PDF - Brazilian Political Science Review

Transcrição

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bpsr
brazilianpoliticalsciencereview
a journal of the brazilian political science association
Volume 2
Number 2
July - December
2008
Editors
Gilberto Hochman (Fiocruz, Brazil)
Leticia Pinheiro (IRI/PUC-RIO, Brazil)
[email protected]
E d i t o r i a l C o m m i t t ee
Adam Przeworski (New York University, USA)
Ana Maria Mustapic (Instituto Torquato Di Tella, Argentina)
Fernando Limongi (USP, CEBRAP, Brazil)
Marcus Figueiredo (IUPERJ, Brazil)
Maria Rita Loureiro (FGV, Brazil)
E DITORIA L B OARD
Alcides da Costa Vaz (Unb, Brazil) - Andrew Hurrell (Oxford University, United Kingdom) - Argelina Cheibub Figueiredo
(IUPERJ, CEBRAP, Brazil) - Candido Mendes (UCAM, Brazil) - Carlos Acuña (Universidad de San Andrés, Argentina) Carlos Huneeus (Universidad de Chile, Chile) - Celi Pinto (UFRS, Brazil) - Cícero Araújo (USP, Brazil) - Constanza Moreira
(Universidad de la República, Uruguay) - Dal Choong Kim (Yonsei University, Korea) - David Altman (Universidad Católica de
Chile, Chile) - Dirk Berg-Schlosser (Institut für Politikwissenschaft, Germany) - Eduardo Viola (UnB, Brazil) - Fabio Wanderley
Reis (UFMG, Brazil) - Gisele Cittadino (PUC-Rio, Brazil) - Glaucio Soares (IUPERJ, Brazil) - José Antônio Borges Cheibub
(Yale University, USA) - Jose Maria Maravall (Instituto Juan March, Spain) - Kay Lawson (San Francisco State University,
USA) - Laurence Whitehead ( Oxford University, United Kingdom) - Lourdes Sola (USP, Brazil) - Manuel Villaverde Cabral
(Univesidade de Lisboa, Portugal) - Marcelo Cavarozzi (Universidad Nacional de San Martín, Argentina) - Marcelo Jasmin
(IUPERJ, Brazil) - Margareth Keck (Johns Hopkins University, USA) - Maria D’Alva Gil Kinzo (USP, Brazil) - Maria Regina
Soares de Lima (IUPERJ, Brazil) - Maria Victoria Murillo (Columbia University, USA) - Max Kaase (International University
Bremen, Germany) - Monica Hirst (Fundação Centro de Estudos Brasileiros - Funceb, Argentina) - Nizar Messari (PUC-Rio,
Brazil) - Octávio Amorim Neto (FGV-Rio, Brazil) - Patrick Dunleavy (London School of Economics and Political Science,
United Kingdom) - Philippe Schmitter (European University Institute, Italy) - Pierre Rosanvallon (École de Hautes Études
en Sciences Sociales, France) - R. B. J. Walker (Victoria University, Canada, and Universiy of Keele, United Kindom) - Renato
Boschi (IUPERJ, Brazil) - Rolando Franco (Facultad Latino Americana de Ciencias Sociales - FLACSO, Chile) - Scott Mainwaring
(Notre Dame University, USA) - Sonia de Camargo (PUC-Rio, Brazil) - Sonia Draibe (UNICAMP, Brazil) - Stefano Bartolini
(European University Institute, Italy) - Tullo Vigevani (UNESP, Brazil) - Wanderley Guilherme dos Santos (Leex/UCAM,
Brazil)
AIMS A N D S C O P E
The Brazilian Political Science Review main goal is to provide a broad venue for the diffusion of high-quality political
science work produced in Brazil, and abroad, thus broadening the exchange of ideas with the international political science
community. The BPSR is a refereed journal published electronically by the Brazilian Political Science Association, twice a year.
The BPSR welcomes submissions of articles, ongoing research notes and review essays from political scientists and researchers
from related disciplines. The review’s scope is broad, as it will consider submissions representing the entire range of political
science research – theoretical or empirical, cross-national or focused on a single-country, quantitative or qualitative.
The views expressed are those of individual authors and are not to be taken as representing the views of the Editors,
Editorial Committee, Editorial Board or the Brazilian Political Science Association.
BPSR is indexed in International Political Science Abstracts
Brazilian Political Science Review (Online). ISSN 1981-3821
Translation/Revision:
Leandro Moura
Renata Bedricovetchi (Book Review)
Text and Typographical Revision:
Tema Editoração
Book Design/Desktop Publishing:
Carolina Niemeyer Design Gráfico
Webmaster:
Jaqueline Rodriguez
Address:
Brazilian Political Science Review
Rua da Matriz, 82. Botafogo, Rio de Janeiro, RJ. Brazil.
CEP 22260-100
Phone:(55 21) 2537 8020       
Fax: (55 21) 2286 7146
www.bpsr.org.br
Secretary:
Marina Vivas (BPSA, Brazil)
[email protected]
Volume 2 Number 2 July - December 2008
Contents
Contributors
4
Abstracts
7
Articles
10
Simone Diniz ,
Cláudio Oliveira Ribeiro The Role of the Brazilian Congress in Foreign Policy: An Empirical
Contribution to the Debate 10
Klaus Frey
Development, Good Governance, and Local Democracy 39
Eduardo Alemán
Policy Positions in the Chilean Senate: An Analysis of Coauthorship
and Roll Call Data
74
Fabiana Luci Oliveira
Justice, Professionalism, and Politics in the Exercise of Judicial Review
by Brazil’s Supreme Court 93
Ricardo Fabrino Mendonça
Representation and Deliberation in Civil Society Book Review Rogério Arantes
Judicial Contestation: A Less Decisive and More Resolute Political System
117
138
Judging Policy.Courts and Policy Reform in Democratic Brazil
(Taylor, Matthew M. 2008. Stanford: Stanford University Press)
138
Acknowledgments
146
3
Contributors
Cláudio Oliveira Ribeiro
Cláudio Oliveira Ribeiro holds a Ph.D. in Political Science (University of São Paulo,
Brazil). He is professor of the Catholic University of São Paulo. His areas of interest are
foreign policy, decision-making and Brazil-Africa relations. Recent publications: “Crise
e castigo: as relações Brasil-África no governo Sarney” (Revista Brasileira de Política
Internacional, 2008).
Email: [email protected]
Eduardo Alemán
Eduardo Alemán holds a Ph.D. in Political Science and a Master’s degree in Latin
American Studies, both from the University of California, Los Angeles (UCLA). He is
Assistant Professor at the Department of Political Science in the University of Houston.
His areas of interest are legislative politics, comparative political institutions, and political
parties. Some recent publications include: “Unified government, bill approval, and the
legislative weight of the president” (Comparative Political Studies, forthcoming), coauthored
with Ernesto Calvo; “Comparing cosponsorship and roll call ideal points” (Legislative
Studies Quarterly 34 (1): 87-116, February 2009), coauthored with Ernesto Calvo, Mark
P. Jones, and Noah Kaplan; “The nationalization of electoral change in the Americas”
(Electoral Studies 27 (2): 193-212, June 2008), coauthored with Marisa Kellam; “Conference
committees in the legislative process of Chile and Colombia” (Política & Gobierno 15 (1):
3-33, 2008), coauthored with Mónica Pachón; “Legislative preferences, political parties and
coalition unity in Chile” (Comparative Politics 39 (3): 253-272, April 2007), coauthored
with Sebastián M. Saiegh.
Fabiana Luci Oliveira obtained her Ph.D. in Social Sciences at the Federal University
of São Carlos (UFSCar) and currently studies Brazilian Supreme Court decisions regarding
public policies. She has conducted research on judicial politics and legal professions since
2000, having published articles on these themes. She coauthored (with Maria da Glória
Bonelli and Rennê Martins) the book Profissões jurídicas e imagem na mídia (São Carlos:
Edufscar/Fapesp), published in 2006.
E-mail: [email protected]
4
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Contributors
Klaus Frey
Klaus Frey was awarded a Ph.D. in Social Sciences by the University of Konstanz
(Germany) in 1997. He is professor of the Department of Environmental Engineering and
the Postgraduate Programme in Urban Management at the Catholic University of Paraná
(PUCPR), in Curitiba, Brazil. His areas of interest are urban governance, public policies
and institutional analysis, sustainable development, local democracy and social network
analysis. Recent publications include: Governança local e tecnologias da informação e
comunicação (edited with Maria Alexandra V. C. Cunha and Fábio Duarte. 2009. Curitiba:
Ed. Champagnat, (forthcoming)), which contains his chapter “Perspectivas da democracia
local na era digital”; “Gobernanza comunitaria y seguridad pública en Brasil” (coauthored
with Sérgio Czajkowski Jr.). In Ciudadanía Vivida, (In)Seguridades e interculturalidad,
ed. B. Potthast, J. Ströbele-Gregor, and D.Wollrad. 2008. Buenos Aires: Nueva Sociedad;
“Governança urbana e participação pública”. (Revista de Administração Contemporânea –
RAC eletrônica, no. 1:136-150, 2007. <http://www.anpad.org.br/periodicos/arq_pdf/a_629.
pdf>); “ICT-enforced community networks for sustainable development and social inclusion”.
In The network society: A new context for planning, ed. L. Albrechts, and S. J. Mandelbaum.
2005. London and New York: Routledge − Taylor & Francis Group; “Démocratie participative
et gouvernance interactive au Brésil: Santos, Porto Alegre et Curitiba” (coauthored with
Fábio Duarte). (Espaces et Sociétés 123 (4): 99-112, 2005).
Ricardo Fabrino Mendonça is a Ph.D. candidate in Communication Studies at the
Federal University of Minas Gerais (UFMG). He is a researcher of the Research Group on
Media and the Public Sphere (EME), UFMG. Recently, he worked as a visiting scholar at
the Deliberative Democracy Group of the Australian National University. His main areas of
interest are: Democratic Theory (with an emphasis on Deliberative Democracy), Theory of
Recognition, Political Communication and Social Movements. Recent publications include:
“Movimentos sociais como acontecimentos: linguagem e espaço público” (Lua Nova, no.
72:115-142, 2007); “Reconhecimento em debate: os modelos de Honneth e Fraser em sua
relação com o legado Habermasiano” (Revista de Sociologia e Política, no. 29:169-185,
2007); “Jornal comunitário e interações discursivas: entre desigualdades deliberativas e luta
por reconhecimento” (Revista Brasileira de Ciência da Comunicação - INTERCOM 31 (1):
105-132, 2008); “A mídia e a transformação da realidade” (Comunicação & Política 24 (2):
9-38, 2006); “Movimentos sociais e interação comunicativa: a formação da comunicação
sem sujeito” (Contemporânea 4 (1): 73-98, 2006); and “Exclusão e deliberação: buscando
ultrapassar as assimetrias do intercâmbio público de razões” (Contracampo, no. 15:201-218,
2006 (co-authored with Rousiley Maia)).
Rogério Arantes
Rogério Arantes is professor of the Department of Political Science at the University
of São Paulo (USP), where he obtained his Ph.D. in Political Science. He has conducted
research on and political analyses of justice system institutions since 1990. Currently,
5
(2008) 2 (2)
1 - 147
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Contributors
he is studying the relationship between the Constitution, democracy and the decisionmaking process in Brazil in comparative perspective. He is the author of various articles
on constitutional issues and two books concerning the political role of judicial institutions:
Ministério Público e política no Brasil (2002) and Judiciário e política no Brasil (1997). His
article with Cláudio G. Couto, “Constitution, government and democracy in Brazil” (World
Political Science Review 4: 2008) was the winner of the 2008 Award of the Brazilian Political
Science Association (ABCP) for best paper published in 2007-2008.
Simone Diniz
Simone Diniz holds a Ph.D. in Political Science (University of São Paulo, Brazil). She
is a professor at the Social Science Department of the Federal University of São Carlos
(UFSCar). Her areas of interest are state government and politics, decision-making and
Executive-Legislative relations. Recent publications: Vinte anos de constituição. (Simone
Diniz and Sérgio Praça, ed. São Paulo: Ed. Paulus, 2008); “Critérios de justiça e programas
de renda mínima” (Revista Katalysis 10:105-114, 2007); “A reforma trabalhista argentina: a
política de prêmios e castigos” (Revista Tempo da Ciência 13:157-176, 2006); “Interações
entre os Poderes Executivo e Legislativo no processo decisório: avaliando sucesso e fracasso
presidencial” (Dados - Revista de Ciências Sociais 48 (1): 333-368, 2005).
6
(2008) 2 (2)
1 - 147
Abstracts
The Role of the Brazilian Congress in Foreign Policy: An Empirical Contribution to the Debate
Simone Diniz (Federal University of São Carlos (UFSCar), Brazil)
Cláudio Oliveira Ribeiro (Catholic University of São Paulo (PUC-SP), Brazil)
The article aims to contribute to the debate on Legislative participation in
Brazil’s foreign policy. The research is based on presidential messages referent to
international agreements forwarded to Congress for deliberation between 6 October,
1988 and 31 December, 2006. We find that the Brazilian institutional model does
not totally restrict the decision-making process concerning international acts to the
Presidency of the Republic and to the Ministry of External Relations. We submit that
by analysing presidential messages referent to international agreements forwarded by
the Executive to Congress for deliberation, and how these make their way through
the Chamber of Deputies, it is possible to identify the existence of a broader spectrum
of political participation than much of the literature tends to point out.
Keywords: Legislative; Executive; Foreign policy; Decision-making.
Development, Good Governance and Local Democracy
Klaus Frey (Pontifícia Universidade Católica do Paraná (PUCPR), Brazil)
This article analyses the concept of “good governance” as promoted by the
international development community, above all by the World Bank, within the
predominant neoliberal development approach, emphasising the implications for
local governance and management in developing countries. Highlighting the extent to
which it is embedded in the neoliberal development approach, the good governance
concept is analysed with regard to its peculiar understanding of participation and
democracy. The article discusses the subordination of the World Bank’s consensusoriented approach of good governance to economic imperatives, fading out the
centrality of its political dimension. In the context of unequal societies, such an
apolitical governance concept only contributes to the strengthening of existing
7
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Abstracts
power relations. In its conclusions, the article stresses the need to rethink the
good governance approach to development and local politics according to Chantal
Mouffe’s agonistic view of democracy, which considers political protest, social
mobilization and politicization as essential conditions for social transformation
and democratic vitality.
Keywords: Good governance; Development; World Bank; Urban governance;
Local democracy.
Policy Positions in the Chilean Senate: An Analysis of Coauthorship and Roll Call Data
Eduardo Alemán (University of Houston (UH), Texas, USA)
This paper examines the policy positions of Chilean senators. The empirical
analysis focuses on two different legislative activities: voting and coauthoring bills.
The roll call analysis evaluates the degree to which coalitions act as cohesive policy
teams on the floor of Congress, whether parties’ positions match conventional
ideological rankings, and the dimensionality of voting decisions. The coauthorship
analysis provides alternative ideal points to examine similar questions. The findings
of the voting analysis reveal a rather unidimensional world with two distinct clusters
matching coalitional affiliation, while the analysis of coauthorship illuminates a more
complex pattern of associations. Neither roll call votes nor coauthorship patterns,
however, reveal substantive fissures within the governing coalition. In comparison,
the opposition coalition appears more divided along partisan lines.
Keywords: Senate; Coalitions; Legislative politics; Roll call votes; Chile.
Justice, Professionalism and Politics in the Exercise of Judicial Review by Brazil’s Supreme Court
Fabiana Luci Oliveira (Federal University of São Carlos (UFSCar), São Paulo, Brazil)
This study analyses interactions between Law, professionalism and politics.
The primary intent is to understand the judicial behaviour of Brazil’s Supreme Court
in the development and consolidation of democracy, by analysing how its justices
voted in decisions regarding the constitutionality of laws (judicial review) in the
1988-2003 period and investigating factors that influenced the Court’s decisions.
These decisions are analysed both quantitatively and qualitatively in search of: a)
voting differences corresponding to the career of each member of the Court; b)
justices’ attitudes as either Constitution interpreters or reproducers of legal texts;
and c) the rapporteur’s profile, as well as the profiles of the justices that voted with
him/her.
I conclude that although political factors do shape the decision-making process
of Brazil’s Supreme Court to some extent, professionalism plays a central role in
determining its judicial behaviour.
Keywords: Brazil Supreme Court; Professionalism; Law and politics; Judicial
politics.
8
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1-147
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Abstracts
Representation and Deliberation in Civil Society
Ricardo Fabrino Mendonça (Federal University of Minas Gerais (UFMG), Brazil)
This paper discusses the issue of political representation, by arguing the
necessity of re-envisioning it so as to consider non-electoral forms of representation.
It claims that civil society associations can be conceived of as representatives of a
series of discourses, voices, opinions, perspectives and ideas. Whilst this type of
representation lacks formal mechanisms of authorization and accountability, its
legitimacy may emerge from the effects of such associations and from their porosity
to several interactional loci. The paper suggests that associations that are open to
several discursive spheres are more prone to foster a discursive accountability, built
within a broad process in which discourses clash in several communicative contexts.
The idea of a deliberative system helps to understand the interconnections among
these interactional loci, as it points to the possibility of a dynamic between partiality
and generality, which is at the heart of political representation.
Keywords: Political representation; Associations; Civil society; Deliberative
democracy; Interactional loci.
9
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1-147
A r ti C L E
The Role of the Brazilian Congress
in Foreign Policy:*
An Empirical Contribution to the Debate
Simone Diniz
Federal University of São Carlos (UFSCar), Brazil
Cláudio Oliveira Ribeiro
Catholic University of São Paulo (PUC-SP), Brazil
The article aims to contribute to the debate on Legislative participation in
Brazil’s foreign policy. The research is based on presidential messages referent to
international agreements forwarded to Congress for deliberation between 6 October,
1988 and 31 December, 2006. We find that the Brazilian institutional model does
not totally restrict the decision-making process concerning international acts to the
Presidency of the Republic and to the Ministry of External Relations. We submit that
by analysing presidential messages referent to international agreements forwarded
by the Executive to Congress for deliberation, and how these make their way
through the Chamber of Deputies, it is possible to identify the existence of a broader
spectrum of political participation than much of the literature tends to point out.
Keywords: Legislative; Executive; Foreign policy; Decision-making.
Introduction
W
hat role does the Brazilian Legislative play in the decision-making process of
international agreements negotiated by the Executive? Are parliamentarians
political actors with the ability to exert influence on such agreements? These questions
guide the approach we develop in this article.
* We are immensely grateful to the valuable observations of BPSR’s reviewers. We also wish to
thank Amâncio Jorge Silva Nunes de Oliveira and Janina Onuki, with whom we had the chance to
share some of the themes dealt with here.
10
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Simone Diniz e Cláudio Oliveira Ribeiro
Since the 1990s, there has been significant progress in analyses of the dynamics of the
Brazilian political system, especially with regard to relations between the Executive and the
Legislative, and to legislative organization. Such studies were developed by following up
domestic politics, relegating to a secondary plane the analysis of the articulation between
the decision-making process and foreign policy.
The distancing between these two fields of knowledge (decision-making process and
foreign policy) has been largely motivated by the predominance of analytical approaches
that, based on the construction of the concept of national interest where the state is seen
as a unitary actor, have inhibited research into the decision-making process. As a result,
research has centred on evaluating international factors conditioning the action of states,
underestimating domestic variables and actors.
In the field of international relations, there predominates a tendency to state that
the Brazilian Legislative is apathetic and/or indifferent to foreign policy questions. The
following factors are commonly cited to explain this lack of interest: the insulation and
level of excellence of Itamaraty (the Ministry of External Relations); the complexity of
international themes, which would require a level of expertise that parliamentarians do
not have; the assumption that members of the Legislative are only interested in issues that
might result in electoral gain, which would not be the case of foreign policy; and, lastly,
the fact that the Brazilian Constitution (CF-1988) itself attributes prerogatives limited to
ex post deliberation to the Legislative.
Some recent studies (Alexandre 2006; Neves 2003; Maia and César 2004) have begun
questioning the assumptions both of those who argue that the Legislative should not have
more say in foreign policy, and of those who in spite wishing for greater participation, state
that the position of parliamentarians is one of subordination to and endorsement of the
policies defined by the Executive.
This article aims to contribute to the debate on the role of the Legislative in the approval
of international acts. In order to conduct the research, we gathered all the mensagens
presidenciais1 referent to international agreements forwarded by the President of the Republic
to Congress for its deliberation between 6 October, 1988 and 31 December, 2006.
The database contains 812 presidential messages. We followed them up as they made
their way through Congress and arrived at the following results: 725 (89%) were approved;
51, at the time the data were gathered,2 were yet to be included on the agenda of the Plenary
of the Chamber of Deputies (Lower House of Congress); 21 were making their way through
the permanent committees; 12 were withdrawn by the Executive, leading to a suspension
of the agreements’ passage through Congress; and only three messages were rejected. Table
1 presents these results.
We thus identified two main groups of international acts, those that were fully
11
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The Role of the Brazilian Congress in
Foreign Policy
processed and became legislative decrees, and a group of “not approved”. Regarding the
latter, we stress that many of the proposals waiting to be included on the order paper of the
Chamber were not deliberated upon due to the presence of provisional measures “locking”
the agenda of the House, since they have priority.3 In other words, there is an agenda external
to international acts, specific to the Brazilian presidentialist system, that has consequences
for the rite and speed with which such matters make their way through Congress.
Table 1 Legislative production: Legislative decrees approved and not approved, 1988-2006
Result of the passage
Frequency
Percentage
Passing
21
2.6
Ready to go onto the agenda
51
6.2
Rejected
3
0.4
Withdrawn by the author
12
1.6
Approved
725
89.2
Total
812
100.0
Source: www.camara.gov.br; data compiled by the authors.
As for the messages withdrawn by the Executive, one should not assume a priori
that the withdrawal was motivated by potential resistance, or even a veto, on the part of
the Legislative to the agreements. However, this possibility cannot be discounted either.
In our view, the motives leading the Presidency of the Republic to request a withdrawal
constitute an empirical question requiring investigation.4
In this article we concentrate our analysis on projetos de decreto legislativo (PDLs)
(“proposed legislative decrees”) actually approved, i.e., those that have made their way through
the Chamber of Deputies fully and have become legal norms. The path taken by them in the
Federal Senate, as well as the decrees not approved, will be analysed at another occasion.
Our objective is to present possible indicators to measure the participation of the
Legislative. Hence, we initially quantified parliamentarians’ actions in the process of
deliberation of international accords in Brazil. Then, with the aim of providing a more
qualitative treatment to the analysis, we selected those messages whose records indicated
that parliamentarians had made comments or suggestions, by means of the opinions
presented by the rapporteurs of the matters in question.
We have organized the text as follows: in the first section we briefly review the
literature on the theme in question. Next, the focus is on the Congress in action: we
analyse the process by means of which the Legislative acts on foreign policy matters, i.e.,
the presentation of and deliberation on legislative decrees. In the final remarks, we review
the main results of the research.
(2008) 2 (2)
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12
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The Brazilian Congress and Foreign Policy:
Notes on the Literature
From the late 1980s, there appeared studies questioning the assumptions of the
realist school, whether regarding the “ineffectiveness” of democratic regimes in ensuring
international commitments, or the analytical rigidity in relation to elements of causality in
foreign policy (Lima 2000).
The point was reviewing the weight of domestic conditioning factors on the foreign
policy decision-making process, which the literature traditionally tended to identify as
negative aspects, since they allegedly create a diversion or turbulence in the conduct of the
foreign policy led by the statesman (Morgenthau 2003; Kennan 1984).
Authors such as Hill (2003), Hudson (2005), Milner (1997), Martin (2000) and Putnam
(1988) have presented alternative analytical perspectives to the more traditional theories of
international relations, which cling to the premise that the foreign policy of states, seen as
unitary and rational actors, is a reflection of risks and opportunities derived essentially from
the international system. As highlighted by Hill (2003), this movement brought a new dynamic
to the field of reflection about what foreign policy is and how it is formulated.
A work of reference within this new perspective is that by Putnam (1988). This is
so firstly because it emphasises the causal dimension of domestic policy on the formation
of international policy; secondly, because it indicates the need for domestic ratification of
international commitments when the latter involve domestic distributive questions, in turn
generating costs that lead to the mobilization of actors positively and negatively affected.
With the proposition of two-level games, Putnam’s pioneering study demonstrates
that the success or failure of states’ external action is linked not only to the phase of
international negotiation (level 1), but also to the capacity to satisfy domestic pressures and
interests (level 2). An approach that questions the very belief in the distinction between
the domestic and the international, which ended up disturbing the supporting pillars of
realism, is derived from Putnam’s proposition.
According to Putnam’s argument, at the domestic level, societal groups pursue their
interests by putting pressure on the government to adopt certain policies. As a consequence,
political decision-makers hanker after power and build coalitions among these groups. In the
case of the international environment, national governments make efforts to maximize their
ability to satisfy domestic pressures whilst minimizing the adverse consequences of foreign
policies. Neither of these two games can be ignored by the decision-maker. Consequently,
in the two-level game the movement of the actors is simultaneous.
The essential assumption of this reasoning is that the state cannot be conceived of as
a unitary actor. The realist metaphor of the state as a pool ball (Waltz 2004), representing a
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single interest in the international setting, loses its efficacy and explanatory capacity. In this
case, what matters is unravelling the black box of the state. The main aim is knowing how,
at the domestic level, the different national interests are formed, what the relevant factors
are, why this process occurs and, lastly, how this question is processed at the international
level (Kubálková 2001).
Within this line of argument, the works by Milner (1997) and Martin (2000) draw
attention to the complexity inherent to the process of foreign policy-making with its domestic
conditioning factors as the starting point. They stress the interests, perceptions and values
of those who, to a greater or lesser extent, are affected by the international acts signed
up to by the state and are therefore concerned about influencing decisions to be made by
negotiators on the international plane. Parties, unions and other political players able to
influence the state decision-making process are mentioned as fundamental actors.
In her work, Milner (1997) remarks that the analysis of states’ international negotiation
processes must take into account the institutionally established form of interaction between
the Executive and the Legislative. This proposition is based on the premise that only by
means of a careful examination of the competencies, limits and functioning of these two
actors in decision-making processes relating to international questions, is it possible to
identify and evaluate the weight of domestic institutional arrangements on the country’s
international action.
The basic assumption of this approach is that the relationship between the Executive
and the Legislative, as regards the state’s external action, is conditioned by a Constitution.
Given the constitutional attributes that the Executive and the Legislative have in foreign
policy matters, it is correct to state that Congress ends up playing a legitimating role in
relation to the political decisions of the Executive referent to the international arena. This
role is largely consequent on the fact that Congress is, in the last instance, the locus of
the political parties and, hence, a legitimately constituted channel of representation for
societal interests.
In Milner’s (1997) reading, cooperation between states tends to be substantially
affected by the consequences of the distribution of power at domestic level, where three
types of actors would be able to define foreign policy: the Executive, the Legislative and
interest groups.5 Hence, the place taken up by domestic policies, i.e., by the domestic
actors, acquires a notable standing in international negotiations, since both success
and failure in such negotiations are owed to interest groups of the domestic plane, in
the last analysis.
Starting off from the assumption that the preferences of these three actors differ, the
author proposes to analyse them on a one-dimensional scale, considering that the position
taken on by each is able to influence the others’ and thus to determine the foreign policy.
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In this aspect, Milner considers it necessary to identify which is the more dovish actor (i.e.,
more conciliatory towards the government) and which is the more hawkish (i.e., the one
with a harder position vis-à-vis the government). Given this diagnosis, one arrives at the
conclusion that the more a dovish domestic actor supports the government, the greater are
the chances of there being international cooperation.
Martin (2000), on the other hand, began applying the assumptions of the theory
of delegation to studies of the foreign policies of the USA and European parliamentary
countries. A key hypothesis of her work is that in the US case, there is delegation of
powers from the Legislative to the Executive with regard to foreign policy, but due to the
institutional characteristics of the political system, the Legislative safeguards for itself the
prerogative of influencing foreign policy all the same.
According to Martin, in the event of a convergence of interests, the Legislative does
delegate. In the event of a divergence, the Legislative will seek to increase its participation.
The Trade Promotion Authority fits perfectly well into this kind of analysis. The flip side
of delegation is abdication. The Legislative delegates authority to the Executive, but does
not safeguard for itself any mechanism that allows it to influence the policy in the event
of a conflict of interests.
Along the lines of such perspectives, foreign policy is conceived of as the result of
initiatives taken by different actors, resting with the state — principally, but not exclusively
— the competency and legitimacy to interact with the international environment. Therefore,
the analysis of foreign policy requires a set of instruments capable of incorporating the
study of its decision-making process. The point is re-affirming the centrality of the
decision-making process and rejecting the separation between foreign and domestic policy,
highlighting the importance of the former to understand contemporary international
relations (Kubálková 2001).
Martin’s study has become a reference for much of the work developed in Brazil.
Some analysts, using the author’s theoretical arguments, have begun searching Brazil’s
institutional arrangement for mechanisms that might express or materialize delegation.
It so happens that the country’s institutional arrangement, as regards international
acts, provides for ex post Legislative action. There is no explicit delegation mechanism, as
in the US case. As remarked by Neves (2003, 117):
The difficulty in analysing the convergence and divergence of interests between
the Legislative and the Executive branches in Brazil occurs because there is no
mechanism of delegation of authority as in the United States (TPA). Furthermore,
the absence of a clear mechanism of delegation of authority is the main cause of
the perception that the Legislative is alien to international questions.
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In the absence of constitutional prerogatives setting out parliamentarians’ ex ante
participation, those who study the relationship between the Brazilian Executive and
Legislative as regards foreign policy face the difficult task of finding an indicator that would
allow them to ascertain whether parliamentarians participate in international acts or not.
What kind of indicators may be used? How could one measure the participation of the
Legislative? How might one evaluate whether there is a convergence of interests between
the branches in relation to foreign policy?
In a study that evaluates parliamentarians’ participation in matters of foreign trade,
Lima and Santos (2001) argue that the Legislative went from a position of delegation of
powers to the Executive during the Juscelino Kubitschek presidency (1956-1960) to one of
abdication, exempting itself from making any kind of decision with regard to the commercial
measures implemented over the course of the 1990s.
Oliveira (2004) analysed party programmes with the aim of checking the position of
political parties as to the creation of the Mercado Comum do Sul (Mercosul). According
to the author, Mercosul negotiations were concentrated on the Executive, discouraging
the participation of legislators, and even of parties, in regional integration. His conclusion
indicates that the participation of the Legislative and of parties in the process of integration
only takes place when a specific conflict occurs between the bloc’s two main countries,
Argentina and Brazil, as happened with the sugar sector.
On the basis of these studies, one concludes that greater participation on the part
of the Legislative, though desirable, has not yet reached significant levels in Brazil’s
polyarchical system.
Research by Alexandre (2006), Neves (2003) and Maia and César (2004) emphasises
precisely the fact that a new trend of widening participation of the Legislative in foreign
policy matters is taking shape. In the eyes of these authors, the Legislative is not a mere
spectator of the foreign policy formulated by the Executive.
Neves (2003) sought to evaluate the relationship between the Executive and
Legislative branches in Brazilian foreign policy formulation, in a study encompassing the
regional economic integration accords of the Mercosul and the Free Trade Area of the
Americas (FTAA) . The author takes up Martin’s (2000) theoretical structure, concluding
that in the case of the Mercosul there was a delegation from the Legislative to the Executive
and a convergence of interests between the two branches, thus making a direct legislative
participation unnecessary. In order to demonstrate the convergence of interests, the author
resorts to the constitutional review process of 1993-1994. According to Neves (2003, 120),
six constitutional review amendments were passed. Given that none of them dealt with
foreign policy, the convergence would thus be proved.
In this case it is worth recalling, as documented by Melo (2002, 76), that the
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constitutional review process “suffered the devastating impact of contextual factors such as
electoral constraints, the polarization of the public agenda and the structure of incentives
with which the Executive and Legislative were faced in the context of the Parliamentary
Committee of Inquiry into the budget.”6 Restricting oneself to analysing six amendments
deliberated upon in the context of a transitional regime — it is worth remembering that the
calendar of the constitutional review coincided with the immediate aftermath of President
Collor’s impeachment —, in a turbulent period, may not be enough to demonstrate the
convergence of interests between the two branches.
The other two studies tackled more forcefully the challenge of evaluating Legislative
input in foreign policy.
Maia and César (2004, 364) draw attention to the fact that “congressional influence
in foreign policy design may not be restricted to the mere exercising of constitutional
prerogatives”. There are other forms of participation (hearings with ministers, requests for
information, participation in delegations etc) that may be used as indicators of participation
and/or interest in foreign policy on the part of the Legislative.
By analysing the involvement of the Brazilian Congress in the Treaty on the NonProliferation of Nuclear Weapons and in the agreement about Alcântara base, the authors
describe the major backroom action conducted by parties in opposition to the Fernando
Henrique Cardoso government, which does not square with the diagnosis of disinterest.
They also draw our attention to the mechanism of recording separate votes, activated by
some parliamentarians as a way of manifesting their dissenting views explicitly.
However, the empirical analysis remained circumscribed to two international acts,
the abovementioned treaty and the agreement between Brazil and the United States on
technological safeguards related to the latter’s participation in launches from the Alcântara
Launch Centre (CLA).
The authors’ conclusion is that “treaties related to national defence have brought to
the surface the tendency of the National Congress not be contented with approving the
agreements in full, putting forward conditions under which such treaties will be approved”
(Maia and César 2004, 380).
What follows from this conclusion is that the greater or lesser participation of the
Legislative is conditioned by the issue put up for discussion by means of the international
act in question.
The latter aspect is taken up in Alexandre’s (2006, 89) research. According to the author,
the aim of her work is to investigate to what extent the National Congress has sought to
increase its institutional participation in the foreign policy-making process. She also raises the
question of whether this attempt at increasing participation occurred as a function of a certain
matter or as a function of a convergence or divergence of interests with the Executive.
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With regard to the first objective, the author takes up the discussion had during the work
of the National Constituent Assembly, emphasising the efforts made by parliamentarians to
ensure a larger role for themselves, especially in connection with international acts related
to the foreign debt.
Alexandre (2006) refutes the argument of Maia and César (2004) by analysing seven
international acts relating to the commercial use and safeguards of the CLA and to the
signing and ratification of the Comprehensive Nuclear Test Ban Treaty.
The author demonstrates that the greater participation of the National Congress does
not result from a specific theme. Participation was intense around certain international acts
involving security, but not others:
Congress did not have an interest in manifesting itself about every issue of
security and national defence. The institution follows a rational logic that means
it manifests itself only when it does not agree with the understanding proposed by
the Executive, at least as regards the cases presented (Alexandre 2006, 120).
