, 1973–1980

　PART II: 1981–1990: THE “NEW INSTITUTIONAL ORDER”

　The Military Government’s Approach to Law (1981–1990)

　The Judicial Response to Military Law and Policy (1981–1990)

　　Habeas Corpus (Amparo)

　　Constitutional Review I: Recursos de Protección

　　Constitutional Review II: Inaplicabilidad por Inconstitucionalidad

　　High-Profile Public Law Cases

　　Summary, 1981–1990

　PART III: EXPLAINING THE JUDICIAL ROLE UNDER PINOCHET, 1973–1990

　Regime-Related Factors

　Political Attitudes and Preferences

　Legal Philosophy

　Institutional Structure and Ideology

　Conclusion

5　Continuity and Change after the Return to Democracy, 1990–2000

　Democratic-Era Efforts to Liberalize Law and Justice

　The Judicial Role in the 1990s

　　Decisions in Authoritarian-Era Rights Cases

　　Decisions in Postauthoritarian Rights Cases

　Explaining the Judicial Role in the New Democracy

　Conclusion

6　Conclusions and Implications

　Institutionalized Apoliticism

　Institutionalized Apoliticism in Comparative Perspective

　Broader Implications of the Argument

　　The Limits of Judicial Independence

　Institutions as Rules and Roles

　　In Defense of Political Courts

Appendix A:Orienting Information on Chilean Law and Courts

Appendix B:List of Interviewees (alphabetical by category)

References

Index

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作者简介：

　　Lisa Hilbink is a two-time Fulbright grantee to Chile and Spain. From 2000 to 2003, she was Post-Doctoral Fellow in the Princeton University Society of Fellows and Lecturer at the Woodrow Wilson School of Public and International Affairs. Her doctoral thesis, upon which this book is based, won the Best Dissertation Award for 1999/2000 from the Western Political Science Association. Dr Hilbink is a member of the American Political Science Association, the Law and Society Association, and the Latin American Studies Association. She is now Assistant Professor at the University of Minnesota, Twin Cities.

书籍介绍

Why did formerly independent Chilean judges, trained under and appointed by democratic governments, facilitate and condone the illiberal, antidemocratic, and anti-legal policies of the Pinochet regime? Challenging the assumption that adjudication in non-democratic settings is fundamentally different and less puzzling than it is in democratic regimes, this 2007 book offers a longitudinal analysis of judicial behavior, demonstrating striking continuity in judicial performance across regimes in Chile. The work explores the relevance of judges' personal policy preferences, social class, and legal philosophy, but argues that institutional factors best explain the persistent failure of judges to take stands in defense of rights and rule of law principles. Specifically, the institutional structure and ideology of the Chilean judiciary, grounded in the ideal of judicial apoliticism, furnished judges with professional understandings and incentives that left them unequipped and disinclined to take stands in defense of liberal democratic principles, before, during, and after the authoritarian interlude.