Understanding the Judiciary from the Inside. The Legal Culture of Judges in Mexico¹

Abstract

Judges' legal culture is a factor that has been regarded as an important explanation of judicial behavior. As a concept, however, it has been difficult to operationalize and measure and, therefore, frequently dismissed. In this piece, I bridge three different literatures, tackling the lack of theorization in judicial politics' ideational accounts when dealing with the concept of judges' legal culture. Then, I use an original survey with federal judges in intermediate courts in Mexico and conduct a factor analysis to identify judges' legal culture and determine to what extent judges hold a positivist or a constitutionalist legal culture.

Keywords:

• Judges
• Legal Culture
• Judiciary

Notes

2 Latin American legal systems share the same civil law legal tradition, mostly the same models of legal education for judicial elites, legal systems with recently acquired accusatorial features that changed the way judges used to perform their duties, and a recent wave of judicial reforms that formally created politically independent and professional courts.

3 Difficult cases are typically in which liberties and human rights are at stake, where there is no clearly defined norm to adjudicate with, or there is a contradiction between norms. By contrast, easy cases are all those that find a well-defined solution in the constitution or other laws.

4 Among some legal and judicial politics scholars in Latin America, there has been an important discussion on neoconstitutionalism (Carbonell 2007; Couso 2010; González Ocantos 2016). This legal paradigm has been attributed to, among others, Luigi Ferrajoli. However, he has denied sharing the postulates of neoconstitutionalism and urged the legal community to embrace the guarantee-based constitutionalism that he proposes (Ferrajoli 2011), and which is described below.

5 It is convenient to point out that there are different variants of positivism among legal philosophers. Some claim that there is a strict separation between law and morals (normative positivists), and others concede that there is a minimal connection between them (inclusive positivists).

6 It is important to clarify that judicial activism has a pejorative meaning among legal philosophers such as Atienza and Ferrajoli. Both strongly argue against it, even when argumentative constitutionalism (by way of interpretation, weighing, and balancing) sows the seeds for its development. Instead, judicial politics scholars such as Martin Shapiro (1963) urge us to recognize that judges must be taken to be the same as any other political actor with preferences and the constitutional power to shape law and politics. Judges, Shapiro argues, are “participants of the political process” (Shapiro 1963, 296-297).

7 The previous discussion shows that legal positivism and guarantee-based constitutionalism doctrines share some principles and differ from argumentative constitutionalism on the assumption that norms can be weighed and interpreted in light of judges' morals. Thus, in what follows I group the first two in the category of legal positivism.

8 Abortion, same-sex marriage, marihuana legalization, decriminalizing of drugs.

9 In Spanish, conventional norms or conventional laws refer to international law, particularly, to those laws stated in a treaty signed by a State.

10 Data was collected by research associates and the author. I especially thank the valuable research assistance provided by Ana Karla González Lobo during fieldwork.

11 There are 32 judicial circuits, each mostly equivalent to one federal State in Mexico. With this information, we prepared a survey-tracking database by State that contained the judge's name, her bench and law matter, telephone number, contact person (usually her assistant or clerk), court address, and tracking status.

12 However, it is only fair to point out that some judges who accepted to answer the survey were very generous with their time. Even though our questionnaire contained only closed questions, they also elaborated on their answers and provided detailed information about the why of their response. Some of our appointments to conduct the survey lasted three hours. We registered this information in field notes, which are also partly used in this work.

13 In Latin-American, there are also important survey works with judicial elites (Sadek et. al 1995; Werneck Vianna, et al. 1997; Pérez-Liñan, Armen and Seligson 2006) and legal elites such as lawyers, scholars, and retired judges (Basabe 2019).

14 The questionnaire contains 167 variables and is organized into five sections: 1) family and background; 2) judicial career; 3) judicial ideas, legal culture, and thought; 4) opinions on indigenous rights; and, 5) opinions on judicial independence. Only section 4 was not answered by all judges. Some claimed they do not have experience in indigenous rights cases and preferred not to answer.

15 Judicial circuits are mostly geographically equivalent to states. The circuits we visited and the responses we obtained were geographically distributed as follows in our sample: Jalisco (30.9 percent), Oaxaca (18.3 percent), Puebla (18.3 percent), Nayarit (14 percent), Mexico City (8.4 percent), and Veracruz (4.2 percent), Nuevo León (2.8 percent), State of Mexico (2.8 percent).

16 I thank Ilsse Torres for pointing this observation.

17 While conducting the survey, we clarify the judges that we were talking about their professional positions on the topic (how they would judge a case involving those rights) and not their personal attitudes. Here is an area for future research to gather more textured information on judges’ attitudes toward liberties and rights, in both judges’ professional positions and personal attitudes.

18 Oblique rotation is recommended when theory suggest that factors in the analysis might be correlated (Field, Miles and Field, 2012, pp. 789-791). In this case, factors might be correlated because they are grouping questions on two dimensions: a) judges’ legal ideas; b) judges’ beliefs while writing judicial decisions. I thank the anonymous reviewer for pointing this out.

19 Using conventional norms (treaties signed by the State) and international court criteria when writing judicial rulings can also be deemed a constitutionalist feature because judges go beyond the positive national law. So, this factor might potentially group contradictory variables.

20 Abortion, same-sex marriage, marihuana legalization, decriminalizing of drugs.

21 In Spanish, conventional norms or conventional laws refer to international law, particularly, to those laws stated in a treaty signed by a State.