Once again, Martin’s (2000) argument is taken up. The relationship between the
branches is one of delegation and for it not to be classified as abdication, “it is necessary for
there to remain an efficient control mechanism for the National Congress” (Alexandre 2006,
120). Which mechanism would that be? Says the author: “[…] faced with the impossibility
of total control (‘police patrol’), the cases brought up here seem to evince the existence of
a ‘fire alarm’-type control mechanism”. In this sense, the interest of the National Congress
in supervising certain foreign policy questions would be as a function of the “activation of
this alarm by certain social groups” (Alexandre 2006, 120).
If the central argument of Alexandre’s (2006) analysis is that the Legislative manifests
itself when the “alarm” goes off, having been triggered by certain social groups, one may
infer that parliamentarians are only interested in foreign policy themes if so motivated by
society. In a way, the author endorses — even though unintentionally — the argument she
tries to combat: the supposed disinterest of the Legislative in foreign affairs.
The analysis we present sets off precisely from this point. We will not resort to
the arguments of delegation versus abdication. Our understanding is that if there was
delegation, it manifested itself during the work of the National Constituent Assembly,
which established the current prerogatives for the actions of the Executive and Legislative
branches of government. However, we use the distinction made by Martin (2000) between
“action” or “activity” and “influence” for the analysis of Brazilian Legislative participation
in the deliberation process of international accords.
Martin (2000) alerts us to the mistakes we can make if we assume “activity” and
“influence” to be synonyms, or even that there should be a correlation between them. If
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we make them synonymous, we are easily led to conclude that the Executive is the main
actor in the foreign policy field.
According to the author (Martin 2000), parliamentarians’ influence is greater than
generally considered by specialists. At times, the Executive may anticipate possible negative
reactions of the part of the Legislative and conduct the negotiation of the accord in such
a way as to incorporate parliamentarians’ preferences. In this case, there would be an
absence of “activity” but not of “influence”. Legislatures can also exert a significant degree
of influence through indirect mechanisms of control, stopping or stalling deliberation of
an international act.
The test of the “hypothesis of influence” (Martin 2000, 48), could be formalized
by checking the (in)existence of mechanisms at the disposal of the Executive that would
allow it to interfere in or diminish the ability of the Legislative to influence the deliberation
of international acts. The alternative hypothesis is the “hypothesis of evasion”, i.e., the
existence of an institutional structure that allows the Executive to take evasive action, thus
avoiding a possible obstruction by the Legislative.
In this sense, an aspect to be investigated is whether the legislature’s organizational
structure and/or rules that establish the parameters for legislative deliberation allow
parliamentarians to utilize such procedures.
It is well known that the Executive branch in Brazil holds significant agenda-setting
powers (Figueiredo and Limongi 1999; Santos 2003; Rennó 2007, among others), which
allows it to control legislative work as regards ordinary legislative production (that is,
ordinary bills and provisional measures). It remains to be seen whether this control of the
agenda is also manifested in deliberations of proposals related to international acts.
The survey of the parliamentary process undergone by PDLs has revealed that
mechanisms of agenda-control, such as the possibility of requesting urgency, thus evading the
prerogative of the permanent committees to deliberate upon proposals under their jurisdiction,
also apply to the deliberation of PDLs. This means that the possibility of the Legislative
influencing international agreements through procrastination or obstruction at permanent
committee level is bound by the limits established by the organization of the legislative process
in Brazil. We thus stress that as with the domestic plane, the format of legislative organization
and/or way the decision-making process is organized is a fundamental variable to understand
the participation of the Legislative in the deliberation of foreign policy.
The results arrived at indicate that the Executive, with the support of the leaders of
parties that support the government, can undermine or even remove the room for manoeuvre
leading to potential Legislative influence.
Our conclusion is that the analysis made here does not permit an endorsement of the
diagnosis of parliamentarians’ indifference in relation to foreign policy questions. If on the
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one hand the level of participation and influence of the Legislative is lower than expected
for a polyarchical regime, on the other, the institutional space for parliamentarians’ activity
is a variable that one must not fail to take into account.
Having made these initial remarks, in the next section we will deal with the deliberative
process of international acts in Brazil.
The Legislative Process in the Approval of International Agreements
The 1988 Constitution (CF-1988) attributes to the President of the Republic the exclusive
prerogative of signing treaties, conventions and international acts subject to ratification by
Congress (article 84, section VIII), and confers upon the Legislative the exclusive competency
of resolving definitively about treaties, agreements and international acts that lead to heavy
burdens or commitments upon the national finances (article 49, section I).
The legal literature dealing with the role of the Legislative from the perspective of the
capacity of this branch of government to deliberate on international acts tends to highlight
the following aspects: first, the action of the Legislative is ex post, i.e., parliamentarians
manifest themselves about a certain international act after a previous negotiation conducted
by the Executive with foreign agents; second, the constitutional precept does not allow
the Legislative to alter the text agreed by the Executive; third, the final decision about the
negotiated act is an exclusive prerogative of the Presidency of the Republic.
In relation to the third aspect, with regard to the constitutional text about the
Legislative prerogative of “resolving definitively”, some studies tend to consider this an
inadequate expression, since the effectively definitive decision belongs to the President of the
Republic. This is because after the National Congress deliberates on a legislative decree (the
instrument by means of which the Legislative expresses its agreement, or lack thereof, with
the international act negotiated by the Executive) it is up to the President of the Republic to
ratify (or not) the international act in question. The legislative approval simply translates the
absence of opposition to the international treaty (Medeiros 1995; Rezek 1973).
On legislative approval for international acts, Mazzuoli (2001, 89) argues:
The ad referendum competency of Congress is limited to the approval or
rejection of the text of the convention, with any interference in its content being
inadmissible. Should Congress agree with the signing of the international treaty, by
means of the legislative decree, carte blanche is given to the President of the Republic
to ratify the signature already deposited, or even to join, if this is not yet the case.
As for the possibility of amending, according to Mazzuoli (2001, 99), it refers only
to alterations in legislative decrees, never to the text of the treaties submitted, which are
not prone to any change whatsoever.
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The prerogatives of the Legislative established by article 49 of the CF-1988 have
also led to doubts on the part of parliamentarians themselves: is “resolving definitively”
restricted to approving or rejecting international acts or would a partial approval be legal?
In other words, does the Legislative branch have the prerogative of formulating reservations,
introducing conditions and even presenting amendments to the international acts submitted
to Congress for deliberation?
These questions were tackled on three occasions by the Constitution and Justice
Committee (CCJ) of the Chamber of Deputies. Below, we reproduce the opinion of the
rapporteur, Deputy Aloísio Nunes Ferreira (Partido da Social Democracia Brasileira - PSDB
[Party of Brazilian Social Democracy]), in response to consultations made to the CCJ:
If by amending one means the power or ability by the National Congress to
present amendments directly to the text of an international act submitted to it, then
the answer will be no […]. If one considers the power to amend in the broad sense,
i.e., as an expression of the conviction of the National Congress about the matter,
resulting from parliamentary deliberation, by means of which it establishes the terms
and conditions under which it agrees or even advocates the assumption of certain
international obligations by the country, then the answer is positive.7
The abovementioned opinion makes it clear that the possibility of presenting
amendments directly to the international act does not exist, but stresses that this does not
mean that Congress, its committees and members must abdicate from the analysis and,
“if necessary, from intervening in the content of the obligations inserted in the text of
international acts under its consideration, during the course of the process”.8
Legislative participation in the process of deliberation of international acts, bearing
in mind that it is forbidden from intervening directly over them, is manifested by means of
PDLs, expressing agreement or disagreement with the terms and content that make up the
international act. Hence, the possibility of amendment or of partial approval is restricted
to that proposition.
According to the CCJ report, the PDL may thus display the following contents:
a) total approval of the international act;
b) partial approval, a case in which approval will be conditioned;
c) rejection, a case in which the legislative decree is not published.
The PDL constitutes and serves as an instrument of legislative process under
which the international act makes its way through the National Congress but in
the end, in the face of the rejection of this act, the PDL does not advance and is
not converted into a legal norm. In this case, it is up to the National Congress to
convey the rejection to the Executive, by means of an official letter. (Rapporteur’s
opinion).
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The legislative process that PDLs follow has certain specificities when compared to
other propositions.
The formulation of a PDL begins with the dispatch to the Chamber of Deputies of
a presidential message requesting the examination of an international act. In this House,
the message is forwarded by the Mesa Diretora (Governing Board) to the Foreign Affairs
Committee (CRE), with specifications as to the procedural regime, i.e., ordinary, priority
or urgency.9
In the ordinary regime, the proposal must be analysed at the CRE within a maximum
of forty sessions; the priority regime establishes a deadline of ten sessions; and the urgency
regime has a five-session deadline.10 In case the matter in question is considered relevant
and of pressing national interest, it may be included automatically in the day’s order of
business, for immediate discussion and voting, by means of a requirement made by an
absolute majority of members or of leaders representing this number, and approved by a
majority.
At the CRE, the chairperson designates a rapporteur for the matter, who is charged
with preparing an opinion proposing the approval, partial approval or rejection.
If the CRE’s opinion favours the approval of the matter, the message becomes a PDL
and makes its way to the other thematic committees (if so designated) and to the admissibility
committees, the CCJ and the Finance and Taxation Committee (CFT).12
Once passed by the merit and admissibility committees, the PDL goes before the full
Chamber, which must deliberate on the proposal by a single-round vote. If approved, it is
forwarded to the Federal Senate for its deliberation.
The rite followed in the second house is similar to the Chamber’s. With the passage
concluded, the Speaker of the Senate sends a message to the President of the Republic and
official letters to the First Secretariat of the Chamber of Deputies and to the Minister of
External Relations informing them of the approval, or not, of the international act.
Given the above, a possible way to evaluate the participation of the Legislative in the
deliberation of international acts consists of quantifying and analysing the PDLs that made
their passage through the two houses of Congress. This is the objective of the next section.
The Participation of Federal Deputies
in the Deliberation of International Acts
A significant portion of the expert literature assumes that Legislative action referent
to foreign policy is restricted to endorsing or providing a mere seal of approval to the
international acts negotiated by the Executive. That would be a limited participation, bearing
in mind that the current Brazilian constitutional regime confers on the Legislative Branch
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just one participation, at the end of the process.
If by endorsement or seal of approval one understands that PDLs only approve
international acts, then that was not the result we found. Considering their passage in all
the deliberative spaces of the Chamber of Deputies, we came across 49 opinions containing
partial approval. This may be small compared with the number of messages sent to the
Chamber for deliberation, but is not inexistent, as the literature had led one to believe.13
From the point of view of the constitutional structure, the Legislative input is limited
to approval, partial approval and rejection. However, given the operational characteristics of
Brazilian presidentialism, there is another aspect that must not be forgotten: the cooperation
of the Legislative, or at least part of it, in facilitating the approval of the international act
negotiated by the Executive, ensuring not only that the PDLs will be voted, but also avoiding
possible veto points and resistance on the part of the Legislative. We are referring to the
urgency requests made by party leaders.
Figueiredo and Limongi (1999) have demonstrated the crucial importance of this
instrument in guaranteeing success for the Executive in matters referent to domestic policy.
Because they control the agenda of legislative business, the Mesa Diretora and the Colégio
de Líderes (College of Leaders) constitute central elements in favouring the legislative
process of propositions made by the Executive. The situation is no different in relation to
international acts.
If on the one hand the level of activity of the Legislative as regards reservations to
international acts is modest, on the other, the level of activity of the Colégio de Líderes,
requesting urgency for such matters, jumps to around 30% of the acts approved. In other
words, party leaders resorted to this instrument 258 times. Table 2 indicates the procedural
regime of the PDLs submitted to the Legislative.
Table 2 Procedural regime of international agreements, 1988-2006
Procedural regime
Foreign Affairs Committee
Other thematic or
admissibility committees
Urgency
8
265
Priority
180
-
Ordinary
498
220
Urgency (Leaders)
39
219
No information
-
21
Total
725
725
The urgency, priority and ordinary regimes are determined by the Mesa Diretora at
the moment of distribution of the messages. In turn, urgency requested by party leaders
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expresses the intention of the government and/or the pro-government bloc of speeding up
deliberation of a matter or of removing it from the reach of the committee where it is at
that moment.
A pertinent question is: what motivates party leaders to resort to the urgency
mechanism? We can list the following possibilities:
• parliamentarians are not interested in the matter and let it make its way
indefinitely;
• in the event of a divergence of interests, not deliberating may be a strategic recourse
of greater significance than taking the proposal to a vote to reject it;
• urgency can also result from a certain expectation of the Executive regarding the
behaviour of the Legislative.14
It is impossible to predict the exact reasons why urgency is requested. Maybe the fact
that parliamentarians are delaying a decision, or perhaps fear on the part of the Executive
that the parliamentarians who sit on the committee might create some kind of difficulty.
However, the occurrence of urgency requests is a clear sign that the Executive had an
interest in the approval and the Legislative, for lack of interest or divergence of interests,
was delaying the decision.
Taking the proposition to the Plenary for deliberation via an urgency request is an
effective way for the Executive to be successful in its preferences. It leads to a mobilization
of the pro-government coalition to ensure the approval. This mobilization may not be
enough to demonstrate the interest of the Legislative (or at least of those who make up
the pro-government caucus) in such questions, but neither will it be possible to use it as
an argument to show disinterest.
We return to the question of how to evaluate the interest, or lack thereof, of the
Legislative in foreign policy. One possible indicator is the partial approval or the approval
with reservations of PDLs. We have already seen that there are few cases (49), but even so
it is an indicator worth using.
The analysis of the content of the reservations made by the Legislative revealed that in
most legislative decrees, parliamentarians sought to safeguard their prerogatives as set out in
the Constitution, including an article stressing that whichever acts meant to revise agreements
approved or complementary adjustments require the approval of the National Congress.
The PDLs relating to nuclear questions are also examples of legislative action geared
to ensuring functions already guaranteed in the Constitution. In line with the CF-1988,
one began including a clause restating that any nuclear activity on national territory will
only be admitted for peaceful ends and with the approval of Congress.
Among the PDLs approved with reservations, beyond the abovementioned safeguards,
we found some cases of specific suggestions as to the terms of international acts, which
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were not particularly controversial. An example is the Protocol of Educational Integration
and Recognition of Certificates, signed by Brazil and the other member-states of Mercosul,
plus Bolivia and Chile.
Deputy Roberto Jefferson (Partido Trabalhista Brasileiro - PTB [Brazilian Labour
Party]), rapporteur of the PDL at the CRE, added a reservation, suggesting that to ensure
implementation of the Protocol, “the Ministers of Education of the Mercosul will endeavour
to incorporate minimum curricular content of History, Geography and the languages of
each of the states-parties, organized by means of instruments and procedures agreed by
the authorities of each of the signatory countries”.15
Another example is the Brazil-USA agreement on cooperation between their economic
competition authorities. The broad guidelines of the agreement are: a) the establishment
of a system of notification of anti-competition practices affecting both parties; b) the
possibility that one of the parties requests from the other an investigation into a practice
that took place on the latter’s territory, with possible effects on the former; c) suggests
coordination of the activities of pertinent agencies, in the case of investigations conducted
by the two parties, creating mechanisms of cooperation and coordination for this purpose;
d) establishes a system of consultations between the agencies and regular meetings between
the authorities; and e) sets out the possibility of technical cooperation.
In order to produce the report, Deputy Carlos Pannunzio requested from the
Chamber’s Legislative Consultancy a comparative study of Brazilian and US legal texts
mentioned in the agreement itself. The conclusion of his opinion is that the agreement
does not collide with the current norms of our system, and is meant to establish
channels of understanding and cooperation with the USA, while maintaining intact the
domestic norms of the parties. However, among the Brazilian legislation mentioned, the
rapporteur’s understanding is that Provisional Measure (MP) 1567/97, which relates
to the regularization, administration and sale of Federal real estate, does not have any
correlation with the matter covered by the agreement. Hence the reservation, suggesting
that this MP be excluded form the text.16
In two other agreements, one signed with Ecuador and the other with Peru, about the
provision of technical support to the operations of the Military Observers’ Mission, specific
reservations were raised due to the fact that the original texts mentioned the Minister of
the Army. At the moment of the PDL’s examination, the referred ministry had become the
Army Command, subordinated to the recently created Ministry of Defence. The reservations
presented suggest that the competencies attributed to the former ministry be passed over
to the Ministry of Defence.17
The Legislative also presented reservations to the approval of the Inter-American
Convention on Serving Criminal Sentences Abroad, concluded in Managua on 9 June, 1993.
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The reservation related to section II of article 7, which states that the sentence of a
transferred person will be served according to the laws and procedures of the receiving state.
Joining the Convention would also entail the possibility of applying whichever measures
relating to the reduction of periods of incarceration or alternative serving of sentences.18 The
position of the rapporteur, Deputy Joaquim Francisco, was that Brazil should not accept
the hypothesis of the reduction in custody periods or the alternative serving of sentences,
for which reason section II of article 7 received reservations.
Another agreement that was the object of reservations on the part of the Legislative,
deals with the rights and privileges on Brazilian territory of the Latin American Physics
Centre. Article 7 of the agreement states: “the locations, properties and correspondence of
the Centre are inviolable and cannot be the object of search, requisition or legal sanction
measures”. The rapporteur of the matter, Deputy Eliel Rodrigues, opined that this article
could be prejudicial to national sovereignty and interests in terms of the results of the studies
and of the research conducted by the Centre. According to the rapporteur, the reservation
made to the legislative decree aims at guaranteeing to the Brazilian government free access
to the results of the studies and research projects of the Latin American Physics Centre and
their applications. Further, he suggested that the Brazilian government, on the occasion of
the agreement’s revision, negotiate with the other signatories the insertion of the referred
clause, as a safeguard to national sovereignty.19
International Labour Organization (ILO) Conventions provide cases that exemplify
not only more active legislative work but also the influence of other actors in the process
of deliberation of international acts in this sphere of jurisdiction.
The Executive forwarded to Congress the ILO Convention relating to night work and
the Additional Protocol that bans night work for women.
A 1990 order of the Ministry of Labour created a tripartite (government, business
and workers) committee to discuss the two instruments. In April of the following year, this
committee concluded its work, suggesting the approval of the Convention (with the business
representatives voting against) and the rejection of the Protocol, as it was considered
discriminatory against women.
At the CRE, Deputy Sandra Starling was appointed rapporteuse. Her report fully endorses
the deliberation of the tripartite committee, stressing that whichever acts that might result
from the referred Convention would be subject to deliberation by the National Congress.
The remaining cases of international acts that had some sort of objection from
parliamentarians are more complex and require more detailed information. We begin our
approach with the Convention for the Suppression of Unlawful Acts against the Safety of
Maritime Navigation and the Protocol for the Suppression of Unlawful Acts against the
Safety of Fixed Platforms Located on the Continental Shelf.
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These international acts, according to rapporteur Deputy Fernando Gabeira20 display
some rather polemical aspects. The following are the controversial points and reservations:
1) establishment of the jurisdiction of one state over the illegal acts committed:
The act amounts to the concession of extraterritorial power to a state, thus
hurting the jurisdiction of another. If we give up the exclusive prerogative of trying
crimes that occurred on our territory, as well as hurting our national sovereignty,
we will disrespect the norms and convictions of Brazilian society, such as nonapplication of sentences of life imprisonment or death, both of which exist in other
countries. Brazil must not recognize this instrument and, therefore, we suggest a
reservation on this matter.
2) the power conferred upon ship captains to hand over suspects to the authorities
of any state-party:
The instrument gives ship captains the possibility of handing over any person,
in any country, on the basis merely of “reasonable motives” — and we do not know
what these may be — to undergo investigation, be sued or even tried. A person may
find him/herself arrested in another country, without resources for a proper defence
and submitted to laws he/she does not understand, which, by itself, amounts to an
absurd, “Kafkaesque” situation. Although certainly approved and already in practice
in other countries, we cannot accept that Brazil should agree with an arbitrariness
resulting from the formulation of a norm such as this; hence our reservation.
3) recognition of the obligatory jurisdiction of the International Court of Justice to
settle controversies between the states-parties as to the interpretation or application of the
Convention and of the Protocol:
Article 16 of the Convention rules on the resolution of controversies between
states-parties, stipulating, firstly, a negotiation, then arbitration and, lastly, in case
of disagreement as to the organization of the arbitration, submission of the dispute
to the International Court of Justice. In this case, the problem rests in Brazil’s nonrecognition of the obligatory jurisdiction of the International Court of Justice, as the
Minister of External Relations himself reminded us in his presentation of motives,
which also suggests the presentation of a reservation to this item.
Given the above, the legislative decree approved found in favour of approval of the
texts of the Convention and Protocol with reservation for item 1 of article 6, article 8 and
item 1 of article 16, which deal with the abovementioned aspects.
Another case that was the object of reservations by the Legislative was the Vienna
Convention on the Law of Treaties, of May 23, 1969. The rapporteur, Deputy Antonio
Carlos Mendes Thame, highlighted the implications of the approval of the PDL without the
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due reservations. The controversial points were articles 25 and 66. The former refers to the
coming into force and the provisional application of treaties. Its first section states: “A treaty
or a part of a treaty is applied provisionally pending its entry into force if: (a) the treaty itself
so provides; or (b) the negotiating States have in some other manner so agreed.”21
According to the opinion presented, this diagnosis cannot be accepted by the Brazilian
state, given its incompatibility with the Constitution:
With extremely rare exceptions, due to constitutional measures currently in
force, Brazilian Law does not admit the provisional application of a treaty, since for
Brazil to commit itself internationally the previous assent of the National Congress
is indispensable. Along the same lines, upon ratifying the Vienna Convention,
the republics of Colombia, Costa Rica and Guatemala manifested reservations to
article 25, arguing that its content is not in line with their respective constitutional
texts.
Article 66 regulates the process of legal solution, arbitration and conciliation. According
to the rapporteur, this is the most controversial instrument. Article 45.3 of the Convention
states that in case the parties to a treaty cannot agree on its validity, they must resort to the
means of controversy resolution forecast in article 66. According to this instrument, any of
the parties in a controversy about the application or interpretation of treaties may submit it
to the International Court of Justice, in addition to and by common agreement, to arbitration
or to the Conciliation Committee described in the Annex to the Convention.
The question of the obligation of submitting oneself to the decisions of the International
Court of Justice, mentioned in article 66, brings old discussions back to life. At the time when
such questions emerged, there was no consensus on the matter — giving rise to the so-called
“optional clause of obligatory jurisdiction” —, to which Brazil did not associate itself.
According to the rapporteur’s opinion:
Against the International Court of Justice there remains its impossibility to
compel states with a veto on the UN Security Council to respect its judgements. Just
to illustrate the point, one might mention the recent controversy between the USA
and Nicaragua. Having lost the case, the former simply ignored the Court’s sentence
even though it is a signatory to the optional clause of obligatory jurisdiction.
Two other cases, as well as exemplifying situations in which parliamentarians took
up clear positions on the issue under deliberation, also show how foreign questions can
rebound on the domestic policy plane.
The first refers to the Agreement of subscription to shares in the Andean Development
Corporation (CAF).
The CAF is a multilateral financial institution headquartered in Caracas founded
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in 1970. It aims to provide financial services that promote and stimulate the process of
integration and the economic and social development of its member-countries.
Member-countries may take out loans to the tune of up to four times their stock
in the corporation for non-regional projects (i.e., of the borrowing country’s exclusive
interest) and of up to eight times that amount for projects of regional integration with
Andean countries.
The Agreement was approved by the CRE without reservations. It was forwarded to
the Finance Committee, where the rapporteur was of the opinion that the Agreement had an
impact on the federal budgetary laws, as well as requiring an evaluation as to its adaptability
to the multi-year plan and the law of budgetary guidelines. Let us look at the reasons.
According to Deputy Vignatti’s22 opinion, Brazil overshot its loan limits, making it
necessary to increase its stake in the CAF to make it possible to fulfil the contracts signed
and keep open the possibility of undertaking new operations.23
To that end, the Brazilian government formalized a new agreement of subscription
to ordinary capital shares in CAF, to be paid in two instalments, the first, worth US$
24,964,850.00, to be paid within 90 days of the decree’s publication; and the second worth
US$24,976,700.00 to be paid within 12 months of the same date. In the 2003 budgetary
bill, R$ 62.913.942,00 were set aside to make the first payment, using the budgetary dollar
rate adopted for the formulation of that year’s budget.
According to the opinion, there was a budgetary provision only for the first instalment.
As for the second, the budgetary equating would be carried out in 2004 by means of the
inclusion of the respective amount in the budgetary law.
For these reasons, the following message was included in the PDL:
The text of the Convention of Subscription to 4,603 shares of the “C” Series
of the Ordinary Capital of the Andean Development Corporation – CAF is approved,
with the Executive being charged with paying still in 2003 the first instalment of the
new share subscription agreement, as well as with including in the 2004 budgetary
bill a specific sub-title with sufficient resources to carry out the second payment of
the share subscription, as forecast in the Agreement.
Another case involving budgetary issues was the International Cospas-Sarsat
Programme Agreement (ICSPA), which aims to search for and rescue aircraft and ships
involved in accidents by means of satellite signals. It so happens that the terms of adhesion
came with a request for an annual payment of US$10,000.00 to the Ministry of the Air Force
so as to allow for the new financial obligations that resulted from joining the Agreement.
The opinion of rapporteur Sérgio Guerra considers that, as regards the merit, the
reasons listed by the Minister of the Air Force and taken on board by the CRE were enough
for the proposition to be considered opportune and advantageous for Brazil. However, with
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regard to the budgetary credit, the rapporteur had the following to say:
The concession of a credit worth US$10,000.00 to the Ministry of the Air
Force budget is absolutely deprived of constitutional grounding and, consequently,
of the related legislation, for, as well as forecasting resources budgeted in a foreign
currency, it creates the figure of the annual, fixed, permanent budgetary earmark,
and, furthermore, does not indicate the source of the resources for this purpose.
The PDL approved hence states that “the Executive Branch will include in the
proposed general budget of the Union, forwarded annually to the National Congress, the
necessary budgetary funds for the fulfilment of the financial obligations resulting from the
adhesion to which article 1 of the decree refers.”24
So far, we have seen cases where the Legislative actually manifested itself about
international acts forwarded to it for deliberation. In the next section, we present other items
of information on the passage of PDLs that we judge to be important for one to have a better
understanding of the attributions of the Legislative as regards foreign policy questions.
The Deliberation of PDLs in the
Decision-making Forums of the Chamber of Deputies
It is widely known that the decision-making process in the Brazilian Congress is
centralized in the Mesa Diretora25 and the Colégio de Líderes,26 which neutralizes possible
advantages of the organization of legislative work into committees, such as gains of
specialization on the part of parliamentarians, for instance.27
One of the consequences of this centralization is the lower level of autonomy that the
Legislative has to perform its functions, in a context in which the Executive is endowed
with prerogatives that favour its bills, such as the capacity to determine the time of passage
of its proposals or of those considered by it to have priority, via constitutional urgency or
through urgency requested by the party leaders, and the use of provisional measures.
The 1988 Constitution tried to make sure the Legislative would have more room for
its work, via the committee system, by adopting the so-called “conclusive power”. This is
an instrument that allows the deliberation of a proposal to conclude at thematic committee
level, without the need for deliberation by the Plenary, unless an appeal is made against
the committee’s decision. However, according to Figueiredo and Limongi (1999), this
instrument has a very small effect on the legislative process, and in the specific case of the
propositions being analysed here it is not even used.
As we have seen, the Foreign Affairs Committee (CRE) is the first body to have a say
in the deliberation of an international act. Our follow-up of the passage of PDLs indicates
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that there are significant differences regarding the work of the Legislative when comparing
the deliberative process within the CRE with that of other committees in relation to two
aspects: the raising of reservations and the procedural regime.
As for the former, the data indicate that most reservations presented did not originate
at the CRE, but from other committees (merit and admissibility). At the CRE, only six
international acts underwent some kind of reservation. Since the committees have specific
jurisdictions, maybe the low rate of reservations was owed to the fact that the items in question
fell into the field of jurisdiction of another thematic committee, rather than the CRE.
Another aspect that draws one’s attention is the fact that the CRE tended to deliberate
via the ordinary and priority procedural regimes, i.e., regimes that permit deliberation over
longer periods. As shown by Table 3, the situation is inverted in the case of the other decisionmaking spaces, where there is more frequent recourse to so-called urgency regimes.
Table 3 Passage of PDLs and decision-making forums, 1988-2006
Deliberative Forums
Reservations
Ordinary
Priority
Urgency
Urgency (Leaders)
CRE
6
498
183
8
39
Other committees
43
244
-
265
219
The scarcity of studies both on the permanent committees and on the decision-making
process of international acts at legislative level makes it difficult to explore more fully the
previous indications. However, we believe it is worthwhile to put forward the following
question. Why were the mechanisms that speed up passage (urgency requests) used so
seldom in this Committee? Maybe the answer can be found by means of an analysis of
its party make-up. A committee made up of a disciplined pro-government majority does
not require mobilization via urgency requests from the Presidency of the Republic or progovernment party leaders. An in-depth study of the CRE itself, its composition and activities
in the deliberative process could provide a significant contribution to this debate.
An argument that recurs in studies that point out the problems emanating from
greater Legislative participation in foreign policy questions refers to the moroseness of
parliamentary deliberation.
In the period under analysis, some 59% of the PDLs approved made their way through
the Chamber in up to a year and a half. We also found that the longer period of passage is
related to the number of decision-making spaces. The need for consideration by various
committees is a consequence of the interdisciplinary nature of international themes, as
observed by Maia and César (2004, 375), and the “porosity of the border dividing the
domestic and international ambits means that subjects that have an interface with foreign
affairs are dealt with at various committees”.
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There are PDLs that made their way through three committees (two of merit and one
of admissibility). One of the consequences of this fragmentation in the examination of PDLs
is that the larger the number of players in the deliberative process, the greater the cost and
the longer the period of deliberation. Given the interdisciplinary nature of international
acts, restricting deliberation to the CRE perhaps is not the best path to take. One may gain
in terms of speed, but one loses in terms of a more careful analysis of international acts.
As demonstrated earlier, most of the reservations to the PDLs were formulated beyond
the CRE’s confines.
Still with reference to the time of passage, the PDLs that underwent faster deliberation
were examined during the first term of President Fernando Henrique Cardoso (FHC). It is
worth stressing that this administration can be considered a mark in terms of the number
of PDLs approved by Congress.
The highlight of President Lula’s administration is the approval of PDLs that had been
making their way through Congress for longer, which confirms the statement by Minister
Celso Amorim (Folha de São Paulo, December 30, 2007, A14) that the Lula government
concluded agreements “that had been put off for many years and that today establish, in
practice, a free-trade area in the region [Latin America]”. Table 4 presents data referent to
the time of passage of PDLs.
In short, although we do not have a parameter to consider the passage of a PDL
speedy or not, the fact is that 50% of them were deliberated upon in up to 18 months. If one
considers that the domestic congressional agenda (examination of provisional measures,
including the possibility of the agenda of the House being “locked”, parliamentary inquiries
Table 4 Time of passage of PDLs per government, 1988-2006
Sarney
15/03/1985
to
15/03/1990
Collor
15/03/1990
to
02/10/1992
Itamar
02/10/1992
to
01/01/1995
FHC (1)
01/01/1995
to
01/01/1999
FHC (2)
01/01/1999
to
01/01/2003
Lula (1)
01/01/2003
to
01/01/2007
Lula (2)
01/01/2007
to
01/01/2011
Total
1 to 3 months
2
4
6
10
7
6
-
35
4 to 6 months
1
4
4
12
1
2
-
24
7 to 9 months
3
9
3
41
7
3
-
66
10 to 12 months
1
8
7
46
8
18
-
88
13 to 18 months
22
14
37
40
36
3
152
19 to 24 months
6
7
28
47
35
-
123
25 to 36 months
8
7
30
32
43
12
132
1
10
3
18
4
36
11
5
37
16
69
225
150
198
35
725
Duration
of passage
37 to 42 months
Over 43 months
Total
7
61
49
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etc) always asserts itself over the foreign congressional agenda, one is forced to recognize that
the criticism levelled at the Legislative for its moroseness in the deliberation of international
acts lacks solid grounding.
The information presented here also seeks to highlight the fact that the format of the
legislative organization is also a fundamental variable to be taken into consideration in the
analysis of the foreign policy activity of the Legislative Branch, interfering in the time of
examination of international accords and in parliamentarians’ capacity to influence — or
not — their deliberation. We are referring to the passage of PDLs with urgency, which, given
the characteristics of the decision-making process in Brazil, allows the Executive to have
greater control over the deliberative agenda of the National Congress.
Conclusion
This article has aimed at contributing to the debate about the participation of federal
deputies in Brazilian foreign policy. The analysis was based on the presidential messages
referent to international agreements forwarded to Congress for deliberation between 6
October, 1988 and 31 December, 2006 and actually approved, i.e., those that fulfilled
the whole procedure of passage and became legal norms. The choice of this source was
owed to the fact that the analysis of presidential messages allows one to follow up and
evaluate the process by means of which the Legislative acts in relation to foreign policy,
through the tabling and deliberation of PDLs. Therefore, they constitute an institutionally
established form of interaction between the Executive and the Legislative with respect to
the country’s foreign policy. They represent a map for all those interested in the activity
of these two players in the decision-making process on international questions, through
which it is possible to evaluate the weight of the domestic institutional arrangement on
Brazil’s international action.
In view of the attributions set out by the Constitution, much of the literature assumed
from the start that the attitude of the Legislative in dealing with foreign policy issues was one
of indifference, limited to endorsing or simply providing a seal of approval to the international
acts negotiated by the Executive. There would remain a merely formal participation for
the Legislative, for its power is restricted to ex post ratification of international accords
developed by the Executive. This approach fails to take into consideration the distinction
made by Martin (2000) between “action” and “influence”. The absence of “action” — in
the case in question, the small number of reservations presented — does not necessarily
imply an absence of “influence”.
Even though the activity of the Legislative is limited to approval, partial approval
or rejection of presidential messages, we have found an aspect that is underestimated by
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the literature, that being the cooperation of the Legislative, which acts as a facilitating
mechanism in the approval of an international act negotiated by the Executive. This
mechanism gets translated into urgency requests on the part of party leaders. Its activation
not only ensures that the PDLs get voted on, but also avoids possible veto points and
resistance on the part of the Legislative.
The urgency request therefore challenges the perception that the Legislative does not
take an interest in foreign policy questions. The activation of urgency makes it clear that
in spite of the Executive’s manifest interest in the approval of the matter, the Legislative
— out of disinterest or divergence — delays its decision. As we have stressed, even though
one cannot state that the urgency request reflects an interest of the Legislative in dealing
with international matters, equally, one cannot put it down to disinterest either.
