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3225 Oñati Session III - Courtrooms and the Judicial Field: a locus for enforcement or contestation?

Room: C3.01

 

In this session we bring together studies under the common theme of Courtrooms as stages where the ideals of justice, neutrality and due process intersect and confront with the performative nature of its rituals and discourses as acts and enactments of state power.

 

Chair: Alexander Kondakov | European University at St. Petersburg

Aída Araceli Patiño Álvarez | University of Antwerp

The institutional behavior of constitutional courts in hybrid regimes. An assessment of the societal accountability function of constitutional courts of Colombia, Costa Rica and Mexico.

 

Abstract

 

Background
Constitutional courts are institutions of the liberal democratic apparatus established with the aim of promoting a system of checks and balances and strengthening the rule of law. The irruption of these institutions during the late third wave of democratisation is linked to the need to set limits to governmental action and ensure respect for human rights.
However, both the expansion of democracy and the expansion of constitutional courts have led to serious questions in practice and within academic discussions. From the point of view of scholars of democracy, there is concern that most of the third wave countries have not become well-functioning democracies and are considered to have entered the grey zone. Countries in the grey zone are neither dictatorial nor clearly democratic. These 'hybrid regimes' share attributes of democratic political life with democratic deficits.
Gap in the literature
Within the liberal tradition, constitutional courts are conceived to serve as necessary institutions for the checks and balances system. As a result, scholars have shown a great interest regarding the performance of constitutional courts in emerging democracies. However, most of their studies consist in legal comparisons or case studies that mainly focus on the relationship between judicial review and democracy, i.e. the horizontal accountability function of constitutional courts. The vertical or societal accountability function of constitutional courts has not been sufficiently investigated, not to mention the scarcity of quantitative studies in the field.
Objective
The aim of this paper is to present the findings after having carried out the analysis of a sample of 1,138 judgments in human rights proceedings, stated by the constitutional courts of Colombia, Costa Rica and Mexico.
The analysis included two countries that can be characterised as hybrid regimes: Colombia and Mexico, and one country that is considered a stable democracy: Costa Rica. The period covered was marked by a single common fact i.e. the establishment of the constitutional courts in each of the selected countries until 2012.
Findings
Using a multilevel multinomial logistic regression model, the findings reflect the variation in the behaviour of the three constitutional courts under analysis along the time. In the light of these findings, it is argued that courts’ responsiveness, i.e. the type of resolution provided by courts relates to the level of corruption in each country.

Erika Bárcena Arévalo | Centro de Investigaciones y Estudios Superiores en Antropología Social (CIESAS-CDMX)

The economies of vernacularization of international human rights law in the Mexican Supreme Court

 

Abstract

Xenia Chiaramonte | Independent

Criminalization of protest

 

Abstract

 

Criminalization of protest is increasingly becoming a relevant matter for debate. Although this peculiar kind of criminalization is a worldwide occurrence, it has been hardly studied in a comprehensive manner. Oddly, the usual way to address this topic is blinded by the assumption that the police is the only agent of criminalization. Studies on the topic are monopolized by social movement studies, which do not usually take into consideration any “encounter” with the penal apparatus as such, as if an effective criminalization could occur without the courts. This work aims at reconstructing the lack of an adequate understanding of the issue and at demonstrating the need for an alternative theoretical framework to address it. In fact, criminal prosecutions are physiological events in the life cycle of most experiences of political activism. Moreover, the judicial field does not only work as a negative resource for social movements as it may also be crucial for the mobilization to put the opponents under pressure. Despite this twofold role, the relevance of the struggle in the courtroom has been systematically ignored by the social movement studies. To shed light on the interrelation between the life cycle of a grassroots organization and the judicial field, the case of the No Tav movement will be presented. Firstly, the focus will be on the findings of an ethnography conducted in Turin on the penal trials against hundreds of activists. Secondly, the work will deal with the Permanent Peoples’ Tribunal (TPP) decision on the Tav case.

James Campbell | Onati International Institute for the Sociology of Law

Neither Here Nor There: Towards a Theory of the Court as Liminal Space

 

Abstract

 

This project began as an attempt to understand some of the court's most esoteric, and frequently overlooked, features. The examination of these enigmatic elements within the legal process prompted considerations for the apparent religiosity of the courtroom and the centrality of ritual in its functioning. Attention to the performative character of the legal process led to an appreciation for the importance of space, both in and of itself, and as a means to explain ritual practice. More particularly, liminal space (a space of uncertain "between-ness") and the anthropological concept of liminality (of ritual-induced social transformation), presented themselves as ideal theoretical models to describe the ritual space itself, and the phenomenology of ritual experience.

The author shall argue that the courtroom, as a coherent and situated place in the world, is best understood as the product of interwoven and ritualised spatial and temporal dimensions.

 

 

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