Having analysed the relationship between institutional factors and foreign policy,
we submit that the Brazilian institutional model — identified by some authors as one of
the main obstacles to the democratization of the country’s foreign agenda — does not
completely restrict the decision-making process on international acts to the Presidency of
the Republic and the Ministry of External Relations.
The analysis of presidential messages referent to international accords forwarded to
Congress for deliberation and their passage through the Chamber of Deputies revealed a
broader spectrum of political participation than much of the literature points out.
It follows that the analysis of foreign policy with domestic ratification as the starting
level, based on the logic of two-level games, is totally feasible within Brazil’s reality. As
we have sought to demonstrate, the need to reconcile contradictory interests between the
domestic and international arenas has in fact been imposed upon the Executive. On this
point, the role played by the Legislative turns out to be substantial.
If one has as a point of reference the conception that foreign policy takes shape in
the effort to optimize national interests on the foreign plane, then one’s analysis of it must
take elements of the domestic order into account. Consequently, one would do well to
incorporate into the analysis of Brazilian foreign policy variables that are basic for one to
understand it and follow it up, such as the orientation of the regime, public opinion and
the role of the Legislative.
Submitted in February, 2008.
Accepted in October, 2008.
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Notes
1 The mensagem presidencial (“presidential message”) is a document that forwards legislative
proposals on the initiative of the Presidency of the Republic to the National Congress for its
deliberation. Provisional measures and international agreements, for example, are accompanied
by presidential messages.
2
The data were collected on 7 November, 2007 by means of a survey of the databases of the
Chamber of Deputies and Federal Senate: www.camara.gov.br and www.senado.gov.br.
3
The provisional measure is a legal tool that allows the Presidency of the Republic to alter the
status quo unilaterally. In 2001, the National Congress promulgated a constitutional amendment
that sought to limit the use of such measures. The amendment established a 45-day period during
which the parliamentarians must manifest themselves. After this, the rest of the legislative
agenda is frozen until the deliberation of the provisional measure is complete.
4
Research conducted by Diniz (2005) demonstrates that the idea that such withdrawals are clear
signs of Legislative resistance to Executive proposals can be a highly misguided one. On the
other hand, research conducted by Alexandre (2006) on congressional actions in the foreign
policy domain between 1985 and 2005 demonstrates that there was a divergence of interests
between the Executive and the Legislative in the cases of 6 out of 22 withdrawn messages.
5
The author classifies the first two groups as political actors, whilst the third is considered a
social actor.
6
The transitory measures of the 1988 Constitution stipulated a constitutional review for 1993.
The review process failed. Of the 17,000 amendments formally tabled, only six were approved.
For an excellent analysis of this debate, see Melo (2002).
7
See Fontanive (2007).
8
Opinion of Deputy Aloísio Nunes Ferreira, annexed to Fontanive (2007).
9
According to Maia and César (2004, 378), the Mercosul Committee was created in 1996. The
role of this committee is not the formal examination of international treaties, as is the case with
the other committees. Its purpose is to follow up the evolution of the Mercosul, serving as a
point of reference and information.
10 See article 52 of the Internal Regulations of the Chamber of Deputies.
11 Article 155 of the Internal Regulations of the Chamber of Deputies.
12 The same procedures as those described earlier in relation to the appointment of rapporteurs
and the presentation and voting of opinions are adopted.
13 It is worth highlighting the fact that this survey was based on documents relating to the passage
of PDLs. Research analysing the texts of the legislative decrees themselves may in future indicate
more accurately the extent of approval, partial or not.
14 We thank one of our reviewers for having brought this aspect to our attention.
15 Rapporteur’s opinion, accessed via PDL passage document: www.camara.gov.br.
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17 Diary of the Chamber of Deputies, November 6, 1999, 52652.
18 Diary of the Chamber of Deputies, February 10, 2000, 7376.
19 Diary of the Chamber of Deputies, March 8, 1999, 1306.
21 Rapporteur’s opinion published in the Diary of the Chamber of Deputies, December 8, 1995,
8399.
22 Opinion of the Finance Committee rapporteur. www.camara.gov.br.
23 According to the rapporteur, the loans funded public sector projects, including the Brazil-Bolivia
gas pipeline and the paving of highway BR-174, to the tune of US$422 million, and trade with
countries of the Andean Community (US$616 million).
24 Diary of the Chamber of Deputies, November 20, 1991, 23728.
25 The Mesa Diretora is responsible for directing the House’s legislative work and its administrative
services. The President (Speaker) of the Chamber of Deputies is in charge of representing the
House when it speaks collectively, of supervising its work and organizing the order of legislative
business, following consultations with the Colégio de Líderes. See Internal Regulations of the
Chamber of Deputies. www.camara.gov.br
26 The Colégio de Líderes is made up of the Leaders of the Majority, of the Minority, of the Parties,
of the Parliamentary Blocs and of the Government. It performs the role of cooperating with
the Mesa Diretora in the definition of Legislative priorities. The College constitutes one of the
most important forums of discussion and political negotiation in relation to the propositions
making their way through the Chamber of Deputies, especially with regard to which matters
will go before the Plenary to be voted on.
27 On the functioning of the permanent committees in Brazil, see Santos (2002) and Ricci and
Lemos (2004).
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IPRI; São Paulo: Imprensa Oficial do Estado de São Paulo.
Neves, João Augusto de Castro. 2003. O papel do Legislativo nas negociações do Mercosul e da
ALCA. Contexto Internacional 25 (1): 103-138.
Oliveira, Marcelo Fernandes de Oliveira. 2004. Atores políticos e Parlamento brasileiro no Mercosul.
Leviathan – Cadernos de Pesquisa Política, no. 1:231-252.
Putnam, Robert D. 1988. Diplomacy and domestic politics: The logic of two-level games. International
Organization 42 (3): 427-460.
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Internal Regulation of the Chamber of Deputies (Regimento Interno da Câmara dos Deputados).
1989. www.camara.gov.br. (accessed November 27, 2007).
Rennó, Lucio. 2007. Críticas ao presidencialismo de coalizão no Brasil: processos institucionalmente
constritos ou individualmente dirigidos? In Reforma política no Brasil, ed. Leonardo Avritzer
and Fátima Anastásia, 259-269. Belo Horizonte: Editora da UFMG.
Rezek, José Francisco. 1973. Direito dos tratados. Rio de Janeiro: Forense.
Ricci, Paolo, and Leany Barreiro Lemos. 2004. Produção legislativa e preferências eleitorais na
Comissão de Agricultura e Política Rural da Câmara dos Deputados. Revista Brasileira de
Ciências Sociais 19 (55): 107-129. ISSN 0102-6909.
Santos, Fabiano. 2002. Partidos e comissões no presidencialismo de coalizão. Dados 45 (2): 237264. ISSN 0011-5258.
______. 2003. O Poder Legislativo no presidencialismo de coalizão. Belo Horizonte: Editora da
UFMG; Rio de Janeiro: IUPERJ.
Waltz, Kenneth. 2004. O homem, o estado e a guerra: uma análise teórica. São Paulo: Martins
Fontes.
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A r ti C L E
Development, Good Governance, and Local
Democracy
Klaus Frey
Catholic University of Paraná (PUCPR),
Postgraduate Programme in Urban Management (PPGTU), Brazil
This article analyses the concept of “good governance” as promoted by the
international development community, above all by the World Bank, within the
predominant neoliberal development approach, emphasising the implications for
local governance and management in developing countries. Highlighting the extent to
which it is embedded in the neoliberal development approach, the good governance
concept is analysed with regard to its peculiar understanding of participation and
democracy. The article discusses the subordination of the World Bank’s consensusoriented approach of good governance to economic imperatives, fading out the
centrality of its political dimension. In the context of unequal societies, such an
apolitical governance concept only contributes to the strengthening of existing
power relations. In its conclusions, the article stresses the need to rethink the
good governance approach to development and local politics according to Chantal
Mouffe’s agonistic view of democracy, which considers political protest, social
mobilization and politicization as essential conditions for social transformation
and democratic vitality.
Keywords: Good governance; Development; World Bank; Urban governance;
Local democracy.
Introduction
A
t least since the end of World War II and the consolidation of a wide-ranging net
of international relations, based on the gradual formation and extension of the
UN-system of global governance, but also due to the international mass media system, the
World has become progressively interdependent. This is not only true in a material sense,
concerning the interchange of material resources, products and money, but also regarding
the flow of ideas, concepts and perceptions that are shaped, or at least influenced, all over
the world, by a kind of global or transnational public sphere (Fraser 2007; Castells 2008).
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Such immaterial flows are grasped, assimilated and incorporated into the national discourse,
by each country and society, trickling down to the regional and local level, in accordance
with the particular societal and political context, influencing local administrative and
political patterns and practices.1
These mutual and complex global-local discursive relational ties are neither of an
exclusively voluntary nor of a democratic kind, but are expressions of hierarchies and a
given distribution of political power, inclusively determined by an unequal distribution of
capacities to dispose of material flows.
This state of imbalance has become very evident in international development policy,
where due to the strong dependency of national governments on international financial
support, the adoption of structural adjustment strategies, prescribed by International
Monetary Fund (IMF) and the World Bank within the overall framework of the Washington
Consensus, has become a condition sine qua non for underdeveloped countries to guarantee
at least short-term governability, paving the way for the new neoliberal global world order
and shaping decisively the current context of development (Stiglitz 2004; Chomsky 2006).
As Stiglitz puts it, developing countries have been forced to adopt a very particular view of
governance, of the division of roles and functions of market and state institutions, as well
as radical economic recipes which are not even shared and adopted by the industrialized
countries themselves (Stiglitz 2004, 289, 295).2
In the context of the hegemonic discourse of neoliberalism, the overall tendency
of unilateral imposition that characterized development agencies’ policies right from the
start (Easterly 2007), found its expression in the discussion about the role of the state
and, as a consequence, in the field of public sector reform. Accompanying a general shift
in the industrialized world (Rhodes 2007, 1244), governance has become a key focus in
the development debate of the 1990s, not only concerning the necessity of restructuring
global governance arrangements in order to overcome the predominance of “donor states”
and of financial interests over the poor states of the South (Theobald 1999, 102; Stiglitz
2004, 36), but also with regard to the restructuring of the state and of state-society relations
within these southern countries, as a basic condition for development (World Bank 2000;
Borges 2003; Führmann 2003; Dolzer 2004; Goldsmith 2007).
Taking into account the overwhelming influence of the principal international aid
institutions, first and foremost the IMF and the World Bank, on national governments’
room for manoeuvre in the field of public sector reform, I try to show in this paper the
transformation of the World Bank’s thinking on the state, the role of the public sector, and
specifically the importance of local government for development. Lastly, I have a look at
today’s dominant good governance conception and its consequences for urban governance
prospects in the developing world. The primary emphasis given to the World Bank is justified
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because of its central position as development agency and, at the same time, scientifically
supported think-tank on development issues. In spite of there existing variations within
the development community, the main international development agencies share an overall
consensus “that ‘good’ (i.e., transparent, accountable, inclusive) governance should be
established and expanded everywhere to boost the tempo of development” (Goldsmith
2007, 166).
Historical Overview of Development Thinking Concerning Public
Management and Urban Governance (with a Special Focus on the
World Bank)
The development community, and more specifically the World Bank as the most
important international development agency, has experienced in recent decades a very
significant transformation in both development discourse and − perhaps to a lesser
extent (Toye and Toye 2005) − practice. At least three phases of development policies and
corresponding state-society concepts can be distinguished (Dolzer 2004; Mestrum 2006;
Cheema and Rondinelli 2007).
In the first phase of post-war development policy, until the 1970s, development was
basically equated with economic growth. In general, since the “hour of birth” of development
policy (Hein 2007) on the occasion of the inaugural address of US President Harry S. Truman
on 20 January, 1949, when Truman laid out some basic principles that strongly influenced
the coming six decades of international development aid, the notion of an underdeveloped
world prevailed. That underdeveloped world had to be boosted to the economic level of the
western developed countries by, basically, importing technology and knowledge, as well as
capital from the advanced developed countries (Bhuiyan 2004; Moraes 2006; Frey 2008).
Salvation and the model to follow would come from the developed West. “The White Man’s
Burden” [the title of Easterly’s recent book] emerged from the West’s self-pleasing fantasy
that ‘we’ were the chosen ones to save the Rest (Easterly 2007, 23).
In Resolution 290 (XI) of the UN Economic and Social Council these principles have
been translated into an ethnocentric policy paper where a “lack of interest in material things”
within poor nations and the unwillingness of people “to make the effort to produce wealth”
have been identified as the main impediments for these countries to join the desirable
development standard of western developed countries (United Nations 1951). In order to
change this “relative preference for leisure” (United Nations 1951) it is necessary to change
society itself: “their habits of life and thinking, their political and legal institutions, the
stratification of their social classes, the design of their civilization” (Moraes 2006); this as
a precondition to transform “the old racist coinage” of the “uncivilized” into the so-called
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“underdeveloped” world, the “savage peoples” into the “Third World”, although maintaining
“a paternalistic and coercive strain” (Easterly 2007, 24). Or as Truman put it, people in
poor countries have first of all to be convinced that something better is possible: “I believe
that we should make available to peace-loving peoples the benefits of our store of technical
knowledge in order to help them realize their aspirations for a better life” (Truman 1949).
In addition, this position was backed up by concerns with the possibility of poverty ending
up in “the adoption of politically dangerous and inconvenient attitudes, i.e., the adoption
of communist and crypto-communist regimes” (Moraes 2006, 38).
The post-war period was, therefore, marked by fundamental faith in the blessings of
industrialization, economic development and technological progress as crucial conditions
for bringing the countries of the south onto the development path taken previously by the
north: “poor countries looked at rich countries as the model to follow” (Mestrum 2006,
63). In order that such a virtuous development process, towards the desired model of the
developed nations, could be initiated, according to this early UN proposal, two fundamental
conditions have to be given and actively brought about: firstly, a strong development state
able to impose burdensome adjustments on the people in the underdeveloped countries, an
ineluctable “destructive agenda” or “cultural massacre” (Moraes 2006, 71); and secondly,
the transfer of necessary resources from the north to the south.
The catch-up modernization advocated should be attained by strong state institutions
as central agents of social and economic development (Hein 2007; Smith 2007), whereas
the different international development agencies, such as the World Bank and the IMF,
should give the necessary support by providing technical assistance and financial resources
to these state agencies, above all in favour of public enterprises (Rist 2001, 146).
A lack of investment capital was identified as one of the main shortcomings of
development policy. This, however, according to the mainstream thinking at that time
should and could be overcome by capital import from abroad. Poverty reduction was seen
as following naturally from economic growth. In line with the — to date predominant —
trickle-down theory, the gains in economic growth made possible by these massive foreign
investments would initially benefit the overall national economies. Secondly, these benefits
are expected to “trickle down” automatically to the poorest in society. As a consequence
of this conception, financial resources at the time were primarily directed at individual
projects and purposes, above all at huge infrastructural projects. As a result, the World
Bank, for instance, became known for “funding economically questionable megaprojects
with devastating social and environmental costs” (Fox and Brown 1998, 1), very often
lacking maintenance funding and therefore turning out unsustainable in the long term
(Easterly 2007, 189). Hence, in the post-World War II period, state-society structures and
the powers of government and public authority were highly centralized in both developed
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and developing countries (Cheema and Rondinelli 2007, 3). In the 1950s and 1960s,
however, the urban problem − urban development and management − was not yet on the
development agenda. Since poverty was seen as basically a rural phenomenon and problem,
investment was mainly directed at rural areas (Ponte 2002).
Significant changes came about in the 1970s and 1980s. With World Bank president
Robert McNamara (1968-1981), an attempt was made to introduce a new development
strategy aiming at the improvement of income and the basic necessities of the poor: poverty
arrived for the first time at the top of the World Bank agenda. The concept was based on the
expectations that investment in the poor and in their economic opportunities would produce
economic growth beneficial for the whole economy (Führmann 2003, 7). Rist, for instance,
criticizes this approach as a mere continuation of the traditional, narrow economistic
development thinking: “even if ‘it is mainly due to morally oriented considerations that
development aid is justified’, the ultimate objective consists of enhancing the productivity
of the poorest in order to include them in the economic system” (Rist 2001, 266).
Nevertheless, with this poverty-oriented approach, the urban question gained
significant ground in the development debate. Poverty began being addressed as a menace
for general social well-being and the social order, as well as a productive potential to be
explored in favour of economic growth and development. Thus, for the World Bank, “poverty
constituted a twofold problem: economically it meant a reduction in the productivity of
the workforce that was affected by it, while from a strictly political point of view it was a
threat to the order of urban society” (Ponte 2002, 207). With the growing consciousness
regarding the importance of cities and local governments in the fight against poverty, a
first strong argument concerning decentralization was set out. This influenced the general
process of decentralization that took place from the 1970s onwards.
With the economic crisis caused by the rise in international oil prices, the deterioration
of the terms of trade for raw material and the demise of the Bretton Woods system, payment
deficits, high inflation rates and economic stagnation became increasingly critical in
developing countries (Führmann 2003, 7; Mestrum 2006, 63). Thus, poverty reduction was
eclipsed as the main objective of the World Bank agenda in favour of a stronger emphasis
on macroeconomic concerns and corresponding expectations with regard to the supposed
trickle-down effect of economic growth.
In a study edited by John Williamson, whose primary aim was to propose effective
reforms for Latin American nations, a ten-point plan3 was put forward. Later, it became
known as the “Washington Consensus”, as the principles contained in it were supported
by the World Bank, the IMF and the U.S. Treasury, all located in Washington. “Indeed, the
emergence of the so-called ‘Washington Consensus’ gave rise to the widespread adoption
of structural adjustment policies rooted in aid-conditionality under the aegis of the IMF
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and the World Bank” (Mackintosh et al. 2007, 2). Above all in the first implementation
phase of the Washington Consensus, economic growth and the withdrawal of the state
from the economic sphere became the central concerns of development policies and were
seen as preconditions for tackling poverty effectively: “The claim was that a smaller state
would be good for growth, and growth would be good for poverty reduction” (Toye and
Toye 2005, 7).
On the other hand, the shift from the state to market-led strategies in development
policy, “focused on strengthening the private sector, privatizing or liquidating state
enterprises, downsizing large central government bureaucracies” (Cheema and Rondinelli
2007, 3-4), made it at the same time necessary to rethink the role and functions of the
shrinking state and therefore the new conditions of governance and decentralization as well.
“The International Monetary Fund, the World Bank, and other international development
organizations prescribed decentralization as part of the structural adjustment needed to
restore markets, create or strengthen democracy, and promote good governance” (Cheema
and Rondinelli 2007, 4).
It is quite interesting to recognize that, starting from the concern about macroeconomic
reform, the strengthening of democracy and participation was incorporated into the overall
World Bank discourse basically as a concept able to give support for economic transformation.
Democracy and decentralization shall contribute to establishing an enabling environment
favourable to economic growth and development. This renewed discourse allowed the World
Bank, and the development community in general, to bring in line pro-growth concepts
of structural adjustment for a liberalized and interconnected world economic system with
the growing popular expectations in many parts of the developing world concerning more
local autonomy, decentralization and political emancipation. So the World Bank assumed
a leadership role in the overall valuation of participation by development agencies as a
means to ensure stakeholder involvement and shared control in development initiatives.
“This recognition and support for greater involvement of local people’s perspectives,
knowledge, priorities and skills presented an alternative to donor-driven and outsiderled development and was rapidly and widely adopted by individuals and organizations”
(Cooke and Kothari 2001a, 5). According to the critical view of Cornwall and Brock,
“fine-sounding buzzwords”, such as participation and empowerment, have become part of
a “seductive mix of buzzwords” constituting the new hegemonic development discourse,
the new “feel-good rhetoric” that shapes today’s practice of international development
agencies (Cornwall and Brock 2005, 1). The World Bank began to distance itself from the
traditional centralization concept in view of the negative experiences of corruption and
rent-seeking practiced by national and local elites. Henceforth, the “capturing” of state or
public resources in favour of private interests was interpreted as the primary hurdle on the
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road to growth and development. Given the overall background of structural adjustment
and a shrinking state, the strengthening of local governments and local communities, the
expansion of their self-help capacity, decentralization and local control now became a
necessity in the general development agenda (Cheema and Rondinelli 2007, 3-4).
The instrumentality and economic rationale of this decentralization approach become
evident regarding the urban development agenda, where “particular importance was attached
to improving the productivity of the poor, in order to combat poverty and encourage the
growth of investment” (Ponte 2002, 207). The abandonment of more large-scale and
standardized forms of service delivery was accompanied by project-based approaches
and smaller pilot interventions, to the detriment of the former practice of formulating
comprehensive urban plans and programmes (Werna 1995, 354).
From the 1990s onwards, a process concerned with the questioning of former strategies
of the minimal state was initiated, recognizing the increasing loss in steering capacity by
state agencies in the context of globalization. This renewed interest of the World Bank in
the supporting role of state agencies for development, received a variety of comments and
judgments. In comparison with the previous decade, it could be argued that the World Bank
had begun, under the growing pressure of social and grassroots movements, to recognize
its own failures in the past, committed itself to the notion of “sustainable development”,
adopted more rigorous environmental and social policies and advocated a more central
role for citizens and local stakeholders in development processes by means of participation
and good governance. From this point of view, it could be considered a new development
approach that brought in line politico-economical reform with measures of poverty reduction,
sustaining a kind of post-Washington Consensus (Führmann 2003).
For others, the new emphasis on poverty and good governance did not aim at the
removal of the basic principles of the Washington Consensus. “On the contrary, poverty
reduction policies seem to be the consensus topic that allows for continuation of neoliberal reforms” (Mestrum 2006, 63). From this point of view, combating poverty and
good governance do not really go beyond mere complementary or compensatory measures
considered indispensable to enforce the neo-liberal agenda. In line with this view, the new
managerial approach to public administration, the focus on local capacity building and
institutional strengthening of local governance, the concepts of partnership, social capital
and social networks, all of which gained ground in the current good governance debate,
could be interpreted as mere enforcement measures for the pro-growth agenda on behalf
of the dominant global economic forces.
It is important to clarify that the World Bank and most of the other development
agencies do not seriously take into account the more essential critics of development and
present-day capitalism. As an example, one might mention, amongst many, Immanuel
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Wallerstein, for whom historical capitalism is “a system in which the created institutions
allowed that capitalist values acquired priority to such an extent that the world-economy
took the way of all-embracing mercantilization yielding ceaseless capital accumulation as
an end in itself” (Wallerstein 2007, 90), or of the same tenor, Serge Latouche, who calls into
question the sustainability of our “growth society”, a society, according to him, dominated by
a “growth economy”, in which “growth for growth becomes the main if not the only aim in
life” (Latouche 2003). For Latouche, even the idea of sustainable development contradicts
the notion of sustainability itself. “This means prolonging the agony of the patient as long
as possible by entertaining the virus” (Latouche 1994, 93).
Even if there can be identified within development institutions like the World Bank a
growing awareness on the part of at least certain sectors and representatives demonstrating
concern with the ecological, social and even economic limits of current development models,
these issues are still treated as merely negative side-effects of a presumably virtuous growthoriented capitalism. Therefore, proposals like Latouche’s “de-growth” approach appear as
totally out of the question.
In order to provide a better notion of the World Bank’s concept of good governance
and to understand its relevance to urban politics and management, its main features and
the contested discussion surrounding it are presented below.
Good Governance – A New World Bank Approach to Development?
Governance as an analytical concept aiming at the understanding of changing internal
relationships between different state agencies, as well as of changing relational patterns
between public administration, government and civil society was initially developed to
describe and analyse a transformation that affected public affairs in the current context of
an increasingly interdependent world in local, national and, above all, international relations
(Kooiman 2000; Kjær 2004; Benz et al. 2007). By the addition of the adjective “good” to
the notion of governance, the approach has become strongly normative. Based on scientific
insights from Political Science, Institutional Economy and Development Management,
the World Bank concept of good governance has led to the equalization of governance
with “government”, reducing governance “to a commitment to efficient and accountable
government” (Stoker 1998, 18; Sindzingre 2004).
This state-centred conception of governance is based on the assumptions that
corruption and rent-seeking strategies by self-serving elites are hindering common-goodoriented economic and societal development. In addition, effective and strong state
agencies are considered functional and necessary to create a positive and reliable economic
environment and to provide adequate distributional conditions of wealth and benefits
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(Theobald 1999, 95). Without a doubt, this renewed interest in the state represents a
recurrence to the post-war period with its expectations concerning the state as primordial
agent of development, even though the former focus on development is replaced now by a
focus on management. The crucial role of the state as management agency becomes evident
in the World Bank’s own conception of governance as defined in 1992 as “the manner in
which power is exercised in the management of a country’s economic and social resources
for development” (World Bank 1992, 1).
In order to understand the current World Bank concept of good governance, it is
of fundamental importance to take into account the historical development of the ideas,
demonstrating how and in which context these have been generated and promoted. The
lack of precision and clarity and the ambiguity in the use of the term ‘good governance’
has to do with continuities in World Bank thinking, as well as with constraints that are
proper to the Bank as an extraterritorial institution whose board of governors is composed
in proportion to the contributions made by each country, which in the end determines the
structure of influence in the Bank’s decision-making process (World Bank 1992; Theobald
1999; Ponte 2002; Kjær 2004; Sindzingre 2004). Another restrictive aspect has to do with
the so-called Articles of Agreement that determine the World Bank’s guiding rules and bind
the institution to the principle of political neutrality (Theobald 1999, 98-102; Sindzingre
2004; Nanda 2006, 272). On the other hand, as the overall concept of good governance has
been formulated by several multilateral institutions including the United Nations Centre
for Housing, Building and Planning (UNCHBP), United Nations Educational, Scientific
and Cultural Organization (UNESCO), Food and Agriculture Organization (FAO) and
World Heath Organization (WHO), counting, however, on the World Bank as the leading
institution, it indeed reflects a political inter-institutional compromise (Ponte 2002).
The practice and necessity of political balancing of different, sometimes antagonistic
interests and conceptions has strongly influenced the advancement of poverty concerns
in the development agenda and, simultaneously, the emergence of the good governance
concept. In a 1989 Bank report on Sub-Saharan Africa, the absence of good governance
was identified as responsible for the lack of progress in development in spite of a significant
transfer of development aid to the benefit of these countries.4 The report highlighted demotivating effects on ordinary people of the top-down approach to implementation in
African countries that basically consisted of “copying, but not adapting, Western models”
(World Bank 1989, 3).5
The main focus of this report was on the governments’ capacities to formulate
and, above all, to implement financial and economic policy, putting in place an “enabling
environment that fosters private investment” (World Bank 1989, 15), although one already
finds several hints concerning the necessity of participation and of “investing in people”
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(World Bank 1989, 6) or “developing people” (World Bank 1989,189). The long-term
strategy proposed aims “to release the energies of ordinary people by enabling them to take
charge of their lives” (World Bank 1989, 4). The expectations expressed regarding people’s
empowerment stress neither its political dimension in the sense of creating counter-power
able to confront the dominant local elites, nor the establishment, from a more functional
perspective, of accountability measures in order to guarantee feedback to the citizens
(Easterly 2007). Rather, they stress assisting people and local communities to become more
autonomous and independent from state assistance. From this point of view, empowerment
is in line with — or is the necessary complement to — the neoliberal strategy of a shrinking
state. The final goal is the creation of favourable conditions for the free interplay of market
forces. For the role of the state this means “not just less government but better government
— government that concentrates its efforts less on direct interventions and more on enabling
others to be productive” (World Bank 1989, 5).
Even in an Organization for Economic Co-operation and Development (OECD)
Development Assistance Committee (DAC) document from 1995 (DAC 1995), titled
‘Participatory Development and Good Governance’, the concept of good governance was
still discussed “in terms of ‘efficient management’ capable of running the public sector
well, bringing corruption under control and ensuring reductions in military expenditure”
(Hoebink 2006, 133), revealing a technocratic perception of participation. Both combating
poverty and good governance entered the development agenda as strategies able and
necessary to sustain neoliberal reforms of structural adjustment, though not with the
objective of bringing about political and social emancipation.
This dual strategy of a neoliberal agenda accompanied by simultaneous strategies of
poverty reduction could be seen, as Sindzingre (2004) and Kjær (2004) point out, as an
attempt to balance the different interests and accountabilities with which the World Bank
as a multinational development and finance agency has to deal with. On the one hand,
in order to guarantee further capital injections from the US Treasury, the Bank has to
attend the US Government’s expectations concerning deregulation, open markets and the
liberalization of capital markets; on the other, in order to ensure legitimacy and a favourable
ambience of acceptance and cooperation, it has to take into account what Kjær calls the
“global interests”, that is, the interests and expectations of the global community of states
and the emerging global civil society. These actors used to defend a more careful protection
of some industries, some state regulation and even some regulation of the financial and
capital markets, but also the consideration of social and environmental issues.
The contradictions and conflicts, basically about growth orientation and administrative
efficiency on the one hand and poverty reduction and democratic strengthening on the
other, very often lead to the opposition of different groups of countries and even different
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views within the World Bank staff itself, as Kjær (2004, 178-182) and Sindzingre (2004,
171-172) illustrate with several examples. Hence, the fact that combating poverty has in
the last few decades gained a prime role in the World Bank’s development approach — and
taking into account that “the US does not have a strong interest in poverty reduction per
se in its development policies” — could in fact be understood as a sign of the World Bank’s
independence from the US government: “by putting poverty at the forefront, the Bank cannot
be criticized for reflecting slavishly the economic views of the US government, and it can
even claim to be independent of its influence” (Sindzingre 2004, 170). Kjær, however, is
much more sceptical about the real changes in the World Bank’s way of acting. “There is a
tendency, then, for Bank rhetoric to be more ideological and ‘global’, while Bank practice
tends to be more in line with neo-liberal ideas” (Kjær 2004, 183).
However, what is very important to state is that in spite of the alleged political
neutrality of the World Bank, its development discourse and concepts are highly contested
and disputed6 (World Bank 2000). It definitely lies in the nature of the issues at stake that
“the Bank does affect domestic political matters, whether it desires to or not” (Kjær 2004,
179). This contradiction appears very strongly in the concept of good governance: regardless
of the neutral definition of governance, it aims at influencing political and administrative
decision-making processes, the functioning of governmental action and the process of
policy-making, thus affecting existing power relations within nation states.
Good governance, according to the World Bank (1992), compounds four basic areas of
action: efficient public sector management, accountability of state and administrative action,
transparency and active information delivery and, at least, a trustworthy legal framework.
Whereas the World Bank always tried to present these principles as mere technical
mechanisms aimed at the improvement of the conditions for economic development, it is
clear that the implementation of such measures has strong implications for the political
power structure, as there are groups, even at the top of most governmental hierarchies,
who used to benefit from corruption, the lack of accountability and transparency, or
clientelistic structures. According to Nanda (2006, 276), it is exactly the history and culture
of each country that the World Bank does not take suitably into account, starting from
the assumption “that those responsible for change in the recipient state act with rational
choice” (Nanda 2006, 275). It is exactly these specific political and cultural conditions of
each country and their implications for the political process that generate resistance and
hamper the successful implementation of good governance reforms.
The political dimension of good governance also becomes apparent if one looks at the
different kinds of use made of the concept in development policy (Hoebink 2006): first, as a
criterion for initiating aid relations, for breaking-off aid relations or for changing the content
of aid relations; second, as an objective for strengthening state organizations, democratic
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practices or the involvement of ‘civil society’ organizations; and third, as an instrument to
promote economic development and to eradicate poverty. This means, on the one hand,
that good governance has become an additional criterion of conditionality for development
aid — in addition to the traditional financial-economic conditionality —, and, on the other,
that it has become a development goal and field of action of development aid itself.
The broadening of the concept occurred only in the following years, with the
strengthening and integration of human rights and democracy requirements within the
overall concept, as in the previously mentioned DAC document (DAC 1995), giving to it
a more political connotation (Theobald 1999, 96-97).
In the same context, the strengthening of democracy and participation entered the
good governance discourse and agenda above all due to the UN Millennium declaration,
where the essential relevance of good governance for development and poverty eradication
is highlighted. It reads: “Success in meeting these objectives [development and poverty
eradication] depends, inter alia, on good governance within each country” (UN 2000, 4).
In order to guarantee freedom as one of the main values mentioned by the Millennium
declaration, governance has to become democratic and participatory: “Men and women
have the right to live their lives and raise their children in dignity, free from hunger and
from the fear of violence, oppression for injustice. Democratic and participatory governance
based on the will of the people best assures these rights” (UN 2000, 2). A 2005 UN General
Assembly resolution that attempted to assess first outcomes of the Millennium Declaration
stressed still more emphatically the decisive role of good governance for sustainable
development: “We acknowledge that good governance and the rule of law at the national and
international levels are essential for sustained economic growth, sustainable development
and the eradication of poverty and hunger” (UN 2005, 2).
Whereas for Nanda (2006, 270) the lack of consensus on the criteria for measuring
good governance is responsible for the ambiguity and imprecision of the term and the
difficulty in its application in development policy, the main problem, according to Hoebink
(2006, 155), is rather how to deal with the different objectives, how to take into account the
different relationships between them and, lastly, what should be the concrete implications
for the application of these criteria in the implementation of development policy.
Therefore, Hoebink might be right with his recommendation that “extreme care
is needed with regard to using the concept good governance as a criterion for entering,
changing or breaking off aid relationships” (Hoebink 2006, 156), as there is no clear
empirical evidence concerning the relationship between good governance and economic
development or the effective use of development assistance (Nanda 2006; Goldsmith
2007).7 Considering in addition “the unresolvable contradiction between conditions and
sovereignty” (Easterly 2007, 146), political conditionality of development aid is certainly
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a delicate, poorly enforceable criterion, and one that is prone to political and ideological
arbitrariness.
Due to these difficulties, the main question might not be how to cope with good
governance requirements as conditions for development aid, but how to consider these
different dimensions of good governance as a field of action of development aid. Several
questions arise: how could and should development assistance give support to these
different dimensions of good governance? On which of these dimensions should emphasis
be placed first and foremost? Are these goals at odds with each other? If so, how can they
be made compatible?
The next two sections are concerned with the World Bank’s apparently ambivalent
strategy regarding good governance: firstly, its market-orientation and the extent to which
this is embedded in the overall neoliberal worldview as guiding principle; and, secondly,
its recent support for participation, social capital formation and the strengthening of
democracy.
Good Governance within the Neoliberal Concept of Development
and Public Management Reforms
According to the World Bank and, in its wake, the mainstream of development
thinking, the primordial importance of good governance derives from its contribution to
support effective market transaction. As a consequence, it will favour growth and poverty
reduction. Hence, in the view of the World Bank, good governance is central to the goal of
poverty reduction “through its powerful effects on overall economic growth” (World Bank
2002, 99).
Even though the Bank admits “that development [does not] automatically bring
good governance”, it justifies the focus on economic development with the argument that
“poverty, illiteracy, and weak institutions make the task of good development management
much more complicated and problematic” (World Bank 1992, 10).
In this context it is very important to note that World Bank thinking — in line with
its institutional mission — is determined, first and foremost, by an economic rationale,
regarding good governance as “an essential complement to sound economic policies” (World
Bank 1992, 1). It is supposed to “establish the rules that make markets work efficiently and
[…] correct market failure” (World Bank 1992, 1). In the end, even though recent World
Development Reports showed a broader comprehension of what development should be
(see below), the degree of subordination to economic and financial imperatives is striking,
defining as objectives of good governance “the formation of the rules and institutions which
provide a predictable and transparent framework for the conduct of public and private
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business and to promoting accountability for economic and financial performance” (World
Bank 1992, 3). In the 2002 World Development Report titled “Building Institutions for
Markets”, the market-fixed vision of good governance becomes particularly evident, as
good governance is basically identified with the ability of political institutions to support
markets. “The ability of the state to provide these institutions is therefore an important
determinant of how well individuals behave in markets and how well markets function”
(World Bank 2002, 99). But even in the 2004 World Development Report with a specific
chapter on the role of “citizens and politicians”, the justification in favour of participation
is its contribution to accountability and as a consequence to governmental performance
in service delivery (World Bank 2003, 78). This corroborates the critics who point out the
technocratic view of participation inherent to most development agencies’ thinking. “To
the aid agencies, participation is an apolitical technical process of consulting the poor”
(Easterly 2007, 144).
The World Bank seems to reassume the faith in the ‘healing strength’ of institutions
that in the past characterized development policy, mainly in the 1960s and 1970s, when
institutional strengthening was strongly defended by international development agencies
in order to enhance governability and efficiency of development administration in the
Third World (Goldsmith 1992). However, at that time the state was principally conceived
as a scientifically run interventionist state able to induce development and sustain
nation-building. The concept of development administration stood for modernization,
scientific management, central government planning and the provision of social welfare
(Dwivedei and Nef 2004, 156-157). Expectations concerning the responsibilities of public
administration changed fundamentally in the World Bank’s good governance concept.
Political institutions are now conceived of as basically providing a favourable environment
for the free development of markets. They are supposed to influence policy choices, prevent
the state and its public officials from being corrupt or acting in favour of particular interests,
influence the incentives of the state to raise revenues and, ultimately, to “support markets”
(World Bank 2002, 101).
Whereas in the 1960s and 1970s strategies of institutional development used to
support so-called bureaucratic authoritarianism, i.e., repressive “national security regimes”
(Dwivedei and Nef 2004, 157), “based on a coalition of the public bureaucracy and the
propertied sectors […] against the peasantry and an emerging urban proletariat” (O’Donnell
1979, 89), today these cleavages of conflict seem to vanish in the course of an ongoing
attempt to demonstrate the compatibility of market-friendly institutions with services for
the general interest.
In former times, institutionalization aimed at the strengthening of the state’s capacity
as an active agent of development, thus leading to “the inflation and compartmentalization
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of administration” (Slater 1989, 504). Nowadays, institutions are designed and developed
basically to constrain the bureaucratic apparatus and public officials, who in the past
presumably used their “power arbitrarily in the interest of the privileged few” (World Bank
2002, 99), acting now presumably for the benefit of the free play of market forces. These
forces, exempt from state patronage and intervention and driven by Adam Smith’s “invisible
hand”, are now expected to interact in an environment of free competition in favour of
economic growth and, as a consequence, to reduce poverty. The same privileged few, now
restrained and purified by “the types of institutions that limit the ability of the state to
provide policies that favour special interests over the general interests” (World Bank 2002,
101), will now cease to pursue their self-interests and begin “to support markets — by
increasing access to information, enhancing competition, and enforcing contracts” (World
Bank 2002, 99).
What both approaches have in common is a very limited, one might say naïve, view of
the political dimension of the institutionalization of power that such institutional redesign
evokes. Whereas in the 1960s and 1970s the strengthened state apparatus was used by the
state elite not only for modernization and boosting the economy, as was hoped for, but also
for repression and militarization (Dwivedei and Nef 2004, 157), it is extremely difficult to
imagine why and how these public officials or the politicians in parliament and government
should suddenly begin to conceive and implement institutions able to restrain their own
self-interests or the interests of their own electorate. For, as the Bank points out, good
governance demands measures that are directed against the expectations of the majority
of the people: “Good governance requires the power to carry out policies and to develop
institutions that may be unpopular among some − or even a majority − of the population”
(World Bank 2002, 99).
This sentence is not only striking in terms of the justification it provides for the rigorous
measures of the structural adjustment strategies espoused and their expected severe social
implications, but it is particularly revealing as it asserts, firstly, that good governance is
required as a prerequisite in order to create favourable conditions − policies and institutions
− for good governance and, secondly, that it tends to be incompatible with basic democratic
principles, as for instance the principle of majority rule. The World Bank ignores the existing
hierarchical power relations that prevail in most of these countries when the issue is about
strategies designed to achieve conditions of good governance. When “the appropriation of
the machinery of government by the elite to serve their own interests is at the root of this
crisis of governance” (World Bank 1989, 192), the World Bank fails to address the question
of who will be the agents of this transformation in countries characterized by conditions
presumably of “bad or weak governance” and how these will come into office. Although
the Bank recognizes in its Report on Sub-Saharan Africa the need for political renewal as a
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condition for better governance and demands “a concerted attack on corruption from the
highest to the lowest level” (World Bank 1989, 6), the Bank fails to present an adequate
strategy as to how and by whom this concerted attack should be carried through. Due
to the strength of prevailing formal and informal rules and institutions, Easterley, for
instance, questions western top-down dreams concerning comprehensive institutional
reforms in favour of markets: “So the West cannot design a comprehensive reform for a
poor country that creates benevolent laws and good institutions to make markets work”
(Easterly 2007, 100).
If the privileged few, arbitrarily using their extensive power on behalf of their own
self-interests, as the Bank itself states (World Bank 2002, 99), are used to pursuing their
self-interest under given conditions of bad governance, and if the adjustment strategies
suggested by the Bank apparently have to be directed against the people’s will, it is not
reasonable to imagine support neither from within the politico-administrative system nor
from society or the electorate.
Hence, the World Bank disregards the existing power structures and underestimates
the necessity to think about strategies and ways to overcome these impeding power
conditions. This fact becomes particularly doubtful in view of the World Bank’s expectations
of a limited but powerful state where precisely these public officials that formerly used
to act in favour of their self-interests should now be endowed with “the power to tax
individuals and companies to raise public revenues”, “the power to enforce regulations
against monopolistic abuses, the power to see the state’s policies implemented” and with
“the ability to try, judge, and punish those who do not respect those [property] rights”
(World Bank 2002, 99).
At this moment I will not resume the question discussed above concerning the
doubtfulness of the absolute devotion to market solutions of the Bank’s development
proposals, in reality ignoring the specific economic context and conditions for the
implementation of neoliberal reforms in the different countries of the South (see above). The
focus is rather on the political conditions and strategies for governance reforms. Whereas the
World Bank starts from the assumption that there already exists − or should be created − a
political consensus around the idea of the liberal market model of development, where the
role of the state is basically limited to some market supporting regulations, the Bank ignores
the political implications of the proposal itself and the necessary political conditions for
the implementation of whatever kinds of institutional reforms being pursued in a context
where the prescribed good governance conditions are not (or not yet) given.
The expectations concerning the possibility of consensus-building by supportive
institutions which are at the basis of the World Bank’s development and good governance
approach might be condemned to failure in the context of highly heterogeneous societies
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characterized by extensive plurality of interests and clear lines of conflict. The approach
presupposes what it is supposed to provide. “Thus moving from words to action requires a
favorable institutional context. It must emerge from, and at the same time support, political
consensus” (World Bank 1989, 193). A view that ignores the strength of hegemonic power
structures becomes evident. This is unlikely to be overcome by dialogue alone, as proposed
by the Bank. The different affirmations that “fortunately disagreements in practice are few”,
that there is a “broad consensus on objectives”, seen as “the starting point for working
together”, and finally the warning that “there is no place for fundamentalism” (World Bank
1989, 185), all seem much more expressions of wishful thinking or of an alignment between
the interests of the development community and the national elites in developing states
than the result of a realistic assessment of local power conditions.
In order to achieve this necessary global consensus in developing countries, the World
Bank increasingly began to stress the need for democratic participation and the deepening
of democracy as essential parts of good governance. The next section tries to present and
discuss critically this kind of participative approach and how it fits into the overall good
governance concept.
Good Governance, Politics and Democratic Participation
The starting point for my reflection upon participation and democracy is how the
World Bank and the mainstream of the development community conceive of the relationship
between the state/the public administration, the market/private enterprises and civil society/
the citizenry, in order to gain a better understanding of their concept of democracy and
politics and its appropriateness for local development processes.
Whereas the World Bank in the 1997 World Development Report still defended the
notion that “in the technical and often sensitive area of economic management, for example,
some insulation of decision-making from the pressure of political lobbies is desirable”
(World Bank 1997, 116-117), the Bank increasingly began to recognize the crucial role
of political lobbies, including popular pressure, in at least − let’s say − “less sensitive
areas” such as public health, education and the environment, as it ensures accountability
and more inclusiveness in “processes by which broad policy direction and standards are
set” (World Bank 1997, 117). In these areas there are strong expectations with respect
to decentralization, as it allows the dissemination of the supposedly healthy principle of
competition “between jurisdictions to provide improved public goods” (World Bank 2002,
100), contributing to more dynamic societies. “The expansion of political authority enables
states to create a competitive arena for the distribution of state resources and access to
education, employment, land, and credit” (World Bank 1997, 113).
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It is noteworthy that, consequently, the World Bank does not consider economic
policies a broad policy issue but, rather, a technical task that should be delegated to the
professional governmental staff and, as a matter of fact, excluded from democratic control.8
In this formulation, it becomes quite clear that democracy is not envisaged as an intrinsic
good, but rather as an instrumental concept in order to ensure effective implementation
of the neoliberal pro-growth agenda.9 In this section, I present a critical view of the World
Bank’s good governance concept, related firstly to the concept of participation, and secondly
to democracy.
Participation
The World Bank’s strategic advice in terms of participation can be regarded as being
based on the ideas and mechanisms of exit and voice, finding support through measures of
decentralization (Theobald 1999, 107-113). The concepts of exit and voice, originally formulated
by Hirschman (1970), are based, respectively, on economic and political reasoning.
With regard to the local level, exit-strategies, in the traditional sense, i.e., leaving the
organization (Hirschman 1970, 4), or in our case, leaving the municipality or city and moving
to other cities with better performance indicators, is an option very restrictively available
to citizens or private firms; or when this happens, migration tends to be a consequence
of a broader array of causes and motivations, many of them beyond the influence of local
governments. However, the exit strategy has been firmly defended as a governmental
adjustment policy to improve public service provision.
Deregulation, contracting-out of services, public-private-partnership and the
promotion of competition are seen by the World Bank (1992, 24), and generally by the New
Public Management movement (Osborne and Gaebler 1992; Pierre 1999; Stoker 2005),
as part of administrative modernization policies and as alternative and effective forms of
service delivery in order to attend people’s needs and demands that cannot be attended
adequately by the public sector. Creating conditions of economic competition is supposed to
enhance people’s “participation” by means of exit strategies, or in other words, to empower
customers (Pierre 1999, 378).
The exit option for delivering public goods is very often defended by orthodox
economists like Milton Friedman,10 for whom the best way parents can manifest their views
about bad performing schools is “withdrawing their children from one school and sending
them to another”. In his eyes, the exit strategy is the most direct way of expressing one’s
unfavourable views of an organization or service. In contrast, expressing one’s view by voice
through “cumbrous political channels” is therefore only an additional dubious possibility
in the case of market failure.
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The problem with this proposal is firstly that it is at odds with the organizational and
professional culture of public administration, creating uncertainty and making the planning
of education spending questionable (Pierre 1999, 379). Secondly, privatized services or
additional market options very often represent an alternative only for people on higher
incomes and therefore the market will not necessarily deliver adequate services to all
citizens and for every of public service. Therefore, the increasing privatization of formerly
public services has in many developing countries led to a dual system of services, with the
public system usually in a state of accelerating decay. This is why within the political realm
“exit has often been branded as criminal, for it has been labelled desertion, defection, and
treason” (Hirschman 1970, 17).
Despite the preference given to exit responses, voice, as the expression of “dissatisfaction
directly to management or to some other authority” (Hirschman 1970, 4), has become an
additional relevant tool within good governance oriented management. In its 1992 governance
booklet, the World Bank highlights the dissemination of information as a measure able to
facilitate civic involvement, some institutional mechanisms such as “ombudsmen” or “hotlines”,
as well as consultation processes and public hearings (World Bank 1992, 24-25). In the 2004
World Development Report, the importance of participation is highlighted in a specific chapter
on “Citizens and Politicians”, where voice is defined as “the relationship of accountability
between citizens and politicians, the range of measures through which citizens express their
preferences and influence politicians” (World Bank 2003, 79).
Thus, participation is seen first and foremost as a means for citizens to express, in an
economic perspective, their preferences basically as “clients” of a service-delivering public
administration and, in a political perspective, to “influence” politicians. Participation in
this spirit is not understood as directly taking part in political decisions but as a form
of consultation and informational feedback aimed at binding political decision-makers
more effectively to people’s will, augmenting public accountability and, as a consequence,
administrative responsiveness.
The World Bank refers to its own approach as relying “heavily on financial tools to
ensure efficiency” and advocates “a more comprehensive strategy, with greater attention to
mechanisms, such as hearings or surveys, which allow local preferences to be ascertained”
(World Bank 1992). Indeed, there is still not any hint concerning the necessity of a proactive
role of citizens and civil society organizations in development and decision-making processes
as part of good governance practice, whereas the Bank expresses worries about possible
costs that participation could bring: “the costs and benefits of various ways of providing
voice need to be evaluated case by case” (World Bank 1992, 24).
The main objective of the World Bank is, thus, the increase in governmental and
administrative efficiency and critical for good governance are mechanisms that enable
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citizens and civil society to react to state action and state failures. The Bank’s concern with
participation is therefore not the creation of institutions allowing for active involvement, for
citizens and civil society to influence strongly the political agenda or play an effectively part in
decision-making processes; rather, the concept is committed to the provision of conditions of
transparency and accountability in the realm of the state. This, as a consequence, is supposed
to facilitate non-governmental organizations (NGOs), citizens or private enterprises to
accompany the everyday business of public agencies, to keep an eye on their work, to give
suggestions and to alert the public when problems might occur.
The limited World Bank view, equating good governance with “sound development
management” (World Bank 1992, 1), does not take into account that managing only comes
into play when the political objectives are already defined (Theobald 1999, 280-281).
Yet, governance is first and foremost about politics, about the confrontation of different,
sometimes antagonistic, interests and views; it is about building alliances to arrive at
common proposals and solutions; lastly, it is about mediation and negotiating what requires
both internal restructuring within the public sector, in order to allow for inter-sectoral
integration and conflict-resolution, and restructuring of external relations in the sense of
expanding cooperative and contentious forms of interaction, establishing new arrangements
capable of integrating all stakeholders into decision-making and conflict-solving processes
and, to a certain extent, in the implementation of collectively defined ends. As Nanda (2006,
274) puts it, the World Bank “did not explicitly question how legitimate the government
and its power structures are, what the decision-making process is, how public policy is
formulated and implemented, or how equitable the economic system is”.
Taking into consideration Arnstein’s Ladder of Citizen Participation (Arnstein
1969), that is, from a perspective of political power, one could say that the World Bank
is not concerned with the transfer of power to citizens, as in the case of citizen control,
delegated power or partnership, which are Arnstein’s categories for characterizing powertransferring modes of participation. The Bank’s concept of participation corresponds,
rather, to a kind of tokenism, in the sense of placation, consultation and informing,
avoiding a real realignment of power relations. Arnstein has already called attention to
the use of “innocuous euphemisms like ‘self-help’ or ‘citizen involvement’” (Arnstein
1969, 216), all terms highly valued in the current development discourse, that deliberately
ignore the ultimate essence of participation, that is, the redistribution of power in favour
of the powerless. Arnstein’s contribution is fundamental, as she underlines the exigency of
distinguishing between different gradations of participation of those currently powerless,
according to what extent “targeted institutions [are made] responsive to their views,
aspirations, and needs” (Arnstein 1969, 217). So, starting from the conception of a
“fundamental division” existing between the powerless and the powerful, she proposes
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her ladder of participation as an analytical tool to assess concepts and concrete experiences
of participation.
If one looks at the World Bank’s view of participation, one can see that the main
concern is with the improvement of the conditions of information and the extension of
consultation processes in order to create conditions of accountability. Though this may
allow citizens to hear and be heard, the bottom line is that “they lack the power to ensure
that their views will be heeded by the powerful” (Arnstein 1969, 217).
In developing countries characterized by inequality and patrimonialist political
structures, the introduction of new forms of participation, as Maricato (2007) points out
for the case of Brazil, very often lead to practices of cooptation or the annulment of others
in conflicts where the dominated classes are involved. Hence, a crucial question is to what
extent new participation channels will in fact benefit the poor or powerless, as Arnstein’s
empowering and political participation concept demands. The tendency to neglect the
power-political dimension and to interpret the shortcomings of participatory development
as a mere “matter of how the practitioner operates or the specificities of the techniques
and tools employed” (Cooke and Kothari 2001a, 4) — a very common perception within
development agencies — used to be the starting point of the critiques of the participation
approach in development policy, as for instance expressed in the book Participation: the new
tyranny, edited by Cooke and Kothari (2001b). The focus on empowerment and individual
involvement, taking the local and the community as primordial spaces of participation,
as well as the fixation on consensus-building, are expected to favour de-politicization, to
reinforce existing privileges and exclusive group identities. The over-emphasis on abstract
formulas and techniques might determine the outcomes of participation processes, as
the dynamics of such processes are shaped by these rules, leading to the intimidation of
potential participants, and the exclusion of opinions and interests of minorities (Bühler
2002, 2-3). Even if the overall discourse in development policy is increasingly interspersed
with buzzwords like empowerment and participation (Cornwall and Brock 2005), the
apolitical and technical perception of participation as mere consultation of the poor hinders,
according to Easterly (2007,144-145), power-political transformation. Or, as Cooke and
Kothari put it, it might be even exactly this “discourse [of participative development]
itself, and not just the practice, [that] embodies the potential for an unjustified exercise
of power” (Cooke and Kothari 2001a, 4). The alleged “inherent contradiction between
planning […] and democratic politics”, as well as the “high modernist convictions” (Easterly
2007, 145) of the dominant technocratic planners, which generally ignore local cultural
and socio-political particularities, potentially give rise to “participation as tyranny”. Thus,
“acts and processes of participation”, according to Cooke and Kothari’s warning, “can both
conceal and reinforce oppressions and injustices in their various manifestations” (2001a,
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13). Therefore, participation indeed could not be seen as a panacea for people-responsive
development without taking into account the power-political dilemma of such processes
in the overall democratic context.
Democracy
The Bank’s reluctance with respect to the delegation of power and the idea of citizen
control has very much to do with a participation concept guided by the principle of economic
efficiency and — in line with Joseph Schumpeter’s and Anthony Downs’s competitive or
economic theory of democracy — with a very sceptical view of people’s political competence
and motivations concerning political participation in decision-making processes: “To expect
poor people to carry the primary burden of exerting influence would be unfair — and
unrealistic” (World Bank 2003, 79).
Here it is again quite remarkable that based on this sceptical estimation concerning
political competence and willingness of the poor, what is in fact proposed and justified is
to restrict democratic participation to, basically, information and consultation. The Bank
envisages the possibility of routine interaction between poor people and the state exclusively
“at the delivery point of services” (World Bank 2003, 78), excluding participation in decisionmaking processes that involve local power. The voice approach only promises success in the
case of services designed for all citizens in the city, “as the voice of all citizens (or even that
of the non-poor alone) can put pressure on politicians to improve services for all citizens,
including the poor” (World Bank 2003, 79). In contrast, the World Bank shows itself much
more sceptical in the case of voice mechanisms for the poor, as “elites can be indifferent
about the plight of poor people” (World Bank 2003, 79). So taking the prevailing elitist
system as a matter of fact and within the framework of the economic understanding of
democracy, the Bank comes to the conclusion that “in failed or captured states voice can
become meaningless” (World Bank 2003, 80). Here again, the reason is not the unequal
power distribution — the power structure is assumed as given — but that “politicians have
neither the incentives nor the capacity to listen” (World Bank 2003, 80).
Hence, what has to be changed according to the World Bank (World Bank 2003,
81) is the overall service delivery environment, in order to alter political incentives to
improve outcomes, and reduce possibilities of clientelism-based government failures.
Institutionalization should influence political incentives for service delivery, but not
the existing unbalanced power structure. Even when the Bank stresses the concept of
“empowerment” it has not in mind “political empowerment”, understood by Friedmann
(1998, 33) as “to make its [society’s] multiple voices heard and respected through active
participation”. In fact, according to the idea of the “empowerment of consumers” (Pierre
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1999, 378), what counts in the end is the result in terms of service improvement: “When
poor citizens are empowered, whether on their own or in alliance with others, their demand
for accountability can make politicians respond in ways that compensate for weaknesses
elsewhere in the service delivery chain” (World Bank 2003, 78).
The World Bank’s notion of participation is hence embedded in the overall political
concept of competitive or economic democracy that also shapes its ideas on good governance.
Political institutions should primarily contribute to extend “competition in the political
process [as] this competition holds politicians accountable for their actions” (World Bank
2002, 100). Thus, the focus is not on the importance of dialogue, mutual understanding,
or even the necessity of politicization of decision-making processes, as advocated by the
republican or deliberative theory of democracy (Habermas 1998). In order to demonstrate
the importance of competition within the political realm, the Bank does not even shrink
away from reverting to a study that “suggests that an increase in the competitiveness of
elections seems to have a bigger effect on primary school enrolment than increases in
education spending” (World Bank 2003, 81).11 On the other hand, the World Bank complains
about the influence of ideological identities and social polarization upon voting behaviour:
“Social polarization can lead to voting based on social, ethnic, or religious identity rather
than policy or service delivery performance. This too limits political incentives to pursue
public policies in the general public interest” ( World Bank 2003, 82-83).
This view of political competition reveals an “apolitical” and contradictory conception
of democracy. Whereas in the Schumpeterian theory of economic and competitive democracy
— in analogy with market practices in the economic sphere — conflict, propaganda and
political marketing are explicitly recognized and appreciated as part of “the free competition
between the aspirants for leadership for the votes of the electorate” (Schumpeter 1950,
452), the World Bank tries to reconcile the competitive model of democracy, maintaining in
principle Schumpeter’s elitist view concerning people’s incompetence and disqualification
for deeper democratic practice, with the currently dominant rationalism that characterizes
liberal political discourse, or, in other words, with “the belief in the possibility of a
universal rational consensus” (Mouffe 2007, 9). The expectation is that the poor, or their
intermediaries, will be able and willing, in the context of conditions of accountability and
based on better information, to take rational decisions in decision-making processes for
their own benefit and/or the benefit of society, whereas the notion of benefit is reduced to
the criterion of good performance in service delivery.
One main contradiction of this concept lies in the fact that, on the one hand, the
Bank considers it unrealistic that the poor could play a more important role in the political
decision-making process, intending to restrict routine participation of the poor to “the
delivery point of services”. On the other, it is expected that these poor people should
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undertake rational assessments of administrative performance in order to back up their
electoral decisions about by whom they should be governed. Whereas Schumpeter (1950,
416) asserted that the “human nature in politics” manifests itself in the fact that man
becomes “primitive” again and his thinking “associative and affect-based”, and Downs
(1957) recognizes the importance of ideologies as facilitating the decision-making process
for voters in the context of limited information, the World Bank believes in the possibility
that ideology, politicization and emotionalization could and should be repelled by improved
conditions of accountability in electoral processes, turning government performance into
the only yardstick for voting behaviour.
My critique regarding this perception is not related to the necessity of creating better
conditions of accountability and transparency. The problem is, first, how to attain such
conditions under the given political distribution of power and influence where the privileged
elites take advantage of the status quo. If accountability, as the Bank assumes, really ensured
political conditions in favour of the poor, it is very unlikely that those in power would be
willing or become the driving forces to change the current situation in this sense, unless
they feared losing their privileged position if no such changes occurred. If one agrees
with this kind of reasoning, it becomes clear that no substantial changes will occur until
enough political pressure from below is deployed, or eventually, at least to a certain extent,
by means of foreign agencies. It is indispensable that new political alliances emerge and
social and political mobilization takes place so that either the elite in power feels impelled
to extend access to the political arena or introduces measures of accountability with the
intent of maintaining the overall control of the political process. However, such initiatives
would barely go beyond measures of placation. A second option would be that emerging
political protest and mobilization lead to a situation in which opposition political forces
come into power, sustained by grassroots sectors and committed to democratization and
the enhancement of people’s power in politics.
Thus, this perspective is apparently at odds with the World Bank’s conception of
good governance, first of all, because the Bank is strongly concerned with keeping under
control the slightest form of emerging politicization and social mobilization. As a result, it
contributes to sustain the existing political order. Second, it fears that these new political
forces, sustained by grassroots sectors, could question the overall economic principles
that sustain the Washington Consensus and, beyond this, the neoliberal hegemonic and —
presumably — consensual world order. For Easterly, as a result, “the IMF and the World
Bank don’t show a ton of respect for democracy, when it starts to take hold” (Easterly
2007, 145).
My understanding is that the World Bank, and in its wake a good portion of the
development community, looking only at the general political conditions, is failing to
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recognize the central relevance of politics for political change, and even for effective
institutional change. First of all, this disregards that politicization and mobilization are a
precondition for effective political change, that political contest, the collision of different
opinions, views and interests is essential for the strengthening of democratic practice, and
not the unilateral imposition of a bogus consensus. It is identities, values and emotions that
sustain democracy and ensure citizens’ involvement (as they used to sustain authoritarian
rule in the past) and not a presumably − yet unrealistic − pure evaluation of governance
performance indicators.
Secondly, it fails to realize that enhanced political reasoning and reflexive elective
behaviour demands more opportunities of participation and possibilities for people learning
to express their views and demands and, by the same token, learning to understand and
respect the views and demands of others. The Bank fails to acknowledge that democracy
and participation are not only about governance performance, but rather about conflicts
of interests and the distribution of power. This is why any strategy of development has to
take into account this power-political dimension not only with respect to cause analysis,
but also when reasoning about possible political and democratic strategies able to create
favourable conditions for development, social justice and sustainability.
Final Considerations
Given that the World Bank’s good governance concept is subordinated to the free
market philosophy and envisages national governments as principal addressees, its relevance
for the practice of urban governance seems at a first glance to be limited, although the
discourse of the development community and of national governments on good governance
definitely has an important effect on the administrative and political practice of local
governments, as it shapes the overall “governance culture” of the country (González and
Healey 2005). Indeed, accountability, transparency, new public management, private-public
partnerships, contracting out or full privatization of public services, deregulation, social
capital, empowerment − all related ideas and concepts to the overall good governance
approach − found their way into national and local debates on governance and public reform,
involving also local authorities, research and academic institutions and even influenced
increasingly citizens’ normal course of life as political agents, users of local services or
providers of public services.
The above analysis of the World Bank’s view of good governance arrives at the conclusion
that its main focus, limited to economic and administrative efficiency, considering it basically
a complementary tool to sustain structural adjustment strategies, as well as its instrumental
conception of restricted participation and weak democracy, makes the proposal ultimately
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a concept of administrative and governmental strengthening to the detriment of a possible
democratic renewal capable of challenging existing power relations. Hence, the consequence
is the strengthening rather than the overcoming of existing power-political conditions.
It is by all accounts remarkable that the current global discourse on good governance,
democracy and poverty reduction, which definitely represents an advance if compared with
the early Structural Adjustment Programs (SAPs) with their exclusive emphasis on efficiency
and economic growth (Nanda 2006, 272; Easterly 2007, 144), has provoked in the last
decade a break-up of the apparent consensus on the exclusively growth-oriented neoliberal
approach. This progress in the development discourse has to be seen as a consequence of the
failures of traditional structural adjustment strategies resulting in increases in inequalities
in most parts of the world. This controversy has even arrived at traditional international
organizations like the World Bank itself. In the 2006 World Development Report on
Equity and Development one reads that “promoting equity through public action requires
changes in the existing configurations of power and influence” (World Bank 2005, 70). In
contrast to most previous publications, the Bank addresses in this report the fundamental
question of power and democracy, considering a power shift in favour of the traditionally
marginalized groups as a precondition for more equity-enhancing reforms. This corroborates
Kjær’s (2004) remark concerning the different influences to which the World Bank as a
multilateral development institution is exposed and the different views that exist within
the World Bank staff.
Hence, what the Bank still ignores and does not address is how it could come to
profound institutional changes able to affect national or local power structures effectively.
The World Bank and the mainstream of the development community seem convinced of
the possibility of significant changes that could be implemented by consensual institutional
rearrangements introduced from above.
An example of this contradictory vision can also be found in United Nations
Development Programme (UNDP) Senior Advisor Naresh Singh’s (2007) conception
of decentralization and legal empowerment. On the one hand, he presents a very clear
perception of the poverty enforcing effects of existing power relations: “Unintended
outcomes arise from skewed power relations between the poor and local elites that allow
the latter to capture control over local provision of goods and services” (Singh 2007, 231).
But on the other, in order to overcome this power dilemma, he arrives at a remarkable
solution: “To achieve this change in power relations, power must be re-conceptualized as
a positive-sum game based on mechanisms that help the poor empower themselves and at
the same time create benefits for ‘the establishment’” (Singh 2007, 231-232).
Here one has a very emblematic and common feature of mainstream thinking and
aspirations of the good governance movement: the unrestrained guarantee and continuance
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of the privileges of the establishment as the starting point and precondition for any reform
favouring the poor, as “someone does not have to lose in order for someone else to gain”
(Singh 2007, 232); and, in addition, the implementation of enabling strategies to support
“a process of self-empowerment” (Singh 2007, 231).
The paper by Singh is very illustrative, as its basic assumptions represent the World
Bank position with its concepts on empowerment, participation and social capital, which
at in end aims at strengthening self-help capacities in a context of a shrinking state and
transferring responsibilities to the poor themselves, i.e., what Cooke and Kothari (2001a,
2) denominated as “handing over the stick“ rhetoric: “organizations for the poor need
to be led by the poor themselves” (Singh 2007, 233).12 Or, according to the World Bank:
“The ultimate goal is to empower individuals and communities to take charge of their own
development” (World Bank 1989, 188-189).
I am not concerned with contesting the possible contribution of “self-empowered”
communities for the improvement of livelihoods. However, the proposed shift “in
development assistance from the focus on needs to a focus on assets” (Singh 2007, 235),
implies risks that in view of this enthusiasm regarding the self-help potential of the poor,
make the rich and powerful feel discharged from their social responsibilities and the focus
of development aid falls increasingly on helping the already better-off, whilst forgetting
about the poorest and less-empowered, that is, those with more needs than assets.
The good governance approach and its equivalents in the development debate,
according to my understanding, fails to acknowledge the political nature of local conflicts
and the interests and power relations involved which have to be contemplated in thinking
about strategies for change. The attempt to apply mere consensus-oriented conceptions
of democracy and development and to dissolve existing antagonisms, above all in the
context of unequal societies, comes necessarily together with social and political exclusion
but definitely does not contribute to a reconciled society. Chantal Mouffe in her recent
essay “On the Political” calls our attention to notions fashionable nowadays such as good
governance “which are invariably components of an apolitical vision that refuses to recognize
the antagonistic dimension constitutive for the ‘political’” (Mouffe 2007, 8).
The negation of the genuine political by the consensus-oriented approach, “instead
of creating conditions for a reconciled society, entails the emergence of antagonisms that
could be avoided by offering a legitimate form of expression to these conflicts” (Mouffe
2007, 10). In the context of fragmented and unequal societies, consensus-based politics
tend to bring about exclusion and frustration. The resulting disenchantment with politics
hinders civic mobilization and engagement in favour of collective ends. Therefore, Mouffe
suggests a kind of agonistic politics where collective identities are valued and recognized as
essential elements of politics. In the context of the developing world, seeking to eliminate
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enmity in the political process results essentially in excluding the socially and politically
marginalized from politics.
Hence, democratic urban governance has to seek, according to my perception,
institutional arrangements, of a formal as well as an informal nature, which on less conflictive
issues allow for negotiation-based compromises, but which in the case of incompatible
conflicts allow for decisions according to previously accepted procedural rules, and
without masking existing enmities and controversial disputes. Within an agonistic model of
democracy, as proposed by Mouffe, the political process is constituted by the open emotional
confrontation of groups with specific identities, ideas and interests, and this determines
the possibility of “conflictuous consensuses” (Mouffe 2007, 69).
For local governance this means that there is an ongoing political struggle for power
between different societal perspectives — in Mouffe’s conception, between different power
hegemonies — and that it is the maintenance of consciousness concerning this essential
political dimension of conflict that keeps democracy vital and combative. This, in fact,
means that based on such an agonistic conception of democracy, strong opposition forces
able and willing to challenge the existing hegemonic project are crucial for the survival of
democracy.
Therefore, the good governance approach applied in a context of weak civil society
and of weak or repressed opposition movements without any counter-hegemonic project in
sight will necessarily favour the strengthening and perpetuation of the prevailing hegemony,
even if due to external political pressure some limited improvements in the social situation
could eventually be attained.
Whereas the liberal perspective of the World Bank starts off from the assumption of
a neutral state, within Mouffe’s agonistic view the state is an object of political dispute
for hegemony: “We believe that the radicalization of democracy requires the alteration of
the existing power structures and the creation of a new hegemony” (Mouffe 2007, 71).
This is why good governance-oriented development assistance that aims at profound
social and economic changes which take those in power as their principal interlocutors or
“partners” are doomed to fail, as are approaches that attempt simply to bypass the existing
power structure, imagining that significant changes can be attained by trying to empower
communities and families thus enabling them to take care of their own.
My understanding is that the question of development assistance is not whether to
opt either for “a self-empowering model of development cooperation in which the poor
seek to take power over their own destinies [or] a model of cooperation essentially between
donor and recipient governments” (Singh 2007, 235). Rather, it is a matter of thinking
about how to influence polity and political conditions in a way that does not undermine
the agonistic perspective.
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With respect to the Articles of Agreement, the World Bank and the international
community have to become aware that development assistance is an inherently political
undertaking. The assumed principle of political neutrality implies, in essence, contributing
to the hardening of existing power relations, i.e., strengthening those in power. Within the
development community there is a rethink under way regarding the recognition of NGOs,
civil society and citizens as fundamental development agents. However, the focus is still
invariably on their constructive and instrumental role in the implementation of development
projects, whereas the Bank assumes a very reserved and reluctant position when the issue
is political protest and social mobilization. From my point of view, much more attention has
to be paid within the good governance approach to the question of how the political role
of these movements could be invigorated. In order that this might happen, a fundamental
shift has to occur concerning the appreciation of the political dimension of development
and good governance; above all, there has to be recognition of the limitations of mere
consensual approaches. Fundamental change can only happen as a result of emotional and
politicized movements able to challenge the existing power structure.
Submitted in April, 2008.
Accepted in December, 2008.
The author thanks CAPES (Brazilian Federal Agency for the Support and Evaluation of
Graduate Education ) for the financial support provided for a one-year post-doc at the Institute
of Urban and Regional Planning (Technological University of Berlin) in 2007. He also thanks
Prof. Dr. Adrian Atkinson from TU Berlin and the anonymous for their comments to the original
manuscript.
Notes
1
This is indicated to highlight that in this article we are not so much concerned with the discussion
regarding the legitimacy and effectiveness or not of these emerging global public spheres and
their relation and capacity to influence transnational public powers. (On this, see the special
section on Transnational Public Sphere, in Theory, Culture & Society, v. 24, n. 7, specifically
the article by Nancy Fraser.) However, we start from Castells’s notion of the public sphere as
a space of communication of ideas and projects that emerge from society and, supported by
global communication networks, increasingly influence decision makers and public opinion on
different societal levels. Such tendencies have been observed for the European Union, in this case
strengthened by the consolidation of a strong institutional structure at European level (Koopmans
2004), but also within less formal institutional settings as in the case of highly relevant issues
of public diplomacy, such as war, peace and international security (Dryzek 2006) or the global
environment (Torgerson 1999). Therefore, we start from the assumption that also in the field
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of international development, particularly with regard to structural adjustment programs and
“good governance”, the emergence of a transnational or global public sphere has turned out to
be crucial for the dissemination of these concepts within the development community and the
countries of the developing world.
2
This practice of demanding from developing countries more far-reaching political reforms than
those being implemented in developed countries has been very common, as for instance in
a 1951 UN document concerning “Measures for the economic development of economically
underdeveloped areas”; see Moraes (2006). In view of the also very ambitious Good Governance
Agenda and limited resources and particular difficulties in developing countries, Grindle for
example advocates a “good enough governance” approach as a more realistic concept for
developing countries (Grindle 2004).
3
The ten measures proposed were the following: budgetary discipline; reorganization of public
expenses; tax reforms; financial liberalization; export-led growth and competitive rates of
exchange; trade liberalization; attraction of foreign direct investments; privatization of stateowned enterprises; deregulation of economic sectors and labour markets; protection of property
rights.
4
Concerning the failures of conventional aid policy to end poverty, see also Easterly, who claims
that “sixty years of countless reform schemes to aid agencies and dozens of different plans, and
$2.3 trillion later, the aid industry is still failing to reach the beautiful goal” (Easterly 2007, 11).
5
It is noteworthy that in spite of the recognition that simply copying models from developed
countries cannot work out very well, these continue being considered the models to follow, even
if some adaptation to local conditions is recommended. However, no specific southern models
are admitted.
6
An example is the 2000 World Development Report “Attacking Poverty” (World Bank 2000),
which was revised following a US Treasury intervention. Forced to give the report a more
neoliberal direction, the person in charge of the report-team resigned. As a result, new chapters
on growth and poverty and the importance of markets were included, whereas the need for the
pre-establishment of social safety-nets and for controlling capital and financial flows, as well
as the role of empowerment measures, were emaciated in the final version of the report (Kjær
2004, 179-180).
7
In his comparative study on good governance reforms in the USA, Argentina, Mauritius and
Jamaica, Goldsmith comes to the conclusion that such reforms do not necessarily lead to more
development and that in general “good governance reforms are more effect than cause of spedup development, although over time they seem to become a more important factor in sustaining
development” (Goldsmith 2007, 181).
8
Concerning the fundamental necessity of democratic accountability and feedback mechanisms
in economic development policy, even from an instrumental perspective, see Easterly (2007).
9
Within the World Bank there has always been dissent on whether the rationale of economic
efficiency should be submitted or not to democratic principles; see Sindzingre (2004, 169).
10 Friedman, Milton. The role of government in education. In Economics and the Public Interest,
edited by Robert A. Solo. New Brunswick, NJ: Rutgers University Press (1955, 129); quoted in
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11 Even if there might be a more favourable correlation between the competitiveness of elections
and primary school enrolment, there is certainly no causal relation between these data or facts.
If at all, such differences could be explained only by considering a multitude of aspects, i.e.,
the different measures and policies implemented by each government. Among these measures,
education spending is certainly one of the relevant factors to be considered. Taking into account
that the wealthiest nations are western liberal democracies, it is evident that in these countries
primary school enrolment is higher than in poor countries where authoritarian regimes are much
more common.
12 The same pattern of argument can be found in the northern position concerning the general
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Assembly, September 8. New York: United Nations General Assembly. http://www.un.org/
millennium/declaration/ares552e.pdf (accessed December 8, 2008).
______. 2005. World Summit Outcome. Resolution 60/1, adopted by the General Assembly, September
16. New York: United Nations General Assembly. http://unpan1.un.org/intradoc/groups/
public/documents/UN/UNPAN021752.pdf (accessed December 8, 2008).
Wallerstein, I. 2007. Conocer el mundo, saber el mundo: una ciencia social para el siglo XXI. 3rd
ed. Mexico City / Buenos Aires / Madrid: Siglo Veintiuno Editores.
Werna, E. 1995. The management of urban development, or the development of urban management?
Problems and premises of an elusive concept. Cities 12 (5): 353-359.
World Bank. 1989. Sub-Saharan Africa, from crisis to sustainable growth: A long-term perspective
study. Washington, DC: The International Bank for Reconstruction and Development/The
World Bank.
______. 1992. Governance and development. Washington DC: The World Bank.
______. 1997. World Development Report 1997: Bringing the State closer to the people. Oxford,
New York: Oxford University Press, The World Bank.
______. 2000. World Development Report 2000-2001: Attacking poverty. Oxford, New York: Oxford
University Press, The International Bank for Reconstruction and Development/The World
Bank.
http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/0,,contentMDK:20195
989~pagePK:148956~piPK:216618~theSitePK:336992,00.html (accessed November 26,
2007).
______. 2002. World Development Report 2002: Building institutions for markets. Washington DC:
The World Bank/Oxford University Press.
http://www.worldbank.org/wdr/2001/fulltext/fulltext2002.htm, on 26/11/2007 (accessed November
26, 2007).
______. 2003. World Development Report 2004: Making services work for poor people. Washington
DC/New York: The World Bank/Oxford University Press. http://econ.worldbank.org/
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77688,00.html (accessed November 26, 2007).
______. 2005. World Development Report 2006: Equity and development. Washington DC/New York:
The World Bank/Oxford University Press. http://econ.worldbank.org/external/default/mai
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tyID=000112742_20050920110826 (accessed November 26, 2007).
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A r ti C L E
Policy Positions in the Chilean Senate:
An Analysis of Coauthorship and Roll Call Data*
Eduardo Alemán
University of Houston (UH), Texas, USA
This paper examines the policy positions of Chilean senators. The empirical
analysis focuses on two different legislative activities: voting and coauthoring bills.
The roll call analysis evaluates the degree to which coalitions act as cohesive policy
teams on the floor of Congress, whether parties’ positions match conventional
ideological rankings, and the dimensionality of voting decisions. The coauthorship
analysis provides alternative ideal points to examine similar questions. The findings
of the voting analysis reveal a rather unidimensional world with two distinct clusters
matching coalitional affiliation, while the analysis of coauthorship illuminates a more
complex pattern of associations. Neither roll call votes nor coauthorship patterns,
however, reveal substantive fissures within the governing coalition. In comparison,
the opposition coalition appears more divided along partisan lines.
Keywords: Senate; Coalitions; Legislative politics; Roll call votes; Chile.
T
he transformation of the Chilean party system following the military dictatorship
has attracted considerable attention among political scientists. Unlike most Latin
American nations, Chile had a long tradition of parliamentary politics before the 1973 coup,
and a wealth of research examined the evolution of the party system from its 19th century
origins to the 1970s. For the most part, legislative studies focusing on the contemporary
period support the view that a fundamental realignment of the party system characterized
the most recent transition to democracy.1 They reveal a bipolar mapping of legislators’
preferences, with members of the Chamber of Deputies clustered around two coalitions.
Such a distribution of partisan preferences differs from the conventional characterization of
the party system in the pre-1973 era, which portrays a tripartite grouping along ideological
* The author would like to thank Sebastián M. Saiegh, Ernesto Calvo, Marina Lacalle, Aldo
Ponce, Chris Nicholson and the anonymous reviewers for their comments and suggestions.
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lines. The earlier centrists, the Christian Democrats, are now depicted as close allies of
socialists and radicals, who became their partners in the post-1989 governing coalition.
Most of the evidence presented to support the bipolar alignment in Congress is based
on recorded plenary votes in the Chamber of Deputies. Given the importance of the Senate
in Chilean politics, this emphasis on the lower chamber appears problematic. Good reasons
exist to expect some variation between the two groups of legislators: senators are elected
for longer terms, work in smaller committees, tend to have greater congressional tenure
and seem to be more well-known and possess greater access to non-partisan campaign
resources than members of the Chamber of Deputies. Whether these different incentives
have actually led to lower coalition cohesiveness in the Senate remains to be studied.
This paper seeks to advance the study of Chilean congressional politics by analysing
voting and bill coauthoring in the Senate. The analysis of roll call votes seeks to uncover
the revealed preferences of senators on floor choices, and evaluate the extent to which the
distribution of legislators’ “ideal points” mirrors the bipolar grouping present in the lower
chamber. The choice of bill coauthors can also be used to infer positional proximity between
senators. Since choosing a bill coauthor is subject to partisan and agenda constraints
different from the choice of voting for or against a bill on the plenary floor, policy positions
revealed by analysing coauthorship networks should complement the results of the roll call
analysis.
The rest of this paper is divided into four sections. The first discusses the motivation
for examining roll calls and bill initiation in the Senate. The second presents the analysis of
voting behaviour, showing that despite variations in incentives vis-à-vis the lower chamber,
the voting behaviour of senators is accurately captured by a single dimension representing
ideological and coalitional differences. The related mapping presents partisan coalitions
as highly cohesive organizations, with senators’ positions set clearly apart from those of
their political rivals. The third section presents the analysis of coauthorship bills, which
reveals a more complex pattern of associations: while partisan forces continue to structure
individual positions, ideology is less constraining and cross-coalition commonalities are
more evident. The final section draws conclusions.
Shifting Attention to the Senate
The post-1989 Chilean party system exhibits certain fundamental differences from
its predecessor, with one striking discrepancy being the stability of multiparty coalitions
formed at the time of democratization. The Concertación coalition,2 composed of Christian
Democrats (DC), Socialists (PS), Radicals (PRSD) and other social-democrats (PPD), has
governed for nearly twenty years without losing the support of any of its major constituent
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An Analysis of Coauthorship and Roll Call Data
parties. This makes the Concertación the most stable government coalition in the history of
democratic Latin America. Opposing it is the Alianza coalition,3 which unites two parties
of the ideological right founded in the 1980s: National Renewal (RN) and the Independent
Democrat Union (UDI). This configuration of partisan alliances contrasts sharply with
the feeble alliances that characterized the party system during the prior democratic period
(1932-1973).
Christian Democrats and Socialists moved from being bitter adversaries in the early
1960s to declared enemies by the time of the military coup. However, since the transition
to democracy, the two partisan groups have worked as close allies. A distinctive centre,
acting independently from the interests of the left and the right — i.e., the Christian
Democrats or the Radical Party before the 1970s — has not been a typical characteristic
of the contemporary Chilean party system. Instead, the reconciliation between the centre
and left, and the fault line dividing them from parties on the ideological right, define the
new party system.
The two alliances originally formed at the end of military rule, taking opposite sides
in the referendum for the continuation of General Augusto Pinochet’s government. Since
then, they have dominated the composition of Congress, and their candidates have received
an overwhelming majority of the votes cast in presidential elections. Some research has
highlighted the influence of electoral rules in cementing these coalitions.4 Under the
binominal system (open list with district magnitude = 2), dropping from one of the two
main district lists entails significant electoral risks.5 Studies have also highlighted persistent
discrepancies in the political preferences of Concertación and Alianza supporters, and the
relevance of coalition labels for Chilean voters.6 In addition, the stability of the government
coalition has been fostered by a political class accustomed to the benefits of office.
Legislative studies have examined the voting behaviour of legislators in the Chilean
Congress to evaluate, among other things, the degree of coalition cohesiveness (Carey 2002;
Morgenstern 2004; Toro Maureira 2007; Alemán and Saiegh 2007). All these analyses
highlight the high unity levels of the governing coalition, with the evidence based mainly on
roll calls votes taken in the Chamber of Deputies. Alemán and Saiegh (2007), for example,
show that Christian Democrat deputies hold preferences that are almost indistinguishable
from those of their leftist allies. Their analysis reveals that voting in the lower chamber is
well represented in one dimension, with coalition and ideological differences explaining
most of the variation present in the roll call data. No comparable works exist for voting
on the Senate floor and the only contemporary analysis of legislative positions in the
Chilean Senate is Londregan’s (2000) analysis of voting in three congressional committees.
Londregan, who focuses on the period immediately following democratization (1990-1994),
considers the Senate the institutional battlefield of the transition. Using a special technique
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Eduardo Alemán
developed to map ideal points in cases where only a small number of legislators are voting,
he found support for the bipolar distribution of legislative positions in two of the three
committees. He reveals that the government coalition behaved in a highly cohesive way in
the Labour and Education committees, but exhibited some fragmentation on social issues
in the Constitutional Committee.7
The empirical analysis that follows extends prior research in two critical ways.
First, it provides the first analysis of roll call votes taken in the Chilean Senate. Given the
importance of the Senate in Chilean politics, evidence drawn solely from behaviour in the
lower chamber paints an incomplete picture of congressional politics. It remains to be seen
whether bipolarity and unidimensionality also characterize floor choices in the Senate,
where partisan constraints are arguably less stringent. The political careers of senators are
comparatively less dependent on the whims of coalition leaders than those of deputies, and
senators tend to be more well-known and possess more experience as professional politicians
than members of the Chamber of Deputies. Given that from 1990 to 2006 the government
held a clear majority in the Chamber of Deputies (but not the Senate), it could also be
argued that senators experienced greater opportunities to become independent actors in
policy bargaining than the more easily whipped Deputies in the larger government-dominated
chamber. Therefore, if the empirical analysis fails to find substantive behavioural differences
between senators and deputies at the time of voting on bills, this would strengthen the
concept of bipolarity presented by earlier studies.
The second way in which the empirical analysis presented here extends earlier
work is by analysing information on bill coauthorship. Data on initiated bills provides an
alternative source of information about the policy positions and individual relationships that
senators develop. The legislative literature has begun paying considerable attention to bill
coauthorship activity, with some authors portraying cosponsorship as a (low-cost) positiontaking device targeting electoral constituents (Balla and Nemacheck 2000; Campbell 1982;
Highton and Rocca 2005; Mayhew 1974). Others have portrayed it as a signalling device,
with other legislators serving as the primary targets (Kessler and Krehbiel 1996; Light 1992;
Wawro 2000). Despite differences in emphasis, both perspectives tend to see cosponsorship
as a means of communicating policy positions (i.e., ideology in the U.S. context).
The extent to which voting and coauthoring bills reflect the same underlying positions
held by legislators is debatable. In general, bill initiation tends to be less influenced by
the disciplining forces of party whips and agenda control than voting choices on the
floor of Congress. Coalitions work through the leaders of the respective legislative blocs
and seek to maintain unity on voting decisions, including exerting pressure on potential
dissenters. Since voting affects the value of the party label, opposing one’s own party
in important floor votes can bring serious repercussions, including expulsion from the
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party. This implies that legislators who occasionally share positions with the opposing
coalition are disciplined to avoid dissent on the plenary floor.8 Activities that do not have
immediate policy consequences or harm the party label, such as introducing bills, are
less closely monitored by party leaders than floor votes.9 Consequently, certain policy
coincidence among members of different parties may be better captured by analysing the
choice of bill coauthor.
Similarly, agenda-setters influence the sample of issues that are voted on the floor,
preventing certain latent commonalities from manifesting themselves. Actors with control
over the legislative agenda typically prevent issues that would divide their own parties from
reaching a floor vote.10 To maintain coalition or party unity, agenda-setters seek to exclude
such proposals from the daily calendar or block them from being reported out of committee.
This means that the actual menu of voting choices usually lacks alternatives that could
seriously undermine the unity of the agenda-setter’s coalition. Alemán (2006), for instance,
examines final passage votes in the Chamber of Deputies and reveals that the Concertación
is never rolled in final passage votes, which suggests a high degree of agenda control by
majority leaders.11 In contrast, bill initiation is a bottom-up process where individuals must
take positive action to advance their legislative proposals. Agenda-setters play the role of
gatekeepers here, halting unwanted or inappropriate bills. Differences within the governing
coalition should therefore be more obvious in the coauthorship links that senators develop
than in their voting alignments.
In a recent paper on the Chilean Congress, Crisp et al. (2004) emphasise how electoral
incentives at the district level influence patterns of coauthorship. They present a model
wherein a legislator’s decision to coauthor bills with the opposition, with one’s coalition
or with one’s party, depends on the popularity of these groups in the legislator’s electoral
district. Their analysis points out that under certain conditions, legislators have incentives
to forge links with members of the opposition to improve their reelection chances, and
this decision is not influenced by ideological considerations. If such associations have the
potential to improve reelection chances, as their results suggest, then party leaders may
not discourage some cross-coalition bonding after all.
In short, partisan and/or constituency pressure is more likely to act as a constraining
force on plenary votes than in the choice of coauthors at the bill initiation phase. This means
that party leaders, through agenda-setting mechanisms, old-style whipping or selective
inducements (i.e., patronage), are more likely to structure floor votes than tightly control
the bill initiation and coauthorship process. In addition, the ability of individual legislators
to strategically signal fellow legislators or specific constituent groups should be greater at
the initiation phase. Coauthorship choices should also be likely to reflect some degree of
mutual trust between initiators, besides commonalities with the policy at hand.
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As Crisp et al. (2004) note, coauthorship information is a relevant source of political
data that can be extended in time to include periods where roll call data is unavailable. In
the case of the Chilean Senate, roll call votes are available only from March of 2004 onward,
while data on bill initiation is available online from the moment Congress reopened in
1990 (and in hardcopy format for years prior to 1973). Unlike their Argentinean or U.S.
peers, who are permitted to co-sponsor bills, Chilean legislators are not formally allowed
to attach their names to bills after they are introduced. Hence, coauthored bills are only
associated with the few senators who crafted the proposal in the first place. Extending the
analysis of roll call votes to the Chilean Senate and investigating policy positions in relevant
lawmaking activities besides voting should improve our understanding of legislative politics
in contemporary Chile. To this end, the next two sections present the empirical analyses of
roll call and coauthorship data.
Ideal Points from Recorded Roll Call Votes
Most of the techniques associated with measuring individual preferences and party
unity focus on the analysis of congressional votes. Plenary votes often hold relevant policy
consequences and are important to legislative parties. Interest groups, the media and
constituents also tend to pay greater attention to such votes and their consequences than
to any other single congressional activity. Given the above, it is not surprising that a rich
literature has grown from the analysis of congressional votes.12
The first method employed here to recover senators’ ideal points from roll call votes
is Poole and Rosenthal’s (1997)
w-nominate.
This method, the most common technique
employed within the U.S. legislative literature, is a scaling procedure based on a probabilistic
spatial model of voting.13 It employs a matrix of legislators and roll calls and produces
a k-dimensional map of individual ideal points and roll call parameters. A legislator’s
overall utility for voting “Yea” is conceived as the sum of a deterministic utility and a
random error. This technique provides various measures of fit, including the proportion of
correctly classified votes, and the overall weight (i.e., strength of the eigenvalues) of each
dimension.
The roll call data available for the Chilean Senate, beginning in March 2004, is rather
small in comparison with the data available for the lower chamber. Until the new cohort of
senators took office in 2006, a total of 313 votes were recorded. Of these recorded votes, 118
were unanimous or near unanimous and were therefore dropped from the statistical analysis;
the other 195 votes comprise the dataset utilized here. The total number of senators included
in the analysis is 49, with 25 belonging to the Concertación and 24 belonging to Alianza.
The actual membership at any given time was 48, since one member of the Concertación,
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Senator Jorge Lavandero (DC) was replaced halfway through his term by Senator Guillermo
Vásquez (PRSD). Among these senators, a group of ten exists that were not popularly
elected: six appointed senators associated with the Alianza, as well as three appointed
senators and one former President (Eduardo Frei) associated with Concertación.
The results of applying w-nominate to the roll call data are plotted in Figure 1.14 The
top panel maps senators’ ideal points on two dimensions, while the bottom panel provides
information on the dimensionality of voting. Senators from the Concertación coalition are
represented by round nodes and labels indicating whether the senator is from the Christian
Democratic Party (DC), the Radical Social-Democratic Party (PR), one of the other leftist
parties comprising the Concertación (L), or is an appointed senator (INS). Elected senators
from the Alianza coalition are represented by triangular nodes and labels indicating the
initials of the senator’s party (UDI or RN). Appointed senators associated with Alianza
are represented by squared nodes.
Figure 1. Chile’s Senate: Ideal points on roll call data
2004-2006 (W-NOMINATE).
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Overall,
w-nominate
Eduardo Alemán
does a very good job in predicting individual choices on the
plenary floor, with the proportion of correctly predicted votes at 90.8%. The aggregate
proportional reduction in error, measuring how well the model classifies choices beyond
a random baseline, is .63. The geometric mean probability, measuring fit based on the
log-likelihood function, is .80.15 Both measures, which are comparable across legislatures,
reflect a good statistical fit.16
The distribution of senators’ ideal points derived from the roll call analysis resembles
the bipolar mapping ascribed to the lower chamber. All senators from Concertación are
grouped together in one area of the first dimension, with senators from Alianza clustered on
the opposite side.17 Although differences within coalitions are very small on this dimension,
the rank ordering of partisan medians follows the conventional expectations of the partisan
literature: at the far left we find socialists and other non-DC members of Concertación
(-.84), closely followed by the DC (-.74), with RN (.58) and the UDI (.76) on the far right.
On roll call votes, appointed senators appear positioned closely to their fellow (popularly
elected) coalition members.
The second, less-relevant dimension captures intra-coalition differences, particularly
within Alianza. Appointed senators (all placed at the lower end of the map) stand opposite
to RN senators (all on the upper side of the map). UDI senators are positioned in the
middle, somewhat closer to RN. Within Concertación, the second dimension captures some
differences between a group of DC senators (at the lower end) and a cohort of senators
from the ideological left (at the upper end). It should be noted that regardless of coalition,
most appointed senators are positioned at the low end of the second dimension. Senator
Enrique Silva Cimma, a social-democrat and former President of the Radical Party, is the
only appointed senator with an ideal point clearly on the upper end.
The low dimensionality of voting patterns is reflected in the eigenvalues reported in
the lower panel of Figure 1. A sharp drop occurs when moving from the first to the second
dimension. The number of correctly classified votes increases by just over 2% when moving
from a one-dimensional to a two-dimensional model. Overall, the values suggest that a onedimensional model accurately describes voting behaviour in the Chilean Senate.
Applying a non-parametric model to this data, such as Poole’s optimal classification,
may further illuminate this issue. It also provides a solid check on the results, since this
method does not rely on particular distributional assumptions about errors.18 As Rosenthal
and Voeten (2004) note, in legislatures where party discipline is high but not uniform
across partisan blocs, the assumption of independent and identically distributed errors is
likely to be violated. Under such circumstances, a non-parametric method may prove more
appropriate. The one dimension rank ordering of legislators resulting from applying optimal
classification
81
to this data appears in Figure 2.
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50
40
OC rank
30
20
10
L
L
DC
INS
INS
PR
PR
0
0
L
L
10
L
L
L
INS
INS
INS
UDI
INS
RN
UDI
UDI
UDI
UDI
UDI
UDI
UDI
RN
RN
RN
UDI
RN
RN
RN
INS
INS
DC
DC
INS
DC
DC
DC
DC
INS
DC
DC
20
30
OC rank
40
50
Figure 2. Chile’s Senate: Ranking based on roll call data 2004-2006 (OPTIMAL
CLASSIFICATION).
The optimal classification analysis successfully predicts 91.9% of votes. The ranking of
legislators shown in Figure 2 is highly correlated with the one stemming from w-nominate’s
first dimension (Spearman’s rank correlation is .96). The distribution of partisan preferences
matches conventional ideological rankings and no cross-coalition overlap exists.
The so-called “military bloc” comprising four senators appointed by the National
Security Council and one elected UDI senator is ranked at one end. This group includes
three former members of the military junta under Pinochet — Senators Jorge Martínez
(Navy), Julio Canessa (Army) and Rodolfo Stange (Carabineros) —, as well as former Air
Force chief Ramón Vega and another past head of the Carabineros, Fernando Cordero.
Within Alianza, the two senators nearest the centre were appointed by the Supreme Court
— Enrique Zurita and Marcos Aburto. Both senators became members of the Supreme
Court during the military government and continued serving there until their appointment
to the Senate.
Within Concertación, the three senators from the Radical Social-Democratic Party
(one of them appointed) are ranked at one end, while most senators from the Christian
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Eduardo Alemán
Democratic Party appear closer to the centre. For example, Senator Adolfo Zaldívar, former
President of the Christian Democratic Party, is ranked 19 (to the right of the Concertación
median and just beside his party’s median), while senators from the PS/PPD parties are
all positioned next to each other, occupying rankings 6-12. The senator taking the median
position in the chamber, Jorge Lavandero, was present for relatively few votes before being
expelled from the Christian Democratic Party and resigning amid a criminal scandal.19 The
actual median of the entire chamber lay in between the Concertación and Alianza. The
other three senators sharing the highest (more moderate) ranking within Concertación
are Alejandro Foxley, Gabriel Valdés and Carmen Frei. Former President Eduardo Frei is
ranked next to them.
In sum, the results derived from the roll call analysis convey two salient findings.
Firstly, they reveal a party system organized around two cohesive coalitions that tend
to adopt distinct policy positions. There is no separate centre composed of “moderate”
members of both coalitions; instead, voting behaviour reflects unity between leftists and
Christian Democrats, foes before the military coup. Secondly, the voting data is accurately
captured in one dimension. The central force driving positions in the first dimension is
coalitional affiliation. Within the two coalitions, differences tend to reflect the ideological
ranking of parties commonly present in the literature on Chilean politics. It should also be
noted that both blocs differ not only in electoral goals and ideological positions, but also
in their adherence to the government or the opposition. These overlapping influences also
contribute to the bipolar clustering of positions observed on the first dimension.
Bill Coauthorship Links
The underlying dimensions of political conflict in Congress should also be reflected
in the analysis of coauthorship ties. After all, voting and coauthoring represent two sets
of bill-related choices made by the same senators. The constraints and incentives behind
coauthorship choices, however, are unlike those surrounding plenary votes. This leads us
to expect greater cross-partisan connections and higher dimensionality.
The data utilized in this section includes information on all 101 bills coauthored by
senators between March 2002 and March 2006. These bills, representing 56% of all bills
introduced by senators during this period, have a median of four coauthors per proposal.
The relationships developed between senators can be conceptualized as a network of policy
links and in this coauthorship network, about ¼ of all possible dyadic ties are actually
present. A major difficulty in applying techniques common to the analysis of roll call data
to coauthorship data lies in attempting to infer the position of non-authors regarding the
bills introduced. Unlike roll call votes, where members present must choose to support,
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oppose or abstain, the only concrete information available when a bill is introduced is a
partial count of supporters. In a recent paper, Alemán et al. (2009) develop a method to
map ideal points that overcomes this problem by analysing the symmetric matrix capturing
dyadic relations.
The procedure begins with transforming a two-mode matrix (legislators x bills) into
a one-mode matrix (legislators x legislators), reflecting the strength of coauthorship ties
present inside the chamber. This valued matrix representing the count of ties between
each pair of legislators is then transformed into an agreement matrix indicating the relative
proportion of ties each legislator has with others. Principal components analysis (using
singular value decomposition) is then applied to the normalized agreement matrix. The
positions of Chilean senators, derived by applying this method to the coauthorship data,
appear in the top panel of Figure 3. Labels and node shapes are identical to those used in
prior figures.
The bottom panel of Figure 3 provides information on the dimensionality of the data,
indicating the proportion of variance explained by each component. As expected, the results
provided by examining coauthorship data reflect a more multidimensional setting than that
rendered through analysing voting data. The first component captures an important part
of the variance present in the data (close to ¼); however, the decrease when moving to
subsequent components is not as steep as the eigenvalue decline in the voting data. The
two-dimensional map (formed by the first two components) presented in Figure 3 explains
35.7% of the variance.
While the results from analysing coauthorship data do not reflect the same bipolar
distribution of positions common to roll call data, coalitions and partisan groupings still
tend to pull their senators close to each other. For example, all senators from RN appear
very near each other on the right of the map, almost all UDI senators are positioned high
on the second component moving from centre-left to centre-right, and nearly all senators
from the governing coalition are placed on the left of the map. All appointed senators
appear on the left of the map: those associated with Alianza are grouped closely together
and generally lower than those associated with the Concertación.
Ideological differences appear to be captured better by the second than by the first
component. The ordering of party medians on the second component follows conventional
ideological rankings: UDI = .622, RN = .194, DC = -.136, and non-DC members of
Concertación = -.397. The correlation between senators’ positions on the second component
and their first dimension positions derived using w-nominate on voting data is .483. In turn,
senators’ positions on the first component have a rather high correlation of .582 with the
second dimension positions derived with
w-nominate.20
This dimension captured mainly
intra-coalition differences, particularly within Alianza.
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Figure 3. Chile’s Senate: Ideal points based on coauthorship
data 2002-2006 (principal components).
It can be argued that mathematical dimensions do not necessarily coincide with
the substantive ideological dimension, which appears to run in a diagonal fashion. One
technique that aids in interpreting the structure of spatial maps is using the estimated
dimensions as independent variables in a simple linear regression where the dependent
variable is a characteristic of the legislators, such as ideology (Poole 2005, 152-154). The
line drawn in Figure 4 was created by regressing the score produced by the first dimension
of
w-nominate
(proxy for ideology) on the two coauthorship components.21 Coefficients
of the independent variables are used as elements of a normal vector, which together with
its reflection contribute to form the line added in Figure 4. Moving from “ideological left”
to “ideological right”, the predicted values run from the lowest to the highest possible.
The dashed line perpendicular to this vector signals the ideological centre; senators below
it “should be” from the ideological centre-left, and those above it “should be” from the
ideological centre-right.
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Figure 4. Ideological dimension in the coauthorship
map.
As can be seen, most senators are grouped with fellow coalition members on the same
side of the projected ideological vector. All popularly elected senators from Concertación
are on the expected side of the substantive ideological dimension. A few senators, however,
appear closer to their political rivals despite ideological disparities.
Coauthorship ties, motivated by more complex political concerns than floor votes,
bring some members together despite salient ideological differences. A closer examination
of the results suggests that those adopting more ideologically extreme positions in roll
call votes are also quite likely to build substantive coauthorship links with members of
the opposing coalition. This is in fact the opposite of what Alemán et al. (2009) expect
when analysing cosponsorship and voting in Argentina and the USA. They see legislators
who take extreme positions as less susceptible to party pressure when voting, which to
them suggests greater ideological consistency in both activities. They present evidence
from the USA and the Argentine lower chambers supporting the view that extremists take
more consistent positions than more moderate legislators. This association for Chilean
senators can be appreciated in Figure 5, which plots the rank of legislators by employing
optimal classification
on roll call votes (on the vertical axis) and positions derived from
the second component by employing principal components on bill coauthorship data (on
the horizontal axis).
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Eduardo Alemán
Figure 5. Roll call ranking and coauthorship positions.
This figure illustrates that senators that the roll call analysis had placed at the
extremes are closer to the centre in the coauthorship analysis.22 The so-called “military
bloc”, positioned opposite the leftist parties in the analysis of floor voting, is actually rather
close to the non-DC members of Concertación in terms of bill initiation. Although the left
and the “military bloc” seldom share the same side on divided roll call votes, they still have
policy agreements that are reflected in bill initiation patterns. Non-ideological interests can
often lead to strange bedfellows. While this interesting finding deserves attention in future
research, one rationale for this pattern is worth mentioning here.
The introductory discussion noted that senators tend to possess greater leeway to
act independently from partisan or constituent pressures at the initiation stage than at the
voting stage, thereby creating a less limiting context for individual senators to signal specific
constituencies, fellow legislators or both. When coauthorship is viewed as a signalling device,
the occasional choice of a rather extreme opponent as a coauthor can be interpreted as a
valuable signal. For example, a Concertación senator pushing a proposal seen as lacking
in ideological content may be better able to promote it as a consensual bi-coalitional bill
if it is also associated with a known right-winger, vis-à-vis a more moderate member of the
opposition. If the more extreme member is committed to the bill, presumably all moderates
from the opposing coalition should support it on the floor of Congress. However, frequent
coauthoring with extreme adversaries is likely to entail some costs with constituents and party
militants. Despite common cross-coalition links, the evidence indicates that in the end, elected
senators are significantly more likely to coauthor bills with a fellow coalition member.
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Six appointed senators adopting rather extreme positions in roll call votes appear as
moderates in terms of coauthorship. Strictly speaking, appointed senators do not possess
electoral constituencies that constrain their behaviour, and the influence of coalition leaders
over them is presumably lower than that imposed upon elected senators. Therefore, any
differences in behaviour between coauthoring bills and voting cannot be explained by
such constraints. Their occasional appeal as extremists provides one possible explanation;
however, their defining trait — the lack of an electoral connection — may also play a role.
Their more central position on coauthoring may reflect their inability to use bill coauthoring
as an electoral asset, providing another reason why opposition members may prefer to
coauthor with them rather than with future competitors at the district level. Their nonpartisan status may also contribute to give bills a non-ideological appearance. In turn,
appointed senators seeking to make a policy impact may see building some bridges with
the governing party as their only chance.
The substantive links developed between members of different partisan groups can
be visualized in Figure 6, with lines indicating coauthorship ties and line width reflecting
the strength of such connections (i.e., number of bills coauthored).23
Figure 6. Chile´s Senate: Coauthorship links 2002-2006
(principal components).
The figure illustrates a tightly connected group of opposition senators at the top right
of the figure (all RN senators and half of the UDI senators belong to this group). A more
populous and less compact cross-partisan group that includes almost all Concertación
senators is placed to the left of the figure. Differences within Alianza again separate RN
senators from the appointed senators (with UDI members somewhere in between).
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Figure 6 also highlights the distinctive role played by a few senators who serve as
bridges between these groups. This is particularly evident in the case of Concertación
Senators José Antonio Viera-Gallo and Enrique Silva Cimma. Senator Viera-Gallo, a
socialist, appears to play a central linking role between a sizeable group of Concertación
senators (on the lower part of the second dimension) and a small cadre of Alianza senators
(particularly members of RN). Appointed Senator Silva Cimma seems to play a similar role
with a different and somewhat smaller group of Concertación and UDI senators. While
it can be said that these two senators occupy a middle position between both groups in
the network, they are not ideological centrists (according to optimal classification, Silva
Cimma and Viera-Gallo are ranked 3 and 11, respectively).
Conclusion
The empirical analyses of roll call and coauthorship data present complementary
views on the behaviour of Chilean senators. On the one hand, the analysis of voting reveals
a rather unidimensional world, with two distinct clusters matching coalitional affiliation.
When dissent exists in plenary votes, coalition unity tends to prevail. In addition, senators’
positions along the main dimension correlate with conventional ideological rankings. These
findings coincide with those presented by Alemán and Saiegh (2007) in their analysis
of voting behaviour in the Chamber of Deputies. Despite variations in incentives and
institutional context, the results confirm that coalitions in the Senate also act as highly
cohesive teams at voting time. On the other hand, the analysis of coauthorship data reveals
a more complex pattern of associations. While parties continue to act as magnets in drawing
their members together, coalitions are less clearly separated. In particular, an important
group of senators associated with the Alianza appears closer to the governing coalition
with regard to coauthoring.
These findings contribute to the debate on the reconfiguration of the Chilean party
system by illuminating senators’ behaviour in two fundamental legislative tasks. In terms
of coalitional strength, both analyses portray a closely-linked government coalition. Neither
roll call votes nor coauthorship patterns reveal substantive fissures within Concertación.
However, the opposition coalition appears comparatively more divided along partisan
lines. This is consistent with earlier empirical work focusing on the lower chamber that
portrays Alianza as less unified on floor votes. The results also suggest that the elimination
of appointed senators (institucionales) — effective since the second trimester of 2006 —
would probably lead to greater cohesiveness within Alianza. However, the inverse of this
change is a potential lowering of cross-coalition links in bill initiation.
In conclusion, the bipolarity evident in roll call votes and electoral competition does
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not necessarily imply that senators’ behaviour is consistently polarized along ideological
lines. Some years have passed since the end of military rule, and the daily interplay of
congressional politics has forced adversaries to work together and find policy commonalities.
This has contributed to a resurgence in substantial links between ideological opposites that
has not eroded the unity of purpose that coalitions show in floor votes. Further research on
the evolution of coauthorship networks and motivations behind coauthorship links should
improve our overall understanding of congressional politics in Chile.
Submitted in October, 2008.
Notes
1
Carey (2002), Morgenstern (2004), Alemán and Saiegh (2007).
2
Its full name is Concertación de Partidos por la Democracia.
3
Its full name is Alianza por Chile. The alliance had different names in the past (e.g., Unión por
Chile; Democracia y Progreso).
4
Magar et al. (1998) and Dow (1998).
5
Carey (2002) and Rabkin (1996).
6
See, for example, Tironi and Agüero (1999), Torcal and Mainwaring (2003) and Carey (2002).
7
Most permanent committees in the Senate have five members.
8
Presumably such legislators are, in the long run, compensated for occasional losses with policy
and/or electoral benefits.
9
Alemán et al. (2009).
10 This is the negative agenda power that Cox and McCubbins (2005) highlight in their influential
book, Setting the Agenda.
11 A coalition (or party) is rolled when a majority of its members vote against a bill and the bill passes
nonetheless. See Cox and McCubbins (2005).
12 Poole (2005), chapter 1.
13 See Poole and Rosenthal (1997), and Poole (2005), chapter 4.
14 Figures made with STATA 10.1 software.
15 When APRE = 0 the model explains nothing, while APRE = 1 means a perfect classification.
GMP varies from .5 (no better than flipping a coin) to 1.
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Eduardo Alemán
16 For instance, in an analysis of the U.S. Senate (90th Congress) commonly used as a w-nominate
example, APRE = .476 and GMP = .706.
17 The actual placement on the left or right is arbitrary. Here, it follows conventional ideological
perceptions.
18 See Poole (2005), chapter 3.
19 He was replaced by Senator Vasquez.
20 The correlation with the first dimension is .350.
21 This is: wnominate1 = α + β1 × PC1 + β2 × PC2, resulting in: wnominate1 = -0.036 + 0.351 ×
PC1 + 0.703 × PC2. The associated standard errors are 0.1948 and 0.2184 (both statistically
significant at conventional levels). The R2 is 0.2838.
22 This pattern is also present when coauthorship positions from the first component are plotted
instead of those from the second component. This figure is not shown, but available upon
request.
23
In this map, produced with Netdraw software, all nodes are round and only colour divides
Concertación senators (red) from popularly elected Alianza members (black) and appointed
senators associated with Alianza (blue). Borgatti, Stephen P. 2002. Netdraw Network Visualization.
Harvard, MA: Analytic Technologies.
Alemán, Eduardo. 2006. Policy gatekeepers in Latin American legislatures. Latin American Politics
and Society 48 (3): 125-155.
Alemán, Eduardo, and Sebastián M. Saiegh. 2007. Legislative preferences, political parties and
coalition unity in Chile. Comparative Politics 39 (3): 253-272.
Alemán, Eduardo, Ernesto Calvo, Mark P. Jones, and Noah Kaplan. 2009. Comparing cosponsorship
and roll-call ideal points. Legislative Studies Quarterly 34 (1): 87-116.
Balla, Steven J., and Christine L. Nemacheck. 2000. Position-taking, legislative signaling, and
non-expert extremism: Cosponsorship of managed care legislation in the 105th House of
Representatives. Congress & the Presidency 27 (2): 163-188.
Campbell, James. 1982. Cosponsorship legislation in the U.S. Congress. Legislative Studies Quarterly
7:415-422.
Carey, John M. 2002. Parties, coalitions and the Chilean Congress in the 1990s. In Legislative
politics in Latin America, ed. Scott Morgenstern and Benito Nacif, 223-253. Cambridge:
Cambridge University Press.
Cox, Gary W., and Mathew D. McCubbins. 2005. Setting the agenda: Responsible party government
in the U.S. House of Representatives. Cambridge: Cambridge University Press.
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Crisp, Brian, Kristin Kanthak, and Jenny Leijonhufvud. 2004. The reputations legislators build:
With whom should representatives collaborate? American Political Science Review 98 (4):
703-716.
Dow, Jay K. 1998. A spatial analysis of candidates in dual member districts: The 1989 Chilean
senatorial elections. Public Choice 97:119-142.
Highton, Benjamin, and Michael Rocca. 2005. Beyond the roll-call arena: The determinants of
position taking in Congress. Political Research Quarterly 58 (2): 303-316.
Kessler, Daniel, and Keith Krehbiel. 1996. Dynamics of cosponsorship. American Political Science
Review 90 (3): 555-566.
Light, Paul C. 1992. Forging legislation. New York: W. W. Norton.
Londregan, John B. 2000. Legislative institutions and ideology in Chile. New York: Cambridge
University Press.
Magar, Eric, Marc R. Rosenblum, and David Samuels. 1998. On the absence of centripetal incentives in
double-member districts: The case of Chile. Comparative Political Studies 31 (6): 714-739.
Mayhew, David. 1974. Congress: The electoral connection. New Haven: Yale University Press.
Morgenstern, Scott. 2004. Patterns of legislative politics: Roll-call voting in Latin America and
the United States. Cambridge: Cambridge University Press.
Poole, Keith. 2005. Spatial models of parliamentary voting. Cambridge: Cambridge University
Press.
Poole, Keith, and Howard Rosenthal. 1997. Congress: A political-economic history of roll call voting.
Oxford: Oxford University Press.
Rabkin, Rhoda. 1996. Redemocratization, electoral engineering, and party strategies in Chile, 19891995. Comparative Political Studies 29 (3): 335-356.
Rosenthal, Howard, and Erik Voeten. 2004. Analyzing roll calls with perfect spatial voting: France
1946-1958. American Journal of Political Science 48 (3): 620-632.
Tironi, Eugenio, and Felipe Agüero. 1999. ¿Sobrevivirá el actual paisaje político chileno? Estudios
Públicos 74:151-168.
Torcal, Mariano, and Scott Mainwaring. 2003. The political re-crafting of social bases of party
competition: Chile 1973-95. British Journal of Political Science 33:55-84.
Toro Maureira, Sergio. 2007. Conducta legislativa ante las iniciativas del Ejecutivo: Unidad de los
bloques políticos en Chile. Revista de Ciencia Política 27 (1): 23-41.
Wawro, Gregory. 2000. Legislative entrepreneurship in the U.S. House of Representatives. Ann
Arbor: University of Michigan Press.
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A r ti C L E
Justice, Professionalism, and Politics in the
Exercise of Judicial Review
by Brazil’s Supreme Court
Federal University of São Carlos (UFSCar), São Paulo, Brazil
This study analyses interactions between Law, professionalism and politics.
The primary intent is to understand the judicial behaviour of Brazil’s Supreme Court
in the development and consolidation of democracy, by analysing how its justices
voted in decisions regarding the constitutionality of laws (judicial review) in the
1988-2003 period and investigating factors that influenced the Court’s decisions.
These decisions are analysed both quantitatively and qualitatively in search of: a)
voting differences corresponding to the career of each member of the Court; b)
justices’ attitudes as either Constitution interpreters or reproducers of legal texts;
and c) the rapporteur’s profile, as well as the profiles of the justices that voted with
him/her.
I conclude that although political factors do shape the decision-making process
of Brazil’s Supreme Court to some extent, professionalism plays a central role in
determining its judicial behaviour.
Keywords: Brazil Supreme Court; Professionalism; Law and politics; Judicial
politics.
Introduction
T
he paper is divided into six sections. The first section introduces the discussion,
theoretically and methodologically. The second focuses on decisions on the
constitutionality of laws by means of ADIN (Ação Direta de Inconstitucionalidade) cases,
observing the role played by professionalism in these decisions — here I use justices’ career
before being appointed to the Court and justices’ orientation as a proxy for professionalism.
The third section discusses how justices’ career path and orientation can influence in the
alliances and group formation inside the tribunal. Section four is about the construction
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of arguments in ADINs, analysing how justices try to build consensus despite differences
in terms of career and orientation. In section five, I explore examples of political and
technical decisions, evincing the association between a justice’s career and the decisions
he/she makes. In the last section, all the findings are summarized and the main argument
that pervades the paper is spelt out. It concludes that the unique role that Brazil’s Supreme
Court plays in the national political and legal systems is supported by the differentiation
of its justices from other political actors. This distinction is based on the legal authority
of knowledge and professionalism — a professionalism that distinguishes and legitimates
justices, distancing them from private political and economic interests.
The question at the core of this study is “How does Brazil’s Supreme Court decide
cases?”1 I intend to develop a model that analyses the judicial behaviour of the court to
determine the most influential elements in the decision-making process. Analysing judicial
decision-making processes is a key aspect in formulating an understanding and discussion
of judicial independence, transparency, security and more presumable decisions. Such
issues are of vital importance, especially vis-à-vis recent trends towards strengthening the
rule of law in Latin America, which accompany the promotion of free market economics,
democratization and alternative conceptions of justice (Domingo and Sieder 2001; World
Bank 2003 ; Garth and Dezaley 2002; Shapiro and Sweet 2002).
In order to understand the decision-making process of Brazil’s Supreme Court,
I look at the way justices practised constitutional control and effectively decided ADIN
cases (direct unconstitutionality suits of federal or state laws or normative acts), during
the period from the promulgation of the 1988 Constitution to March 2003. I examine the
elements of most influence over justices’ practical activities, make remarks on how these
elements interrelate and assess the role they play in the decisions of the Court.
The theoretical problem that pervades this discussion is determining how law and
politics relate to each other. Among the diverse possible answers, I sought one that places
professionalism as an active element within this relationship.
My approach integrates different perspectives that approach this theme, associating
elements of sociology of professions, judicial politics and, to a lesser extent, jurisprudence.
These approaches complement each other and are vital in the construction of a model that
analyses and interprets the judicial behaviour of Brazil’s Supreme Court during the period
in question.
In the discussion of the constitutional control of laws, the process by which judges
arrive at decisions is often questioned. The debate is generally around the classic option:
whether there are legal-judicial or extralegal, extrajudicial factors that mostly influence
decisions. The practice of judging is classified as either restrictive or activist (some authors
use conservative versus liberal). In this study, the attempt to integrate various factors into
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Justice, Professionalism and Politics in the Exercise
of Judicial Review by Brazil’s Supreme Court
the analysis leaves some of that duality behind, because the assumption is that the Supreme
Court’s decision-making process is determined by a combination of factors: legal, extralegal
and the ideology of professionalism.
It is also assumed, as suggested by Ronald Dworkin (2001), that all judicial decisions
are political at some point, ruled by general political laws or by convictions that involve
concepts of common welfare. Therefore, the distinction is between “matters of political
principles” and “matters of political procedures (political policies)”. I assume that the
Supreme Court justices’ decisions are political because they have the power to invalidate
laws and other actions of the government (when declaring a law/decree unconstitutional).
In addition, the decisions they make are fundamental to the protection of rights and
constitutional principles that allow the operation and stability of democratic institutions.
When making decisions, justices can legitimate their votes using political arguments (taking
into consideration the political, economic and/or social consequences of their decision) or
technical arguments (not considering the consequences of the decision).
The Judiciary and the Supreme Court are part of the political system because they
interpret laws. However, it is necessary to consider, as Elliot Slotnick (1991) states, that
values, type of training, personality and individual preferences can influence how judges
decide cases. Hence, decisions can be seen as a hybrid of “law, politics and policy” (Slotnick
1991, 72). Slotnick suggests that judges are not completely free agents; their choices are
guided and restricted by the Constitution, by precedent, by fear of sanction and other
environmental forces. Their decisions are influenced by other judges and the institution to
which they belong. Slotnick takes up Gibson’s idea that judges’ decisions “are a function
of what they prefer to do, tempered by what they think they ought to do, but constrained
by what they perceive is feasible to do” (Gibson 1983, 9).
Judicial behaviour has been vastly studied in American judicial politics (Tate 1981,
1999; Slotnick 1991; Shapiro and Sweet 2002; Segal and Spaeth 2002). Four main
approaches deal with the explanation of judicial behaviour in the literature: the legal,
attitudinal, institutional and strategic models.
Briefly, the legal model states that judicial decisions are based on the plain meaning of
the Constitution, the intent of the framers and the precedents, balancing these factors with
societal interests. The attitudinal model states that Supreme Court justices determine decisions
based on their own personal and political preferences and ideological convictions (Segal and
Spaeth 2002), while the strategic model states that justices’ decisions are constrained by
social and political forces (George and Epstein 1992; Mishler and Sheehan 1993; Epstein and
Knight 1998). The institutional model affirms the need to recognize that judicial decisions
are structured by the Court as an institution and are influenced by its relationship with other
institutions in the political system (Feldman 2005; Clayton and Gillman 1999).
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I favour a balance between these four models, considering that legal factors (legal
procedures and constitutional principles) interact with extralegal factors (justices’ political
preferences, economic, social, political and institutional constraints) in the way Brazil’s
Supreme Court decides cases. In addition, I highlight one element not emphasised by these
models, namely, professionalism.
I argue that law and politics are imbricate in the decision-making process and
professionalism operates in this relationship as a source of distinction and legitimation;
professionalism differentiates Supreme Court justices from other political actors.
Elliot Freidson’s (2001) theory of professionalism is used. According to Freidson, the
ideology of professionalism establishes expertise as a differential, bringing together liberal
education and specialized training, which qualifies professionals to organize and control
their work, free from the interference of managers and consumers (Freidson 2001, 121).
This ideology vindicates devotion to values of justice, truth and prosperity. These
values add moral substance to the technical content of professions. The key elements of
professionalism are independence of judgment, freedom of pursuit, monopoly, credentialism
and professional ideology. According to Gloria Bonelli (2002), law-related professions
are made up of careers reserved for individuals with a degree in Law. As this study deals
specifically with law-related professions, it is important to add politics to these elements,
which is of major importance in delimiting the boundaries of these careers.
Politics within a profession is different from conventional politics because its meaning
is entwined in anti-politics. It is in the distinction of expertise that professionals seek authority
to obtain influence in the political sphere. Their political discourse lies in constitutional
arguments, in techno-judicial formalities and in the institutional framework of the judicial
system. Another concept that distinguishes professionalism is the notion of moral mandate
that requires professionals to act in the defence of social interests (Halliday 1999a).
Law professionals have, according to Terence Halliday (1999b), a peculiar capacity
to convert their technical expertise into moral authority. In order to maintain this capacity,
they need to maintain a certain ideological unity and certain argumentative neutrality, thus
avoiding an excessive politicalization of their issues. If they opt for politicalization, distancing
themselves from legal solutions, they make their authority fragile and cause tension in the
boundaries that demarcate profession and politics (Halliday 1999b, 1056-1058).
The symbolic efficiency of the politics of professionalism is deep-rooted in the capacity of
professionals to perform politically, and to influence political strategy without being identified
as designates of private interests. By arguing in defence of interests believed to be universal
and democratic, law professionals place themselves above conventional politics.
Within this line of interpretation, my model supports the argument that while to some
extent political factors influence the decision-making process of Brazil’s Supreme Court,
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professional commitments and ideology are the most important elements determining judicial
behaviour. Professionalism legitimates justices by distinguishing them from other political
actors and distancing them from private economic and political interests. In order to test my
model, 300 ADIN cases decided by the court during the 1988-2003 period were analysed.
The Judgment of ADINs
From the promulgation of the Constitution of 1988 until March 2003, the Supreme
Court judged 1,666 constitutional cases — ADINs. Considering these 1,666 cases as a
reference population, and using random sampling procedures, a 300-case sample size was
selected.2
The decisions of ADIN cases include: 1) a claim memorandum; 2) a report, written
by one of the justices selected as a rapporteur;3 3) the vote of the rapporteur; 4) the votes
of the justices who participated in the trial (justices can either agree or disagree with the
rapporteur); and 5) the summaries of the proceedings and decision.
Given that one is concerned with the process by which the Supreme Court decides
cases, the chief interest is in the outcome of the decisions. Decisions will either declare a law
unconstitutional (which will be referred to as a positive outcome, approved) or constitutional
(which will be referred to as a negative outcome, rejected). Our empirical question is: “What
factors most influence the Supreme Court to consider a law unconstitutional?”
I argue that legal and extralegal factors influence court decisions. However, it
is impossible to incorporate into my model all the complexities involved in judicial
behaviour.
The dependent variable is whether the outcome of the ADIN is constitutional or
unconstitutional. As independent variables, the factors that I felt could best be measured
and that could have a correlation with the outcomes were selected.
The following 10 independent variables were tested as predictors of the decision
outcome: 1) President who appointed the justice (1 = military, 0 = non-military);4 2)
Origin of contested law (1 = federal government, 2 = state government, 3 = judiciary);
3) Petitioner (1 = state government, 2 = Prosecutor-General, 3 = political party, 4 =
associations (confederative unions or nationwide professional bodies), 5 = Brazilian Bar
Association and Brazilian Judges’ Association (OAB/AMB)); 4) Object of the law appealed
(1 = public administration, 2 = partisan political issues, 3 = economy and tax, 4 = civil
society); 5) Justice’s orientation (1 = restrictive, 0 = activist);5 6) Justice’s tenure (years
he/she has spent on the Court); 7) Justice’s career before being appointed (1 = judge, 0
= prosecutor or politician); 8) Administration − Government during which the case was
decided (1 = José Sarney, 2 = Fernando Collor, 3 = Itamar Franco, 4 = Fernando Henrique
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Cardoso – 1st administration, 5 = Fernando Henrique Cardoso – 2nd administration, 6 =
Lula); 9) Vote of the rapoteur (1 = approved, 0 = not approved); 10) Temporary injunction
(1 = approved, 0 = rejected).6
Our sampling involves 18 justices who were on the Court between 1988 and 2003. They
were classified by considering whether they used to be judges and by their orientation.
Table 1 Justices who were rapporteurs of ADINs
Justice
Former judge
Orientation
Number of ADINs
Célio Borja
No
Activist
1 (0.3)
Aldir Passarinho
Yes
Restrictive
2 (0.7)
Paulo Brossard
No
Activist
5 (1.7)
Francisco Rezek
No
Activist
7 (2.3)
Nélson Jobim
No
Activist
8 (2.7)
Celso de Mello
No
Activist
8 (2.7)
Gilmar Mendes
No
Restrictive
8 (2.7)
Sepúlveda Pertence
No
Activist
10 (3.3)
Ellen Gracie
Yes
Restrictive
12 (4.0)
Marco Aurélio
Yes
Activist
15 (5.0)
Octávio Gallotti
Yes
Restrictive
19 (6.3)
Sydney Sanches
Yes
Restrictive
28 (9.3)
Carlos Velloso
Yes
Activist
29 (9.7)
Moreira Alves
No
Restrictive
30 (10.0)
Néri da Silveira
Yes
Restrictive
32 (10.7)
Maurício Corrêa
No
Restrictive
35 (11.7)
Ilmar Galvão
Yes
Restrictive
51 (17.0)
Total
300 (100.0 %)
*Justice Carlos Madeira (Former judge, Restrictive) was not rapporteur of any ADIN in the sample.
The analysis of the decisions reveals that 52% of the outcomes were positive
(approved — text was considered unconstitutional) and 83% of the cases were decided
unanimously. Regarding the object of the law appealed in these cases, 63% referred to public
administration, 20% to economic and tax policies, 13% to regulation of civil society and
4% to partisan political issues. The origin of the contested law was predominantly state
governments, with 62% of the cases, the Federal Government, with 26%, and the Judiciary,
with 12% of the cases.
In the cross-tabulation of the origin and the outcome of the decision, it was found
that there is a tendency for a negative outcome (rejected — text was considered to be
constitutional) when the Federal Government is the origin of the law. This tendency is
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reversed when state governments and the Judiciary are the origin of the contested law.
State governments petitioned 28% of the cases, the Prosecutor-General 25%, political
parties 23%, associations 18% and OAB/AMB 6%.
Comparing petitioner with thematic type, it was found that state governments, the
Prosecutor-General, political parties and OAB/AMB have predominantly challenged laws
referent to the public administration. Associations tend to contest issues associated with
economic and tax policies.
The outcomes of cases petitioned by the Prosecutor-General, state governments
and OAB/AMB were predominantly positive (73%, 63% and 56%, respectively), while
those petitioned by associations and political parties were negative (71% and 68%,
respectively).
Table 2 Logistic regression considering the decision of the merit (approved) as the target variable
B
Odds [Exp(B)]
Justice is a career judge
-0,538
.584**
Orientation: restrictive
0,027
1,027
President who appointed: military
0,818
2,266
Tenure in the Court
-0,061
0,941
Vote of rapporteur
8,489
4859.797***
Temporary injunction
2,895
18.083***
Petitioner: Prosecutor-General
0,151
1,163
Petitioner: political party
-1,319
.267***
Petitioner: associations
-0,435
0,647
Petitioner: OAB/AMB
-0,126
0,882
Origin of law: Federal Government
-0,775
.461**
Origin of law: Judiciary
1,193
3.298**
Object: partisan political issue
-0,874
0,417
Object: economy and tax
-1,633
.195***
Object: civil society
-0,279
0,756
Administration: Sarney
-1,341
0,262
Administration: Collor
0,529
1,696
Administration: Itamar
-0,386
0,68
Administration: Fernando Henrique (2nd
admin.)
-2,86
.057***
Administration: Lula
-1,286
0,276
Constant
-2,89
,056***
*Significant at .05 **Significant at .01 ***Significant at .000
Nagelkerke R2: 0.898
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Logistic regression was used (Table 2) to determine the most influential elements
in the outcomes of the decisions. One is interested in the odds of a case having a positive
outcome. It is assumed that when the Supreme Court declares a law or act unconstitutional,
it is acting in an activist direction. This is because the court is taking an active role in
the exercise of constitutional control of the legislation. In contrast, a restrictive direction
is associated with the traditional view of juiz funcionário (the judge as a bureaucrat),
restrictive in the exercise of constitutional control of laws.
Justices who used to be judges make the decision outcome less likely to be positive
when compared to justices who were prosecutors or politicians. This conclusion gives
support to the idea that justices who used to be judges tend to be more restrictive and
conservative than justices with a different career background.
The vote of the rapporteur is by far the most influencing variable in the result of the
decision. The fact that the rapporteur votes for the unconstitutionality of a law makes it
more likely that the decision outcome will be positive. Additionally, it is more likely that
the outcome will be positive if the suit had a temporary injunction approved.
Looking to the external variables, one sees that the petitioner influences the result
of a suit: when compared to state governments, the petitioner being a political party, the
outcome is less likely to be positive. However, as stated by Taylor (2004), political parties
are less likely to win a case because they use the court not only for legal purposes but also
as a way of showing their disagreement with public policies, even when they know that the
odds of winning are low (Taylor 2004, 170).
When the object of the law, compared to public administration, is economic and tax
policies, it is less likely that the decision outcome will be positive.
The origin of the law or contested diploma shows that, compared to state governments,
when the origin is the Federal Government, it is less likely that the outcome will be positive,
suggesting that the court is acting with precaution when it comes to review federal policies.
One also has to consider that 43.6% of the suits that question federal laws were petitioned
by political parties.
If the origin is the Judiciary, it is more likely that the result will be positive. This
indicates that the Court is reviewing the decisions taken by lower courts, exercising its role
as the higher instance of the judicial branch of government.
Considering the government during which the suit was decided, one sees that in
comparison with the first Fernando Henrique administration, the suits decided in the second
administration were less likely to have a positive outcome. In the first Fernando Henrique
administration, political parties were petitioners in 14% of the suits, and in the second
administration, 30% — which can help one understand this tendency of more negative
outcomes in the second administration compared with the first.
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These results indicate that internal factors (vote of the rapporteur, temporary
injunction and justice’s career) exert significant weight on the outcome of decisions. This
does not mean that external factors have no significance. The political environment is indeed
a profound factor, as we have seen from the significance of the variables “Administration” and
“petitioner”. Nevertheless, in order to understand these external factors better, it is necessary
to cast aside other methodologies of analysis, and focus instead on how justices’ arguments
are organized. Firstly, though, we will look at the relationships between justices, and consider
if these relationships are affected by whether or not they were judges previously.
Justices: Judge versus Non-Judge
Starting with the finding that the rapporteur’s vote has the greatest impact on case
outcomes, I observed the degree to which other justices conform to the rapporteur’s vote,
using a similarity measurement. The similarity index calculated showed that justices agreed
with the rapporteur more than 90% of the time. The justices that agreed less than 90% of
the time were Francisco Rezek (89%), Sepúlveda Pertence (86%); Marco Aurélio (83%)
and Paulo Brossard (74%). Justices Aldir G. Passarinho, Carlos Madeira and Célio Borja
did not participate in a significant number of judgments and were thus excluded from the
analysis.
In addition to calculating the percentage of times each justice voted with the
rapporteur, I established a similarity percentage among the justices to group them by their
voting tendencies in the 300 cases. To this end, the following similarity measurement was
created:
, where a = number of times in which 2 of the 18 justices both
voted for the unconstitutionality of the law in the case; d = number of times in which 2 of
the 18 justices both voted for the constitutionality of the law in the case; b = number of
times in which, of 2 of the 18 justices, one voted for the unconstitutionality and the other
for the constitutionality of the law in the case, c = number of times in which, of 2 of the 18
justices, one voted for the constitutionality and the other for the unconstitutionality of the
law in the case. Using this measurement, three exclusive groups of justices were created.
Those justices that rank above 0.95 compose the first group. This group is the
most explicit and has high cohesion. It is composed of four justices who were not judges
previously (Moreira Alves, Maurício Corrêa, Nélson Jobim and Gilmar Mendes) and two
who were (Sydney Sanches and Ellen Gracie). The justices’ orientation was deduced in
a previous study, based on articles published in the main newspapers of the state of São
Paulo (Folha de São Paulo and O Estado de São Paulo). However, it is important to take
into account the fact that these orientations attributed to the justices came from editorials,
journalists and jurists who wrote in the newspapers Folha de São Paulo and O Estado de
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São Paulo during the period from 1979 to 2002. It is possible that the descriptions have
changed over the time.
According to these newspapers, Moreira Alves is a restrictive and technical justice who
usually votes alongside the government. Nelson Jobim is another identified as one who gives
support to the government; he is activist and technical. Maurício Corrêa is restrictive and
technical. Sydney Sanches is restrictive and technical. In the previous study, no information
was gathered on Ellen Gracie and Gilmar Mendes, but later articles in these newspapers
tend to classify both as restrictive and technical.
Table 3 Matrix of similarity, corresponding to agreement rate among the Justices 2 x 2
1
2
4
5
6
9
10
2
4
5
6
9
10
11
12
13
14
15
16
17
18
0.91
0.90
0.98
0.93
0.89
0.89
0.96
0.88
0.81
0.92
0.99
0.99
0.98
1.0
0.88
0.94
0.94
0.87
0.87
0.93
0.91
0.84
0.91
0.94
0.90
0.95
*
0.89
0.87
0.71
0.89
0.92
0.92
0.81
0.87
0.94
*
*
*
0.96
0.96
0.89
0.94
0.82
0.83
0.93
0.98
0.98
0.97
1.0
0.87
0.88
0.90
0.89
0.80
0.91
0.96
1.0
*
*
0.69
0.81
0.66
0.67
0.84
*
*
*
*
0.87
0.91
0.86
0.86
0.92
0.92
0.92
0.91
0.91
0.83
0.89
0.98
0.98
0.98
1.0
0.84
0.88
0.95
0.95
0.97
0.98
0.82
0.86
0.83
0.93
0.92
0.94
0.99
0.98
1.0
0.99
0.98
1.0
0.98
1.0
11
12
13
14
15
16
1.0
17
* The justices were codified following the order of seniority: Moreira Alves (1); Néri da Silveira (2); Aldir G. Passarinho
(3); Francisco Rezek (4); Sydney Sanches (5); Octávio Gallotti (6); Carlos Madeira (7); Célio Borja (8); Paulo Brossard
(9); Sepúlveda Pertence (10); Celso de Mello (11); Carlos Velloso (12); Marco Aurélio (13); Ilmar Galvão (14); Maurício
Corrêa (15); Nélson Jobim (16); Ellen Gracie (17); and Gilmar Mendes (18).
This group is explicit, but not too rigid, as some combinations could be possible but
are not in the grouping, such as high rates of agreement found between Justices Moreira
Alves and Celso de Mello, Sydney Sanches and Octavio Gallotti and Sydney Sanches and
Paulo Brossard. In general, it may be said that this grouping is made up of the justices with
the most restrictive and technical profiles on the Court.
The other two groupings are not as explicit as the first, as their categorization was
less precise. The second group is made up of three former judges (Néri da Silveira, Octávio
Gallotti and Ilmar Galvão) and one justice who was not a judge previously (Celso de Mello).
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Justices Néri da Silveira and Octávio Gallotti are considered restrictive and technical. Ilmar
Galvão is restrictive and political. Celso de Mello is activist and technical. This group can
be considered a little less restrictive than the first, but technical nonetheless.
Group 1
Ellen
Gracie
Moreira
Alves
Maurício
Corrêa
High
cohesion
Nélson
Jobim
Group 3
Gilmar
Mendes
Francisco
Rezek
Sydney
Sanches
Carlos
Velloso
Low
cohesion
Group 2
Néri da
Silveira
Octávio
Gallotti
Medium
cohesion
Ilmar
Galvão
Paulo
Brossard
Networks
Sepúlveda
Pertence
Marco
Aurélio
Celso de
Mello
Figure 1 Group formation in the decision-making process of ADINs.
The third group is made up of three justices who were not judges previously (Francisco
Rezek, Sepúlveda Pertence and Paulo Brossard) and two who were (Carlos Velloso and
Marco Aurélio). We can consider this group as being composed of the most polemical,
activist and political justices.
Justices Francisco Rezek, Sepúlveda Pertence and Carlos Velloso are classified as
activist and political. Paulo Brossard is activist and is considered a justice who acts in
opposition to the government. Marco Aurélio, the most polemical of the justices, is activist
with a performance classified as independent and political.
The fact that judges are not neutral agents, that their values influence their
performance, is easily acknowledged. It even appears in the debates justices have during
judgments. One example is ADIN 171, where Justice Francisco Rezek states: “The analysis
of this problem, with all of its possible technicalities, essentially has to do with our own
ideological stances regarding the substantial theme” (ADIN 171, 1993, 30).
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Argument Analysis of the Justices in ADINs
The high number of ADINs with unanimous decisions shows that, despite the
differences in justices’ career paths and consequently in their orientation and ideological
positioning, in their practical activities they seek to reach consensus. (This can justify why
ideology was not significant in our logistic regression model.) This becomes evident when
some justices vote alongside the majority in order to maintain decision unanimity, yet
they acknowledge their own contrary points of view. Justices’ attempt to seek consensus is
justified by the need to create uniformity in the Brazilian Supreme Court’s interpretation of
the law. This finding emphasises our argument that regardless of their political orientation,
the ideology of professionalism is strong and prevails in the orientation of justices’ behaviour.
The high rates of unanimous decisions can also be explained by the fact that Brazil’s
Supreme Court does not have discretion in the selection of the cases it is going to judge.
Often, the court must decide cases concerning “technical” issues and the application of
unequivocal commands of the Law, where the margin for interpretation or consideration
of extralegal factors is reduced.7
After identifying this tendency, I sought the arguments on which the tendency is
erected, in order to perceive the motivations of the justices: guaranteeing judicial consistency
and security (acting as “guardians of the Constitution” — a more technical and professional
performance), or interpreting constitutional rules and principles to accommodate current
government policies (a more political performance).
Of the sample cases, 6% were clearly based on political arguments, and of these,
only two resulted in unanimous decisions. Thus, the outcomes of the Supreme Court are
preponderantly built on technical arguments. This shows the importance of professionalism
in court performance. As Halliday (1999b) states, to transmute technical knowledge
(expertise) into moral authority, it is necessary that ideology has some uniformity and
impartiality in argumentation; when justices are politicalized, this is undermined.
Despite not basing its decisions primarily on political interests, Brazil’s Supreme
Court does not deprive itself of the role granted by the Constitution of being the arbitrator
of political issues:
Contrary to what has occurred in the United States of America, where the
Supreme Court hesitated to judge cases of a political nature, excluding the political
from judicial control, in Brazil, the Supreme Court has asserted its competency to
judge such matters. (Moreira Alves, ADIN 830, 1993, 15).
Although only 6% of cases resulted in politically oriented decisions, many justices
did vote politically yet remained in the minority, thus not affecting the outcome.
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Economic or governmental interests (which would denote politicalization of justice)
do not generally orient the political motivations behind these justices’ votes. Rather,
these motivations lie in a search to amplify the Supreme Court’s scope, allowing for
more encompassing interpretations and more efficient constitutional norms (expressing a
judicialization of politics).8 The justices who pronounced most votes considered political
were Marco Aurélio, Paulo Brossard, Carlos Velloso, Sepúlveda Pertence and Maurício
Corrêa. Aside from Corrêa, all are considered activist, and the first four are in the third
group, characterized as the most activist and liberal in orientation in the Court.
Researchers who have studied the Supreme Court’s decisions tend to focus on cases
that are widely known. My objective is different, hence the use of a random sample to study
the corpus of decisions as a whole.
The most frequent argument used in the Court is related to the defence and
maintenance of federalism and the separation of the branches of government (34% of the
cases were decided based on this argument). This shows that one of the most important
roles of the Court is the ability to solve disputes between the branches of government and to
limit suits between state and federal laws. Thus, Brazil’s Supreme Court plays an important
role in supporting political stability.
An illustrative case is ADIN 234, petitioned by the governor of the state of Rio de
Janeiro against a decision of the state Legislative Assembly. The Assembly determined
that public corporations with shares on the stock market could not be restructured or
privatized without legislative authorization. This case was unanimously decided, and the
law was considered unconstitutional. In this same case, it also becomes evident that the
justices are concerned with their image in the media. Justice Marco Aurélio reminds us of
this, saying that if the Court judged the case invalid, the media would broadcast that the
Supreme Court is against privatization.
All the justices share this concern with the Court’s image. In the voting of ADIN
830, Justice Moreira Alves defended the court against criticism in the media. This case was
petitioned by two political parties, PSB (Brazilian Socialist Party) and PDT (Democratic
Labour Party), to challenge the decision of the National Congress9 to bring forward the
referendum that would decide the form and system of the Brazilian Government. Justice
Moreira Alves prefaced his vote by stating:
I would like to briefly mention, considering the harmful campaign that has been
launched against this Court, that the Court is in agreement with the legal procedures; the
decision’s delay is due to the tardiness of the interested parties in petitioning the ADIN
[…]. I hope that the media divulges these facts, as they did with the unfounded criticisms
of this Court (Moreira Alves, ADIN 830, 1993, 14).
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The argument that is most frequent in routine decisions of the Court (often unanimous)
is the one related to the juridical impossibility of petition (28%). It is especially prevalent
when an accusation relies on a law or decree that has already been revoked, or has already
been judged in another ADIN. Impossibility is also granted when it deals with an already
re-edited Medida Provisória (an Executive provisional act, which goes immediately into
force, but must be further approved by the Brazilian Congress). In addition, it is invoked
when the Supreme Court does not recognize the right of the postulant to sue by means of
an ADIN (petitioner is not recognized as one of the capable authorities).
The protection of rights is supposed to be the primary function of judicial review, but
in Brazil’s Supreme Court, it is a secondary one. This is because the questions that arrive at
the Court are mainly referent to federalism, the separation of powers and policy-supporting
issues.10 Arguments that refer to social and political fundamental rights are responsible for
only 4% of the grounding of the decisions. In ADIN 1459, the political party PT (Workers’
Party) questioned the constitutionality of an electoral rescission law, which states that in
cases of political ineligibility that arise after a candidate has been elected, the candidate
is not allowed to act in his/her elected position until a judgment has been passed. Justice
Sydney Sanches stated that this case involved frontal contradictions, not only to the literal
disposition of the text of the Constitution, but to the spirit of the Constitution, as it seeks
to safeguard the legitimacy of elections and, above all, the ethical sense of the democratic
base of the regime” (ADIN 1459, 1999, 12-15).
One often finds arguments that relate to limits to and possibilities for Supreme Court
action. Most of these occurrences deal with acts with concrete effects rather than abstract
effects, and thus the Supreme Court is not able to judge. In other cases, the petitioner
questions only one aspect of the law, which would require the Court to act as a legislator,
which is impossible. In 12% of ADINs, the Supreme Court did not approve the cases based
on the argument that it was beyond its competence to judge them.
Additionally, there are times when the discussion of limitations to the Supreme Court
arises in which this is not a central point, as in ADIN 83. The governor of the state of Minas
Gerais petitioned against a state law regulating government employees’ wages. The intent here
is not to argue this case, but rather analyse the discussion that occurred between Justices Paulo
Brossard and Sepúlveda Pertence regarding the limitation to the Supreme Court’s action.
Justice Paulo Brossard questioned if the Supreme Court should act restrictively,
according to what was put in the initial petition, or if it should assume the freedom to judge
the proposed issue in all its plenitude.
Justice Sepúlveda Pertence took the position that the Constitution gives the Judiciary
exceptional power that is both juridical and political, but it can only exercise this power when
others bring cases - i.e. the Judiciary cannot initiate a case (Pertence, ADIN 83, 1991, 35-37).
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Despite the fact that both justices are more activist than most of their peers (they are
members of our third group), and that both define less rigidly the limits of the Supreme
Court, their differing positions indicate that career paths influence values and attitudes.
While Paulo Brossard defends a ample performance, Sepúlveda Pertence defends a
more limited one. Neither was a judge previously. Paulo Brossard came from politics (he
was a congressman, senator and minister of justice) and Sepúlveda Pertence came from a
career in Law (he was a lawyer and prosecutor-general).
It may be deduced that justices that came directly from politics to the Court more
readily support the Supreme Court’s role in addressing political questions, while those who
came from legal careers are more restrained in their acceptance of this role.
In Brazilian judicial review, when the court identifies a lack of laws or regulations,
there is the possibility of contacting the branch responsible and giving it a 30-day period
to adopt the necessary measures. While the Supreme Court does take this action, it is
unable to provide legislation, and is thus limited in its ability to influence the lawmaking.
This kind of case is known as ADIN by omission, and 4% of the decisions were based in
this argument.
Of the remaining arguments, 10% referred to the impossibility of admission into a
civil service career without previous approval in the civil service entrance-examination and
8% were referent to the rejection of the case (corresponding to a negative outcome) due to
lack of consistent reasoning by the petitioner.
Analysing the arguments used by the justices in ADINs, the conclusion is that Supreme
Court justices play an important role in the politics of the country and, because of this,
are concerned with the maintenance of their image of authority and recognize the need to
be distinguished from politicians. Because they are concerned with the tribunal’s image,
they try to maintain a certain level of interpretation uniformity and build consensus, which
reinforces the affirmation that the judges do not solely make decisions based on their own
policy preferences, but have some constraints to their action. I conclude following Epstein
and Knight (1998): in order to maintain the legitimacy of their decisions, justices need
to balance their preferences with the preferences of their peers (institutional constraint),
the other branches of government (political constraints) and society and public opinion
(social constraints).
“Political Principles” versus “Political Policies”
Vilhena Vieira (2002) affirms that three criteria should characterize the judicial
decision process: 1) normative observation; 2) obedience to the due process of law; and 3)
maintenance of judge’s impartiality (Vilhena Vieira 2002, 229). Like Dworkin, he believes
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that a court must decide cases by conforming to ethics that are based on a shared sense of
morality rather than ethics that are determined by results. However, when Vilhena Vieira
analysed the Supreme Court’s performance, he detected a certain duality in the processes of
decision-making. Hence, according to him, there is a slight polarization within the Court,
separating liberal and conservative justices. The justices who base their decisions solely on
the text of the Constitution tend to be conservative, while those who take into account the
economic, social and political repercussions of their decisions tend to be liberal.
From our findings, it is possible to assume that among the justices, former judges have
a more restrictive and conservative discourse than the others. Looking at the data analysed,
one can infer that there is an association between a justice’s career and the decisions he/she
makes. Thus, when justices are former judges, they are more likely to vote in strict accordance
with the text of the Constitution, evincing the normative principle. Their resulting restrictive
decisions indicate a more technical-juridical performance by the Court.
The analysis of the ADINs and of the justices’ votes proves that the relationship
between career and resultant decision is not entirely rigid. Although the justices who
used to be judges are usually most restrictive, this is not always the case. When the cases
with which the justices deal address political questions, I observed that, indeed, former
judges, as well as justices from other legal careers, tend to feel that the matters are outside
Court discretion. When, on the other hand, the cases addressed are less controversial and
considered technical, the justices tend towards consensus, in an attempt to affirm the
importance of the Supreme Court as a powerful institution of the State.
One must remember that justices tend to vote according to their habitus, which is
constructed not only by their career path but also by other factors (Bourdieu 1990). Thus,
it is necessary to consider that justices tend to vote as a team with those who share their
values, postures and opinions.
ADINs 252 and 384, judged collectively, are good examples. The first case was
proposed by the Prosecutor-General of the Republic and the second one by ANDA (National
Association for the Diffusion of Fertilizers and Agricultural Correctives). Both challenged
the governor and legislature of the state of Paraná regarding the law that mandates the State
Agriculture Department to approve the production, distribution and commercialization
of fertilizers. The petitioners alleged that the jurisdiction to impose such a law belongs
to the Federal rather than the State Government. Although the justices believe that the
Court must maintain uniformity in interpretation to safeguard judicial security and avoid
the potential for numerous trials that challenge the same issues repeatedly, the justices’
degree of conservatism separates them. The cases had a negative outcome, with Justices
Sydney Sanches, Octavio Gallotti, Ilmar Galvão, Maurício Corrêa and Nélson Jobim voting
in agreement with rapporteur Moreira Alves, who claimed that the cases proposed were
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not validly ADINs, and thus outside the Court’s discretion. In order to fully analyse the
cases, the Court would need to appraise both infra-constitutional and constitutional laws,
and it is unable to do this.
The dissident justices were Sepúlveda Pertence, Carlos Velloso, Néri da Silveira and
Marco Aurélio, who defended the possibility of a broader performance by the Court in an
attempt to avoid numerous possible trials that could arise, challenging the same subject.
In this case, the debate that surfaced between Moreira Alves and Carlos Velloso,
questioning the appropriateness of the Court deciding certain issues, makes clear the
opposing attitudes of the justices. While Moreira Alves’s view is technical and restrictive,
holding that it is impossible for the Court to decide these cases, Carlos Velloso’s view is
practical; he states that by not judging these cases, the court would be abdicating its primary
role, assigned by the Constitution, of keeping in check the other branches of government.
“The Court must not decide this issue definitively” (Carlos Velloso 1997, 25).
In Carlos Velloso’s statement that the decision must not be definitive, and thus, that
it must not establish a precedent, he is cautious, believing that the Court needs to be able
to change its position in future cases. His attitude reveals an ideology that widens the
Court’s political role.
Justice Marco Aurélio’s stance is even more practical, claiming that “pragmatism is
advisable, as much as possible, to resolve this problem in an abstract, linear, ample form, not
waiting for the cases that, in the diffuse control of constitutionality, may appear as a result
of controversy regarding the constitutional jurisdiction of state versus federal governments”
(Marco Aurélio 1997, 14-15).
Marco Aurélio is the justice whose opinions most distance him from the others, as
he, more often than not, takes into account the political consequences of court decisions.
Yet it is important to emphasise that although more “politicized” than the average justices
on the Court, the fact that he is a former judge becomes evident in some of the positions
he takes. An example is his vote in the judgment of ADIN 830, posed by the political
parties PSB (Brazilian Socialist Party) and PDT (Democratic Labour Party), countering
the decision of the National Congress to bring forward the referendum to decide the form
and system of government in Brazil. This referendum was established by the Constituent
Assembly in 1987. In the judgment of this ADIN, considered unfounded (negative
outcome) by the majority, Justice Celso de Mello, reapplying the ruling of the ProsecutorGeneral, stated that “the proposals that compose the ADCT (Act of Constitutional
Transitory Dispositions) are constitutional in nature and, as the permanent text, can be
amended by the very processes established for them”. He adds that “the rigidity of the
constitutional precepts does not perpetuate the Constitutions; the juridical documents
are essentially mutable, and need to take into account changing political, economic,
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cultural and ethical demands that arise in our complex social world” (Celso de Mello,
ADIN 830, 1992, 56-60).
Marco Aurélio vehemently opposed this viewpoint, claiming that such an alteration
was almost an act of tyranny. Although the media considers Marco Aurelio to be the most
political justice because of his stance in this and other cases, the analysis shows that he is
more likely to accept and defend “political” arguments that affect the country as a whole
than those that are a part of partisan politics or government interests; this reveals that he
is in “harmony” with professional values.
In ADIN 1103, the CNI (National Confederation of Industry) challenged the federal
law altering the social security contribution made by employers in industries of agro-industrial
production. In his vote, Justice Marco Aurélio stated that the financial interests of the
government should not be placed above judicial security and other constitutional issues.
It is important, in this analysis, to note the fact that the Supreme Court deliberates
publicly. Because of this, it is possible to see clearly the divergent ideologies of the justices
as they decide cases. Those most involved in heated debates were Moreira Alves, Carlos
Velloso, Sepulveda Pertence and Marco Aurélio.
These debates are frequently manifested in cases where Justices purport, both subtly
and overtly, competing hierarchies of their technical and social characteristics. One such
example is ADIN 613, dealing with the conversion of the FGTS (employees’ social security).
In this ADIN, Moreira Alves counters Carlos Velloso with a tone of sagacity and mild
irony. As dean of the Court, Moreira Alves is the most experienced of the justices. Since
the length of time a justice has served on the Court is one of the most valued and respected
characteristics, Moreira Alves’s assertions carry a lot of weight.
The 1994 elections led a large number of cases to be brought to the Supreme Court,
including ADINs 956, 958 and 966. The first deals with the regulation of free electoral
advertising. The petitioner was PT (Workers’ Party), challenging the President of the
Republic and the National Congress. The claim was the by forbidding the use of outdoor
recordings, settings or artifices, the law was an affront to the principle of free speech. The
case was judged unfounded (negative outcome), by the majority, while Justices Marco
Aurélio and Celso de Mello agreed with the petitioner that the law illegally restricted their
freedom of expression.
ADIN 958, petitioned by political party PRONA (Party for the Reconstruction
of National Order), and ADIN 966, petitioned by political party PSC (Social Christian
Party), were judged in unison. They challenged the same law that required parties wishing
to nominate candidates to run for president or state governor to have received at least
5% of the votes in the previous election. A majority of justices affirmed that such a law
is unconstitutional. Justice Marco Aurélio stated that the law is an affront to democratic
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values and citizenship, preventing the representation of minorities in political elections.
In the Court minority, Justices Francisco Rezek, Carlos Velloso and Sepúlveda Pertence
considered the law constitutional, and asserted that requiring a percentage of votes in the
previous election ensures that parties are representative of the nation’s people and will.
A final example of the ways in which justices construct their arguments is ADIN
2306. This case was petitioned by the Federal Council of the Brazilian Bar Association
(OAB) challenging the law (promulgated by the National Congress) that waives fines for
failure to vote in elections — since, in Brazil, voting is obligatory. The case was judged
unfounded (negative outcome) by the majority of the Court (Justices Moreira Alves,
Celso de Mello, Carlos Velloso, Ilmar Galvão, Maurício Corrêa, Nélson Jobim and Ellen
Gracie), defeating Justices Sepúlveda Pertence, Sydney Sanches, Néri da Silveira and
Marco Aurélio. The debate between Justices Néri da Silveira and Moreira Alves further
illustrates the opposition between technical arguments and arguments that can be
considered political:
SILVEIRA: Justice, the things that are not in accordance with the principles of the
Constitution do not deserve protection.
ALVES: What are these principles?
SILVEIRA: Does your Excellency understand that democracy is not the basic
principle of the Constitution?
ALVES: Incidentally, does democracy rely on the obligation to vote? Why do other
democratic countries not have obligatory voting? . . .
SILVEIRA: (The problem of the law at hand) lies in securing the principles of the
Constitution . . . It seems to me that this case will not be resolved by technicalities
that determine whether or not it is constitutional . . .
ALVES: If we are a court that has to judge juridically, it is obvious that we must
follow juridical principles to verify if the law is or is not constitutional. (ADIN
2303, 2002, 21- 28).
In all that we have been discussing here, it is possible to see confrontation between
technical, conservative arguments and political, liberal arguments (noting that there are
varied reasons for arguments being political: these reasons can be economic, governmental
or referent to the political powers of the Supreme Court).
The data put forth makes it possible to infer that jurisprudence, professionalism
and politics are truly interrelated in the performance of Brazil’s Supreme Court. Values of
autonomy, justice and judicial security permeate the justices’ arguments. Despite behavioural
differences due to diversity in training, varied career paths and conflicting values, justices
defend a uniform representation of the Supreme Court and its jurisprudence in an attempt
to edify and consolidate the Court’s authority and legitimacy.
Thus, it is possible to conclude that the decisions of the Supreme Court are
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influenced by judicial formalism, by the principles of autonomy and justice, and by the
justices’ creativity and discretion.
Conclusion
I have developed a model to analyse the judicial behaviour of Brazil’s Supreme Court
justices to determine what elements are most influential in their decision-making process.
My model combines elements of sociology of professions, jurisprudence and three different
approaches of judicial politics, the legal, attitudinal and strategic. So as to test the model,
I analysed 300 ADIN cases decided by the Court during the 1988-2003 period.
By means of logistic regression, I determined the internal factors of ideology and
professionalism to be the most influential. With these findings, I then focused on the
interactions between justices on a case-by-case basis. I found that, despite the tendency
of justices to vote alongside other justices with whom they share similar ideological
dispositions, professionalism prevails in uniting justices in a common decision. The fact
that more than 80% of the decisions were unanimous further supports professionalism as
a key element in understanding justices’ behaviour.
In order to get a closer look at the motivations behind these decisions, I examined
the arguments put forward by justices. I found that most decisions were based on technical
arguments that guarantee judicial consistency and security — indicating a professional
influence. However, when justices’ arguments were politically based, most of the time they
were found to support a broader performance of the Court in the political arena, instead of
the typical view of supporting government policies. This further supports our premise that
professionalism is the most important factor in determining Court decisions.
Understanding the factors that influence Supreme Court decisions is of central
importance because of the powerful political influence it exerts. It is up to the Supreme Court
to determine if the methods of the political system are in accordance with constitutional
rules. Looking at the cases decided by the court, we see that it played an important role in
the resolution of conflicts between the branches of government and between government
and society.
Although justices have considerable political power and strength, because they
are appointed rather than elected, this power is not enough to secure their positions —
especially when they have to face legislative majorities when declaring laws and acts
unconstitutional. The fact that justices are not elected both strengthens and weakens the
Supreme Court’s power. Justices are immune to partisan interests because they are not
concerned with elections, yet when they decide political questions, they are easily labelled
as biased because they cannot claim public support. Ultimately, the Supreme Court must
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legitimate itself through another source of authority. Thus, it incorporates professional
values as the means to this ends. Munitioned with this authority, Supreme Court justices
are able to provide a politically stable atmosphere that helps with economic and social
growth, as well as offering an alternative arena through which political and social actors
may exercise democratic control over the actions of government.
The results of this study show that my approach, which seeks to integrate different
perspectives on judicial behaviour, has succeeded, confirming that these perspectives are
not contradictory. The results also indicate that, if made to cohere, the legal, attitudinal,
strategic and institutional approaches, including professionalism, significantly account for
the variation in the decision-making behaviour of Brazil’s Supreme Court justices.
In conclusion, it may be said that the voting behaviour of justices, as well as the final
decision of the court, is highly influenced by institutional context and professionalism.
However, legal and political factors also play a role in these results. Attitudinal variables
have a lesser impact on behaviour.
This investigation of Brazil’s Supreme Court reveals that professionalism and politics
are interrelated factors in influencing Court decisions. The fact that professionalism plays an
imperative role in judicial decision-making is positive, for it favours justices’ independence
from political and governmental interests. This provides credibility and legitimacy to the Court,
which favours the rule of law and therefore strengthens and supports democracy. There are
two other factors that cannot be ignored when talking about the importance of professionalism
in the Brazilian Supreme Court: Brazil’s legal tradition (Civil Law, in contrast with Common
Law) and the Court’s need to build its legitimacy in the new democracy.
Submitted in October, 2008.
Notes:
1
The Brazilian judicial review system is considered hybrid because it combines elements of the
decentralized (diffuse) and centralized (concentrated) models. The diffuse system is similar to
the American legal system, in which any private party can bring constitutional issues to be tried
by ordinary courts. On the other hand, in the Brazilian system particular authorities are able
to question constitutional issues directly to a constitutional court, a practice characteristic of
concentrated judicial review systems such as many European legal systems. The Supreme Court
is the highest tribunal for decentralized review and is the only court for centralized review. It is
composed of eleven justices chosen among citizens over thirty-five years and under sixty-five
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years of age, with reputable legal knowledge and unblemished reputations. The President of the
Republic appoints the justices after the absolute majority of the Senate approves their selection.
The court has administrative and financial autonomy and the justices remain in the post until
they are 70 years old. The Supreme Court is primarily concerned with exercising judicial review,
judging the constitutionality of laws or regulations in abstracto (by means of ADINs — direct
unconstitutionality suits — of federal or state laws or normative acts). Authorities allowed to
bring constitutional questions to the court include: the President of the Republic; the Executive
Committee of the Federal Senate; the Executive Committee of the Chamber of Deputies; the
Executive Committee of state legislative assemblies; state governors; the Federal Council of
the Brazilian Bar Association; political parties represented in the National Congress; and
confederative unions or nationwide professional bodies. For more details, see: Boechat Rodrigues
1977; Arantes 1997; and Macaulay 2003.
2
Since the whole universe could be identified, I used a simple random sample, ordering all
the decisions according to their specific numbers in the tribunal, and using a table of random
numbers. Three hundred cases were randomly selected. URL: http://www.stf.jus.br/portal/cms/
verTexto.asp?servico=estatistica&pagina=adi
3
The role of the rapporteur is to coordinate and lead the case. He/she writes the briefs (the
report) that reflect his/her opinion in the case. This report is made available to all the justices
before the trial. The rapporteur is also the first to vote.
4
I tried to use as a predictor the president that nominated the justice, but when I tested the
correlations the only variance noted related to the nature of the regime, military and non-military
— so I opted to use it in the model.
5
Justice’s orientation refers to the postures assumed by justices concerning the extension of the
Supreme Court powers: an activist supports a more ample performance of the court (oriented
to a broad and active role in political issues), while a restrictive supports a more restricted
attitude, defending a narrower role in political issues.
6
Note that when the variables were not binomial, they were transformed into dummy variables
— suits can be approved, rejected or partially approved. When a decision was partially approved,
it was considered approved.
7
This is the case for many constitutional courts in Europe, such as the Portuguese (see Magalhães
and Araújo 1998).
8
See Tate and Vallinder (1995); Werneck Vianna (1999) and Shapiro and Sweet (2002).
9
The National Congress consists of the Federal Senate and the Chamber of Deputies.
10 According to Sato (2003), in Brazil, the diffused system carries out the function of rights
protection more effectively in comparison with the centralized system.
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Arantes, Rogério Bastos. 1997. Judiciário e política no Brasil. São Paulo: Ed. Sumaré/IDESP.
______, and Fábio Kerche. 1999. Judiciário e democracia no Brasil. Novos Estudos Cebrap, no.
54:27-41.
Bonelli, Maria da Glória. 2002. Profissionalismo e política no mundo do Direito. São Paulo:
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Bourdieu, Pierre. 1990. Poder simbólico. São Paulo: Difel.
Clayton, Cornell W., and Gillman, Howard. 1999. Supreme Court decision making: New
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Domingo, Pilar, and Rachel Siede. 2001. Rule of Law in Latin America: The international promotion
of judicial reform. London: University of London.
Dworkin, Ronald. 2001. Uma questão de princípio. São Paulo: Martins Fontes.
Epstein, Lee, and Jack Knight. 1998. The choices justices make. Washington, DC: CQ
Press.
Feldman, Stephen M. 2005. The rule of law or the rule of politics? Harmonizing the internal and
external views of Supreme Court decision making. Law and Social Inquiry 30 (1): 89-135.
Freidson, Eliot. 2001. Professionalism – The third logic. Cambridge: Polity Press.
Garth, Bryant, and Yves Dezalay. 2002. The internationalization of Palace Wars - Lawyers,
economists, and the contest to transform Latin American States. Chicago: University of
Chicago Press.
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Inquiry 24 (4): 1013-1060.
Macaulay, Fiona. 2003. Democratization and the Judiciary: Competing reform agendas. In Brazil
since 1985: Politics, economy and society, ed. Maria D’Alva Kinzo and James Dunkerley,
84-104. London: Institute of Latin American Studies.
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II, III e IV. Rio de Janeiro: Civilização Brasileira.
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Cambridge: Cambridge University Press.
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Tate and Torbjörn Vallinder. New York: New York University Press.
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New York University Press.
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judicialization of policy reform in Brazil (1988-2002). Ph.D. diss., Georgetown University.
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A r ti C L E
Representation and Deliberation in Civil Society*
Federal University of Minas Gerais (UFMG), Brazil
This paper discusses the issue of political representation, by arguing the
necessity of re-envisioning it so as to consider non-electoral forms of representation.
It claims that civil society associations can be conceived of as representatives of a
series of discourses, voices, opinions, perspectives and ideas. Whilst this type of
representation lacks formal mechanisms of authorization and accountability, its
legitimacy may emerge from the effects of such associations and from their porosity
to several interactional loci. The paper suggests that associations that are open to
several discursive spheres are more prone to foster a discursive accountability, built
within a broad process in which discourses clash in several communicative contexts.
The idea of a deliberative system helps to understand the interconnections among
these interactional loci, as it points to the possibility of a dynamic between partiality
and generality, which is at the heart of political representation.
Keywords: Political representation; Associations; Civil society; Deliberative
democracy; Interactional loci.
Introduction
P
hilosophers and political scientists have been conceptualizing the idea of political
representation and its role in the constitution of legitimate governments for
centuries now. Adopting very different approaches, they have theorized about the ways
through which collectively valid decisions should be taken. From Hobbes to James Mill or
Madison, and including Rousseau, Burke and Condorcet, several canonical thinkers have
reflected upon the adequacy of representation, and the forms through which such practice
*I have discussed previous versions of this paper with John Dryzek, Leonardo Avritzer, Selen
Ayirtman, Bora Kanra, Simon Niemeyer, Melissa Lovell and Penelope Marshall. I am thankful to them
for their valuable comments. The paper has also benefited from a discussion in a work-in-progress
seminar at the Political Science Program of the Research School of Social Sciences at the Australian
National University. I am also indebted to Rousiley Maia and to the anonymous reviewer of BPSR
for their valuable contributions. Lastly, I am grateful to Fapemig and to Capes for their support.
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should (or should not) be implemented. Scholars concerned with the viability of democracy
in large and complex societies are particularly preoccupied with the issue, claiming that
representation is the only feasible way to exercise popular sovereignty in contemporary
polities. Some conceive of representation not as a defective substitute for direct democracy,
but rather as democracy in action, defending its advantages even in small communities.
In a very broad sense, the concept of representation denotes a form of political action
in which a person or group acts in the place of another or others with a certain kind of
authorization to do so. Representation is, by definition, a relation between represented
and representative(s), which can take a wide range of forms (Dryzek and Niemeyer 2007;
Castiglione and Warren 2005; Urbinati 2006; Rehfeld 2006; Avritzer 2007). As stated by
Pitkin, the idea of representation itself has changed a lot throughout history, in parallel
with the changes in institutions by which representative practices have been brought up
to date (Pitkin 2006, 21).
Nowadays, there is a certain consensus around the idea that a representative should
not defend only the interests of the faction that directly supports him or her. It is necessary
that s/he aims at the best for the whole polity. This idea has raised a series of new questions,
especially in times in which it seems more difficult to demarcate ‘political communities’.
On the level of macro-relations, the expansion of transnational interactions evince that the
consequences of States’ decisions (and their members’ actions) have impacts that go beyond
territorial borders (Giddens 1990; Dryzek and Niemeyer 2007; Castiglione and Warren 2005;
Rehfeld 2006; Runciman 2007; Avritzer 2007). At the level of internal relations, territorial
unity is constantly questioned by a plurality of cultural and social cleavages. There are, also,
doubts about the basic units to be represented, with minorities demanding the creation of
alternative mechanisms so that they may make themselves heard (Young 2000).
Hence, the necessity of thinking of non-electoral possibilities for the constitution of
representation becomes evident, as the whole idea of representation loses its territorial basis
(Urbinati 2005a). Even if we have become used to thinking of elections as the manner to
institutionalize relations of representation in contemporary democracies, such relations may
be redesigned and made more complex if other legitimizing procedures and accountability
mechanisms are adopted (Dryzek and Niemeyer 2007). This does not mean electoral
representation is dreadful and unnecessary. All I am defending is that representation and
democratic elections are not indissoluble. Like Michael Saward, I believe that
the idea that electoral institutions themselves, while indispensable to
contemporary democracy, by their very structure leave open the possibility for
non-elective representative claims that can call on criteria of democratic legitimacy
which in some ways echo but in important other ways are distinct from electoral
criteria (Saward 2009, 2-3).
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In order to understand this changing scenario, there have been several theoretical
attempts to re-conceive political representation in a broader sense. A very fruitful vein
of these attempts has called for the institutionalization of practices that would allow
people to have a say in the decisions that affect their lives, as defended by Habermas
(1996, 107). From this perspective, civil society associations play an important role.
They open opportunities for a wider range of individuals to be considered, as they may
enable marginalized citizens to gain visibility, influence and even decision capacity. Such
associations may promote the political inclusion of these subjects in public processes
of political discussion, enhancing not only the formation of a more consistent public
opinion, but also the participation of these individuals in the configuration of political
decisions. These collective actors frequently claim to represent interests, opinions and
ideas of individuals and groups that they consider to be under-represented. They vocalize
discourses, try to set the agenda around issues that concern marginalized groups and
demand participation in formal spheres of decision-making.
However, to think of these associations as political representatives also raises a set of
thorny questions. What transforms them into representatives if there are no formal mechanisms
of authorization? To whom should they be accountable? How can such accountability be
instituted? What grants the legitimacy and quality of this form of representation? In short,
could representatives be legitimate in the absence of clear mechanisms of authorization and
accountability?
This paper aims at reflecting on these questions, regarding the possibility of conceiving
of actors from civil society as political representatives. In order to do so, I will start by briefly
discussing the idea of representation and some of the contemporary proposals to reframe
it. The fertility of notions that broaden the focus from individuals will be defended. I will,
then, discuss the potential of civic associations to act as representatives of discourses and
perspectives. I argue that the formats of these associations, as well as their pragmatic effects,
are at the core of their evaluation. This is a first condition for considering associations as
democratic representatives.
Lastly, I will discuss the idea of deliberation in a diversity of interactional loci. 1
Understanding public deliberation as a macro-process that happens in several spheres of
communication, I defend that the porosity among these spheres is at the heart of broader types
of representation. A variety of interactive contexts is essential if an association is to foster a
dynamic between partiality and generality that is vital to political representation. I argue that
the idea of interactional loci (i.e. spheres of communicative interaction) is of central relevance
to the constitution of associations that dynamically renew their representativeness. Interactions
in a variety of discursive arenas help to make this collectivity (and its leaders) discursively
accountable, and thus more legitimate and more capable of exerting qualified representation.
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The openness of an association to several internal and external interactional loci is thus the
second condition suggested for considering it as a democratic political representative.
Representation as a Dynamic Concept: Expanding
the Focus Beyond both Elections and Individuals
Representation has shown itself to be a dynamic concept throughout history.
Its roots are in the Latin notion of repraesentare, which literally means make present
something that is actually absent (Runciman 2007). As discussed by Pitkin, the concept
was initially reserved for inanimate objects (Pitkin 2006). It did not mean acting for, or
on behalf of, others. It was only in the Middle Ages that the word started to be employed
in reference to human beings. But that was just the beginning of the elaboration of the
concept of political representation. Afterwards, the idea of agency had to be connected
to representation, and several debates have sought to define what this type of agency
actually meant. As pointed out by Pitkin (2006), the dichotomy delegate X trustee has
been a major issue focused both by political philosophy and practice. She argues that
representation can neither be seen as pure authorization (as Hobbes would defend), nor
as simple delegation.
Such an idea is widely accepted nowadays. Nadia Urbinati, for instance, starts by
criticizing both the notions of imperative mandate and complete autonomy, and by defining
political representation as a relationship in which both representatives and represented
must have their autonomy safeguarded (Urbinati 2005a, 2005b, 2006). Accepting this
proposition, however, does not solve all the problems posed by contemporary polities. And
Urbinati’s work goes on to raise other key issues that are central to the definition of what
representation can currently mean (Urbinati 2006). In so doing, she suggests that this
political practice cannot be conceived of in purely electoral terms.
Urbinati defines political representation as “a circular process (susceptible to
friction) between state institutions and social political practices” (Urbinati 2005b, 1).
Representation connects institutions and society, in a cyclical process in which both
representatives and represented are free to act, although being required to give reciprocal
justifications concerning the interests, opinions and ideas they defend. To represent is,
therefore, to be in a “relation of sympathetic similarity or communication with those
in the place of whom the representatives act in the legislature” (Urbinati 2005a, 211).
Representation, according to this approach, is a relationship that may be embodied in
several ways. Besides elections, there are many possibilities to engender links between
inputs and outputs in a political system. There are different ways to foster circularity
between state and society.
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From this perspective, popular sovereignty does not emerge only through electoral
authorization. The exercises of prospective accountability, political surveillance and of
influence through informal venues are also fundamental. In order to advance such a
perspective, Urbinati resorts to the Kantian notion of judgment. In her framework, citizens
should constantly evaluate the behaviour of representatives, thinking as if they were in
their place. In such dynamics, constituents are oriented by principles, opinions, values and
ideologies, with which representatives should establish dialogue. Sovereignty would emerge
from public processes of opinion formation. It depends on “the activation of a communicative
current between civil and political society” (Urbinati 2005b, 12-13).
Representation is a central piece of this communicative current. Urbinati’s proposal
of a connection between judgment and sovereignty is helpful as it allows one to notice
that several social spheres may be important for the construction of representation. There
are many ways to make the intricate net of representatives and represented more complex,
promoting transparency, public scrutiny and popular participation in the constitution of a
politically shared world.
There is a growing literature devoted to this possibility of turning democratic
representation into something more complex and diverse (Avritzer 2007; Abers and Keck
2006; Bang and Dyrberg 2000; Castiglione and Warren 2005; Dryzek and Niemeyer 2007;
Eckersley 2000; Gurza Lavalle et al. 2006; Keck 2004; Mansbridge 2003; Meier 2000;
Parkinson 2003; Saward 2009; Squires 2000; Young 2000). Some scholars have advocated
the necessity of representative procedures that are not centred on the representation of
individuals. Their proposals involve a shift in the basic political unit to be represented,
which would depend on, and concomitantly imply, other political mechanisms besides
elections. Urbinati herself points out that the selection of representatives is not simply a
choice of specific persons to represent particular individuals. It involves the expression of
support for ideas, values, beliefs and publicly manifested positions.
Jane Mansbridge also defends the importance of forms of representation that are not
characterized by electoral bonds (Mansbridge 2003). When proposing a political model
that combines different forms of representation, she argues that surrogate representation
also has its place. Usually exercised through informal ways, surrogate representation is
based on the advancement of opinions, interests and perspectives. Although Mansbridge
focuses specifically on the exercise of surrogate representation by elected representatives,
her idea could be extended to representatives who are not authorized through elections
(Saward 2009, 2).
When analyzing some challenges faced by contemporary democracies, Castiglione
and Warren argue along similar lines. They claim that the object of representation is not
individuals as such. Representatives act in defence of certain wants, ideas, understandings,
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interests and values. And they participate in the process in which those are constructed,
once they frame and vocalize specific social perspectives. According to them,
it is precisely this detachment of collective entities from persons that enables
representatives to represent positions in public discourse and argument, in this way
serving as both conduit and structure of public spheres. Without this detachment
from specific persons and interests, politics would fail to have a discursive locus,
and would be reduced to the aggregation and bargaining of interests and identities
(Castiglione and Warren 2005, 16).
Clearly, their proposal is to shift the focus of representation away from individuals, and
this requires non-electoral means. It also requires a type of symbolic or discursive action in
the public sphere. This is so especially in societies characterized by the decentralization of
certain powers and the globalization of others. “On the one hand, politics is increasingly
spilling out of formal, electoral politics into non-electoral and informal domains […] On
the other hand, modes of influence are expanding” (Castiglione and Warren 2005, 17).
There are, hence, several forms of non-electoral representation, which goes from interest
groups to social movements and includes a wide range of associations and ascriptive
groups. These representatives may act in spheres of participatory decision-making (Gastil
and Levine 2005; Wampler and Avritzer 2004), in the exercise of influence over elected
representatives (Habermas 1996; Parkinson 2003), and in the formation of public opinion
by the vocalization of certain discourses (Dryzek 2000a). In this way, such representatives
raise actual possibilities for citizen participation and for the maintenance of the circularity
between state and society.
Another interesting approach is the one adopted by Iris Young, who argues that
representation should be understood “as a differentiated relationship among political actors
engaged in a process extending over space and time” (Young 2000, 123). When arguing
in favour of democratic representation of minorities and marginalized sub-groups, Young
distinguishes perspectives from both interests and opinions.2 Perspectives, which are a
product of social structures, do not have a specific content and would thus be plural. The
representation of them is neither focused on individuals nor on a group common essence.
According to Young, democracy may be deepened by the pluralization of formats
and spheres of representation because “systems of political representation cannot make
individuals present in their individuality, but rather should represent aspects of a person’s
life experience, identity, beliefs, or activity where she or he has affinity with others”
(Young 2000, 133). A complex web of representative mechanisms has a greater chance of
representing more aspects of individuals. For this reason, Young values both formal and
informal representatives, and she indicates that the representation of social perspectives
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must occur in several contexts besides parliaments, including civil society associations.
A similar point is made by Michael Saward (2009), who acknowledges that
representation is always partial and incomplete. In order to deal with the constitutive
plurality of identities and constituencies, he recommends one should think of representation
as a claim, instead of a possession. Such claim has to be redeemed by audiences, and
elections are just one procedure to conduce this process of redemption. Saward (2009, 7-8)
argues that “despite its undoubted strengths elective representation contains structural
weaknesses that some forms of non-elective representation may be able to exploit, by offering
different sorts of representative claims which may resonate well with specific audiences”.
He suggests hence that the deepening of democracy may require different types of claims
of representation. Although he does not specify the objects of these different sorts of
representation, one can assume they should not be restricted to individuals.
Last, but not least, I would like to draw attention to the very fruitful approach
of discursive representation. The proponents of this approach argue that the object
of representation is not individuals as such, but discourses. Margaret Keck (2004), for
instance, defends the notion of discursive representation when discussing the emergence
of new decision arrangements at a transnational level. According to her, the resolution
of certain issues requires the participation of experts and ordinary citizens from several
countries. Such arrangements have blurred the boundaries between state and civil society.
“Because the members tend to represent positions rather than populations, ideas rather than
constituencies, I refer to this institutional process as discursive representation” (Keck 2004,
45). The purpose of discursive representation is to make a multiplicity of voices heard.
Keck’s approach is, nevertheless, still imprecise when attempting to define the idea
of discursive representation. This is so because she is somewhat vague in her definition of
discourse. A more developed account is the one advanced by Dryzek and Niemeyer (2007),
who connect the idea of discursive representation to deliberative democracy. For them, a system
solely based on the representation of individuals has a homogenizing feature, as it is unable
to capture the nuances of socially existent discourses. For this reason, they suggest additional
modes of representation, which would be more appropriate to deal with the constitutive
multiplicity of selves. They argue representation should be centred on discourses, as they are
essential for the constitution of selves and social life. From this perspective, individuals are
not the most basic unit of the political world. At the kernel of politics is a constellation of
multiple and contesting discourses. To Dryzek and Niemeyer (2007), civil society associations
are very important in vocalizing several discourses. Their action is at the heart of a lively public
sphere. But the scholars also propose an institutional arrangement for the consolidation of
discursive representation. To them, the formation of discursive chambers would promote the
connection between processes of opinion formation and decision-making.
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The approaches discussed throughout this section point to the necessity of conceiving
of representatives in ways that go beyond the idea of formally elected politicians. They
suggest that civil society associations may be thought of as political representatives, which
are organized around certain collectivities and that foster specific interests, perspectives
or discourses. In so doing, such approaches also state the need to understand the object
of representation beyond the classical definitions centred on individuals. While opening a
fruitful discussion, these suggestions pose new questions. Civil society representation is
not marked by formal procedures of authorization and accountability. In addition to that,
such representation does not often have decision-making capacities.
I argue, nonetheless, that even if idiosyncratic, civil society representation plays a
significant role in the collective construction of decisions made by a society. Representation is
a political practice that may acquire existence in institutions of different formats. Doubtless,
civic associations are one of them, as they can foster political inclusion of individuals (by
advocating their discourses, perspectives, opinions or identitarian features) in processes
of opinion formation and decision-making. These associations may enhance the circularity
between state and society. As Young puts it, “Strong, autonomous, and plural activities of
civic associations offer individuals and social groups maximum opportunity in their own
diversity to be represented in public life” (Young 2000, 153).
It is important, however, to refine this argument and discuss in depth the whole idea of
civil associations as political representatives. This is what I will do in the following sections
of this paper. I argue that considering an association as a legitimate political representative
requires analyzing its features, its pragmatic effects and its relationships with other social
actors. I do not agree, therefore, with neo-Tocquevillean perspectives which simply take for
granted that the redemption of democracy can emerge by the simple existence of a strong
and organized civil society. There are conditions to evaluate if an association exerts (or
not) democratic political representation.
My central argument, as should be clear in the final section, is that legitimacy
and accountability are also central features of this type of representation. They do not
nevertheless emerge from formal procedures of authorization. Legitimate representation
from civil society can be enhanced by accountability processes constituted through
communicative interchanges that take place in several interactional loci (i.e. discursive
contexts). The absence of formal mechanisms of authorization does not imply the total
absence of mechanisms of legitimation. There are, as a matter of fact, informal procedures
to generate accountability and legitimacy. Such procedures, I contend, can be fostered by
a deliberative conception of democracy that emphasizes the importance of communicative
exchanges in different contexts.
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Representation in Civil Society: Associations as a
Possibility of Transit between the General and the Partial
Thinking of civil society associations through the lenses of political representation
requires caution, so as to avoid an overestimation of their potentials. Simply propagating
the qualities and wonders that emanate from civil society does not take one very far. Civil
society must be seen as complex and heterogeneous. And such complexity cannot be put in
uncomplicated terms as if there were a good and a bad civil society which could be simply
defined by the goals of certain associations (Armony 2004).
An interesting route, in this sense, is the one opened by Mark Warren, who defines
the practice of association as a “form of social organization that thrives on talk, normative
agreement, cultural similarity and shared ambitions – that is, forms of communication
that are rooted in speech, gesture, self-presentation, and related forms of social interaction
(Warren 2001, 39). In this approach, associations are not so much an empirical reality,
but more a medium of social organization. Anchored in Parsonian sociology, this scheme
claims that the principle of association is based on communication and normative influence,
not on money and power. As such, it can be found in organizations and institutions also
permeated by other steering media.
According to Warren, associations are the voluntary organizations in which the
associational principle prevails. Communication is at the core of associations, but
interactions steered by money and power are also constitutive of them. It is important to
notice that different combinations of principles generate different formats of association.
Such distinction is of special importance for the discussion of democratic political
representation, here in focus. Diverse sets of principles may imply different strategies,
structures and effects. And, as stated by Castiglione and Warren (2005, 11), one can measure
the quality of representation based on the effects it produces (output legitimacy) or based
on the internal processes that generate authorization (input legitimacy). In this section, I
will concentrate in their effects.
Warren subdivides potential democratic effects of associations into three main
categories (Warren 2001, 61): 1) they may contribute to the formation and strengthening of
citizens’ capacities; 2) they may be important in creating an infrastructure for public spheres;
and 3) they may contribute to generate institutional conditions for the transformation of
autonomous judgments into collective decisions. These three types of effects are central to
democracy, because they help to strengthen the exercise of autonomy, both in its individual
and political dimensions.3
One might ask, however, what these effects have to do with the exercise of democratic
political representation by civic associations. If one is interested in proposals that expand
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the concept of representation, so as to allow the deepening of democracy, and if one claims
that associations may play a significant role in such expansion, this can only be the case if
associations themselves have democratic effects. These effects cannot simply be attributed
to associations; neither can they be deduced from the stated goals of associations. They
emerge pragmatically as the result of several factors, including the context in which such
associations are immersed (Armony 2004). It is only when strengthening democracy –
by fostering individual and political autonomy – that associations may be considered as
democratic political representatives. This is so because only then may associations be able
to nurture the dynamic circularity between state and society.
Take, for instance, the second type of democratic effect mentioned by Warren, i.e.
creating the structures for public spheres. Such structures are essential for the exercise
of autonomy. The communicative interactions established by an association with other
actors, as well as the interlocutive flows that constitute the association itself, are crucial
to representative democracy. These internal and external discursive exchanges are
fundamental to enhance the accountability of actors from the formal political system.
Also, and perhaps most importantly, they may enable the publicization of perspectives and
arguments which might not have been heard otherwise. Associations may capture, organize
and amplify the public frames of specific debates (Habermas 1996). In this dynamic, they
publicly advocate perspectives and discourses of specific groups, representing them before
broader publics. Such a process is not harmonious and easygoing, but full of tensions
(Parkinson 2003).
My point here is that such communicative role means that associations advocate
specific causes, promoting the public existence of a great number of traditionally excluded
discourses. As argued by Saward (2009, 12) “a representative claim may be based on the
fact that an important perspective within a debate is not being heard or even voiced”. It
is worth mentioning that this public advocacy cannot be simply presented as a struggle
for particular interests. It also involves the generalization of perspectives and arguments.
If associations are to act as political representatives, they may be partial-yet-communal
actors, as Urbinati refers to representatives. That is, they must foster the connection between
particular positions and general principles, which does not mean they must (or should)
be impartial. “Advocacy is not blind partisanship; advocates are expected to be passionate
and intelligent defenders” (Urbinati 2006, 46).
The whole idea of associations as representatives is not restricted, however, to the
vocalization of discourses in the public sphere, which would be a very informal conception
of representation. It is relevant to recall that most of the proposals we have discussed in
the previous section are mostly concerned with processes of decision-making. This leads us
to the third category in Warren’s typology, namely, the institutional effects of associations.
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Civic associations can both exert pressure upon formal arenas of decision-making and get
involved in more participatory institutional designs.
In the first case, one must take into consideration that associations may put pressure
on elected politicians, acting on behalf of discourses, interests, opinions and perspectives.
As discussed by Habermas, the centre of the political system cannot be thought of as an
autonomous and autopoietic sphere. It cannot produce legitimate decisions if isolated from
other systems and society as a whole (Habermas 1996).4 The pressure upon the actors
of this system can happen in a variety of ways, ranging from rhetoric to cultural change
(Dryzek 2000a). These activities are fundamental for the maintenance of communicative
flows linking state and society. Extra-parliamentary forms of representation are permanently
in practice.
In the second case, i.e. participatory forums, associations may have a direct voice
in processes of decision-making. This happens in arenas in which members of the
government establish dialogues with other social actors in order to produce more complex
and participatory decisions. Some contemporary practices that could be mentioned are
participatory budgeting, deliberative councils, and thematic committees that sometimes
have legislative authority.5 In these forums, associations act in defence of certain policies,
alleging they benefit both the ones they represent and society as a whole. There, civil society
actors may present discourses and perspectives in ways that promote the connections
between specific and general. They may foster communicative processes that lead to the
consideration of the positions of all those potentially affected by a specific decision.
In this section, I have argued that a first condition for conceiving of civil society
associations as democratic political representatives is their pragmatic effects. If such
associations are to be understood as democratic representatives, they must enhance
democracy and they may do so by providing communicative structures for the public sphere
and by enabling citizens to have a say in decisions that affect their lives. I also suggested
that these democratic effects cannot simply be taken for granted, nor can they be deduced
from the goals of associations. One must research, empirically, the manifestation of these
effects in specific contexts, as argued by Armony (2004). It is only through the observation
of these associations and their effects that one may evaluate whether they promote the
public representation of a greater number of discourses or suffocate the pluralization of the
public sphere.6 This empirical observation must take into consideration the constitution
of these representatives, since they are collective, heterogeneous and multifaceted actors.
This is the issue I will be dealing with in the final section of the present paper. My claim is
that an association’s openness to several interactional loci is a significant way to promote
accountability and legitimate representation.
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Legitimacy and Accountability in Non-electoral Representation
As already mentioned, the main problem of considering civil society associations as
political representatives refers to the legitimacy of these organizations.7 Usually, there are
no formal mechanisms of authorization, accountability and punishment to ensure that a
representative relationship will be an actual relationship. Such absence of representative
bonds poses questions as to the adequacy of these actors having an active role in processes
of decision-making, for instance (Parkinson 2003).
However, as pointed out by Castiglione and Warren (2005, 20) “What counts as
authorization and accountability will, of course, depend upon the kind of representative”. If
associations are not elected by a whole political community, this does not mean they are not
submitted to accountability. There are other kinds of practices that permeate an association
and that may point to (or deny) its legitimacy. Such practices guarantee a strong and
tight connection between the represented (their discourses, ideas, perspectives, opinions)
and the representatives (in this case, associations). Castiglione and Warren argue that, in
these cases, authorization may emerge by the capacity of a group to attract members, by
a convergence with characteristics of the represented, by public visibility or by success in
building public justifications.
I believe informal mechanisms of legitimacy and accountability are directly connected
to the organizing structure of an association and to its strategies. In this sense, I agree
with the argument that internal inclusive communication between subjects and those who
claim to act on their behalf is central to the constitution of representation (Warren 2001,
166; Parkinson 2003, 84). It is of fundamental relevance that an association structures
itself in a way that fosters a series of interactional loci, so as to increase communicative
flows. Associations must guarantee the existence of several spheres of interlocution, which
enable a permanent encounter and confrontation of discourses and ideas. This is the only
way, an association may show its plurality and its adjusting capacity, which are essential
attributes for the exercise of effective representation. A representative must be in permanent
metamorphosis so as to reconstruct its bonds with the represented. Through internal
communication, an association’s claims of representation may be endorsed or questioned
by those that are at its basis (Runciman 2007).
It must be clear, though, that just internal communication is not enough. Note,
therefore, that I am not arguing that a horizontal internal structure entitles an association to
act as a political representative. Although the existing literature stresses the importance of
internal communication, it is also important to emphasize the relevance of communication
with social actors that are not part of the association. The above-mentioned adjusting
capacity is not only in reference to the aspirations of those an association claims to represent.
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There must be an adjustment to society as a whole, because representation is not mere
delegation. If it is to act as a democratic representative, an association must insert itself in
a web of discourses, building its own utterances, and testing their adjustment in a variety
of internal and external interactional loci. In this way, it can fine-tune its relationship both
to the perspectives, interests, opinions and discourses it claims to represent and to the
broader constellation of discourses available in the public sphere.
The point I make here is that these several spheres of interlocution allow not only the
construction of an association’s discourse, but also the encounter of this discourse with those
from other social actors. This enables the dynamics between the partial and the general,
which is at the core of representation. “The political process of representation filters and sorts
out the irreducible partiality of social or cultural identities by making them issues of political
alliances and programs” (Urbinati 2006, 37). Representation is therefore an important
component of a type of politics characterized by the confrontation of discourses.
By enabling the vocalization of certain world views and by fomenting the exercise of
reciprocal evaluations, representation may instigate a fruitful dynamic between partiality
and generality: a representative speaks from a specific perspective, but s/he may do so
in the name of the entire collectivity. Thus, democratic political representation must
promote plurality and divergence in the political field, without leading to sectarianism.
This is so because it demands a permanent movement between the general and the specific.
Representation depends on the translation of specific points of view into a general language,
a job with which some associations are daily engaged (Alexander 1996).
Hence, my claim is that the capacity for certain associations to act as political
representatives mostly emerges in the process of construction of the discourses they publicly
defend. These discourses will only be legitimate if they remain open to dialogue both with
those they claim to represent and with society in a broader sense. Following Avritzer
(2007), I thus acknowledge that civil society representation should not be thought of in
terms of authorization, as it is their legitimacy that justifies their importance as political
representatives. It is through the public exchange of arguments in different discursive
arenas that an association may build its legitimacy. It is also through such back-and-forth
of non-coerced communication that an association may justify its actions and utterances.
The central aspect for representation in civil society is the maintenance of an ongoing
discursive process in a diversity of spheres.
In this sense, the idea of public deliberation8 in different arenas seems to be a central
element in constructing political representation and in fomenting accountability. Herreros
has already proposed the capacity to promote deliberation as a criterion to differentiate
associations, but he does so because he thinks this can produce virtuous citizens (Herreros
2000). Instead, I propose that the openness of an association to deliberation in several
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arenas can stimulate a movement between partiality and generality which is essential to
representation.
The idea of a deliberative system, as advanced by several authors (Mansbridge 1999;
Conover and Searing 2005; Hendriks 2006; Parkinson 2003; Marques et al., 2007),9 is at the
kernel of this proposal. Such a system is formed by the crossing over of informal spheres
of conversation and formal arenas of decision-making. This model “recognizes that public
deliberation is not an activity restricted to either micro or macro venues, but something that
takes place in all sorts of institutions, arenas and spaces in social life” (Hendriks 2006, 497).
If a deliberative system is formed by several loci where people interact with each other, it
is central that these loci are connected, so as to promote a social circulation of discourses.
How tight this articulation should be and how it can be promoted or endangered is a matter
of empirical research, but there must be an articulation of different spheres, if deliberation
is to be effective in fostering the flow of discourses.
Such flow is indispensable, if representation is understood as a political practice
that promotes circularity between state and society. One must take into consideration
“the various levels at which public discourse take place within a democratic society, and
the various conversations that go on between the citizens, their representatives, and
the citizens and their own representatives” (Castiglione and Warren 2005, 13). In these
conversations, representatives build their discourses and set in motion a process which
supplants the partial/general dichotomy, by connecting these poles. Representation depends
on communication occurring “in collective or collegial gatherings in multiple stages and at
multiple times” (Urbinati 2006, 202).10
Recently, Habermas (2006) has also come to emphasize that a deliberative process
spread over society promotes the generalization of arguments. He thus sustains the relevance
of a clash of discourses produced in different social arenas.
Political communication, circulating from the bottom up and the top down
throughout a multilevel system (from everyday talk in civil society, through public
discourse and mediated communication in weak publics, to the institutionalized
discourses at the center of the political system), takes on quite different forms in
different arenas. (Habermas 2006, 415).
Summing up, the idea advocated is that these interactional loci (or communicative
contexts) that constitute the process of public deliberation permeate an association.
Such interactional loci may range from informal conversations in a bus stop to formal
public assemblies. Associations that remain more open to such crossing, building their
foundations on internal and external argumentative exchanges, are more prone to play an
actual role as political representatives. If representation always raises the question of who
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should be accountable to whom, as submitted by Gutmann and Thompson (1996, 128),
the proposal advanced here tries to decentralize the process of accountability. It does so by
arguing that such accountability occurs in the encounter of multiple discourses processed
in several contexts. The exchange of justifications constrained by publicity appears as the
quintessential form of accountability. From this perspective, associations
need not have direct principal-agent link with the relatively inactive citizenry
to have a legitimate role in a deliberative democracy: they are the essential facilitators
who do have time, resources and expertise to facilitate communication throughout
the macro deliberative system (Parkinson 2003, 117).
Thus, my approach assumes that accountability is not restricted to isolated actions,
such as voting in regular elections. Furthermore, it suggests that processes of accountability
may not be centred on individuals, as they emerge in the confrontation of discourses in
the public sphere. If deliberative accountability goes beyond elections and requires that
representatives justify their actions in moral terms (Gutmann and Thompson 1996, 129),
what I am advocating goes one step further, since it disembodies these justifications by
focusing on communicative exchanges instead of on subjects who produce utterances.11 It
is, therefore, a discursive accountability, which emerges in the give-and-take of arguments.12
Associations may give good reasons for their perspectives, and the publics with which they
interact (both internal publics and external publics) may evaluate the adequacy of these
reasons in a discursive process.
Civil society associations, as democratic political representatives, need to constantly
justify their actions and utterances in several discursive arenas. In this way, they foster
a process of back-and-forth of communication which advances the connections between
partiality and generality and the circularity between state and society.13 In this discursive
justificatory process, associations may (or may not) constitute themselves as legitimate
representatives for the propagation of specific discourses and the defence of certain causes.
Representation becomes thus a discursive process in which claims of representation are
always subjected to redemption or denial (Saward 2009). Only associations that are able
to sustain a link with the discourses and opinions of those they claim to represent, and
also publicize them in socially acceptable terms, can be taken as genuine and legitimate
democratic political representatives.
Concluding Remarks
In this paper, I have discussed the issue of political representation, defending the idea
that the actions of civil society associations can be thought of as a form of representation
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of discourses, voices, opinions, perspectives and ideas. I have defended the necessity of
distinguishing between different types of associations, claiming that the ones that actually
have democratic effects and whose structures are open to several crossings in a diversity of
interactional loci are more apt to act as democratic political representatives. I have gone
on to advocate that the notion of deliberation and, more precisely, of a deliberative system,
helps to conceive the cyclical process of accountability through which associations may
acquire or lose legitimacy to act as representatives.
I am well aware of the perspective that insists that deliberation cannot be thought of
under a representative regime of democracy, but believe this to be mistaken. Deliberation
is not opposed to representation. The former may even fuel the latter, since it can extend
accountability mechanisms beyond the formality of voting. From my perspective, associations
that foster deliberative processes in several arenas foment a political context propitious to
the spread of participation. They may, therefore, lead to a more inclusive representative
democracy, as the process of public justification helps to supplant non-reflexive forms of
power and promotes the public evaluation of discourses. Once opened to public scrutiny
and justifying themselves in several argumentative arenas, civil society associations may
have the legitimacy to act in defence of certain discourses.
I do not claim, however, that associations are the whole basis of representative
democracy, in some kind of simplified version of associative democracy. All I am saying is
that they may play important roles as representatives, thus leading to further democratization
of democracies. Associations are an important component of a system of multi-layered types
of representation, as argued by Parkinson and Urbinati. All that is necessary is finding a
balance among these different representative agencies, through communicative flows that
traverse and connect them.
Submitted in September, 2008.
Notes
1
132
I use the term interactional locus to refer to any sort of context where people interact with each
other through language. I do not call these contexts deliberative arenas because most of what
goes on in communicative exchanges is not deliberative. I claim, however, that fragments of
communicative exchanges in several spheres may constitute amplified deliberative processes.
Interactional loci can be formal or informal. They can happen in face-to-face meetings or
through any sort of mediated communication. Different interactive contexts allow the emergence
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of different sorts of interaction, and these different types of communicative exchanges can
bring different contributions to deliberation. Deliberation can be enriched if it is thought of as
something that intersects everyday conversations, meetings in associations, media discourses,
parliamentary debates and technical committees, for instance.
2
Young (2000, 134-135), defines “interest as what affects or is important to the life prospects
of individuals, or the goals of organizations”. Opinions are “principles, values, and priorities
held by a person as these bear on and condition his or her judgement about what policies
should be pursued and ends sought”. Perspectives, on the other hand, refer to a certain way of
looking at the world and comprehending it. They are shared by individuals who have similar
experiences, biographical histories and frameworks, which are generated by the structure of
social locations.
3
Warren (2001, 63-65) explains that individual autonomy does not imply isolation and
individualism. It has to do with the inter-subjectively built capacity of participating in reasoning
processes and of arriving at judgments that can be defended in public. It refers to individuals’
capacity of agency. Political autonomy on the other hand, transfers this idea into collectivities,
by suggesting that collective judgment should be the outcome of public reasoning.
4
It is interesting to mention that Urbinati (2006) criticizes Habermas, by alleging that his model
explains the harmonic relations between state and society better than the critical periods when
such circularity is obstructed. Nevertheless, this criticism seems inappropriate, since it does
not recognize the great effort made by the German philosopher on his model of circulation of
power. This model is mostly concerned with situations of crisis, when the outside initiative
model may be implemented.
5
I cannot deepen the analysis of experiences of participatory decision-making in this paper, due
to scope and length limitations. For some interesting examples, see Fung and Wright (2003);
Gastil and Levine (2005); Avritzer (2006); Coelho and Nobre (2004); Abers and Keck (2006);
Smith (2000); Baiocchi (2005); and Tatagiba (2002).
6
Ariel Armony (2004) warns that associations are not always good for democracy. They may
even hinder its development. And it is not a matter of just distinguishing a good from a bad
civil society, as if only totalitarian groups offered some risk. Armony reminds that several types
of associations may deepen social cleavages. He bases his argument on historical examples,
showing how this happened in Germany during the Weimar Republic, in postwar USA and
during Argentina’s dictatorship. In these contexts, several spheres that neo-Tocquevilleans would
interpret as sources of social capital were essential to destroy citizenship rights and democratic
institutions. Rejecting generic overviews, Armony claims civil society can only be analysed in
context. For other examples of discussions for a more cautious analysis of civil society, see
Chambers and Kopstein (2001); Dryzek (2005); Gomes (2006); and Marques, Mendonça and
Maia (2007).
7
In his formulation of a general theory of political representation, Rehfeld (2006, 4) has argued that
representation, in itself, does not have to be legitimate, equal and fair. However, if one thinks of
democratic political representation, and if one faces the problem of having to decide which among
several actors is best suited to exert representation, legitimacy emerges as a key concept.
8
The idea of public deliberation has a long and varied trajectory, ranging from traditions inspired
by Habermasian discourse ethics to ones guided by Rawls’s concepts of public reason and
overlapping consensus. There are deeply philosophical perspectives and rather empiricist ones.
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Some focus on argumentative exchanges in formal decision-making arenas, while others are
more concerned with a broader societal deliberation. I argue here for a definition similar to
the broad perspective advanced by Dryzek (2000b, 86), who seeks to “redefine deliberation
in terms of any kind of communication that induces reflection on preferences in non-coercive
fashion”. For an overview of perspectives on deliberative democracy, see Habermas (1996; 2005);
Dryzek (2000a); Bohman and Rehg (1997); Bohman (1998); Chambers (2003); Gutmann and
Thompson (2004); Elster (1998); Benhabib (1996); Avritzer (2000); and Maia (2008).
9
It is important to point out that the ideas of Habermas and Dryzek are at the heart of proposals
for a deliberative system.
10 Urbinati claims not to work under the framework of deliberative democracy, as she criticizes the
proponents of the model for their presumed cognitivist rationalism. However, her interpretation
seems mistaken, since the whole proposal of deliberation is to escape the cognitivism advanced
by the philosophy of conscience. In addition, Urbinati’s idea of judgment could be enriched and
deepened if inscribed under a deliberative approach.
11 Although broadly defining accountability as the act of reason demanding and giving, Gutmann
and Thompson still somehow tie such acts to elected representatives. They do not consider, for
instance, the requirement of deliberative accountability in civic associations. In their own words,
“Because deliberative democracy seeks to justify only decisions that collectively bind people,
decisions in truly voluntary associations should be less subject to its demands” (Gutmann and
Thompson 1996, 34).
12 I am thankful to John Dryzek for the suggestion of a distinction between deliberative
accountability and discursive accountability.
13 Note that this connection is produced in the process of communication as a result of the clash
of discourses. It is not a pre-condition for the public expression of positions as defended by the
Rawlsian differentiation between private and public reason.
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B OO K
R EV I EW
Judicial Contestation: A less Decisive
and more Resolute Political System
Rogério Arantes
Universidade de São Paulo (USP), Brazil
Judging Policy.
Courts and Policy Reform in Democratic Brazil
(Taylor, Matthew M. 2008. Stanford: Stanford University Press)
I
n a context where the amount of cases being processed in the justice system reaches
the extraordinary figure of 67.7 million – which is equivalent to one case for every
two people over the age of 20 – and where higher court decisions, such as those by Superior
Electoral Court (TSE) and the Supreme Federal Court (STF) have directly affected the
relationships among the branches of power and redesigned Brazilian polity, the publication
of Matthew Taylor’s Judging policy could not be more opportune. More than that, the
well-deserved recognition by the Brazilian Association of Political Science, which awarded
him with the “Victor Nunes Leal” prize for best Political Science book (2007-2008), does
justice not only to the quality of the work but also reflects the importance achieved by the
area of political studies of the Judiciary in the Brazilian political science community.
As the book well highlights, the past 20 years in Brazil’s democracy cannot be analyzed
without reserving a special place for the role played by Justice institutions. During this time,
judges and members of the Public Ministry (MP) have played a decisive role in fulfilling the
principles of the 1988 Constitution, in arbitrating the relationships among the branches of
power and among the federative entities, in the definition of and adjustments to the main
public policies implemented by the various administrations, thus affecting, it could be said,
the dynamics of the democratic regime as a whole. The triple transition in the 1980s and
1990s – political regime, State and economic model – was marked by the clash between
adverse trends and often by collisions between government policies and constitutional
principles. In the various conflicts involving administrations, political parties and civilian
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Rogério Arantes
society organized forces, the Judiciary was called upon to intervene. From the notorious
plans against inflation in the 1980s to the most recent Growth Acceleration Program (PAC),
governmental economic measures have had to undergo thorough judicial reviewing. In a
recent recap of PAC works, minister Dilma Roussef, the mind behind the plan, praised
the work by the Advocacy General of the Union in reducing what she called the ‘risk of
judicialization’, which has affected mainly land expropriation and environmental impact
processes relating to the program.
In fact, we know only the tip of the iceberg in the expansion of justice and the
judicialization of conflicts, and still quite superficially. It is remarkable, for instance, how
the docket of judgements by the STF throughout 2008 contained themes which were more
important to the country than the very recent Congress legislative agenda: in the past year
the STF plenary was engaged in discussions and decisions on stem-cell research, the use of
wiretapping in police investigations, the extension of the Raposa Serra do Sol Indian reserve
in Roraima, terminating anencephalic foetus pregnancies, among other relevant issues. In
2009, the docket is still loaded with extremely important issues. And what shall we say
about the political reform carried out through the judicial path in the past few years? A
combination of decisions involving the TSE and the STF introduced party loyalty in Brazil,
following other judicial interventions in the rules of the political game, such as those which
verticalized the electoral coalitions for some time and reduced the number of councilmen
in the municipal chambers, as well as the more recent ones, which suspended the political
party electoral performance clause and altered the distribution of the party fund.
However, the number of cases and the depth of the changes started by judicial
decisions to Brazilian polity still contrast to our meagre knowledge on how the courts in
Brazil operate and make decisions. In this sense, Judging policy should be greeted as one
of the most important recent contributions to overcoming such lack of knowledge.
Matthew Taylor’s work is organized in eight chapters, in which he demonstrates the
importance of the Judiciary’s intervention in policymaking processes in Brazil and seeks to
build analysis schemes that enable one to explain, more accurately, the use of the courts by
the players authorized to do so. The overall approach is unabashedly institutionalist and
based on the premise that “the rules governing access to institutional venues for policy
contestation matter significantly to final policy outcomes” (p. 5). But the institutionalism
does not take on, here, a narrow perspective, as the author recombines elements from at
least three neoinstitutionalist schools − the rational choice one, the sociological one and
the historical one − highlighting how the case of Brazil offers a “fascinating perspective”
of joint application of these three approaches.
Still in methodological terms, it should be stressed that Taylor openly refuses the
adoption of established models in the area of Judicial Politics, such as the attitudinal and
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Book Review
the strategic ones. The author indicates the limits to the application of such models when
reviewing the case of Brazil. More than that, given that the courts are passive entities and
only act when called upon, it is of less interest to model judges’ decisions than to analyze
the context and the rules to judicial contestation of policies.
Though the reader is warned that the analysis model in Judging policy should not be
used in a positivist manner and for predictive purposes, “given the number of component
independent variables”, it can be said that the author offers us a reasonably precise and rather
promising framework from the standpoint of application in comparative analysis. In the model
in Judging policy, three main factors influence the way public policies are judicially contested:
1) policy salience; 2) political environment and 3) judicial institutional environment.
As for the first factor, Taylor uses the classical analysis by Theodore Lowi to state
that “as policy determines politics, so too, policy may determine judicial politics” (p.
49). Based on the review of eight specific cases of public policies implemented during the
Cardoso administration, the author shows how the costs and benefits of each policy impact
the players’ decision to contest it judicially and the legal tactics to be chosen by them. The
overall conclusion is that policies characterized by costs that are concentrated in specific
groups and disperse benefits entail more judicial contestation than other types of policies
in which costs and benefits behave otherwise. The notion of “policy salience”, as applied
to the cases of judicial contestation, can be considered one of the great contributions in
Judging policy.
The second factor is given less attention in the text, but is still part of the incentives
and constraints to which political players are subject. It matters to know that the Brazilian
political system – from the detail-oriented 1988 Constitution to the institutional traits of
our multipartisan presidentialism and our federative regime – constitutes the battlefield
where policy judicialization strategies start making sense and are effectively used by the
policy players. In fact, an extremely important point in Judging policy, to which the author
devotes a chapter and repeated mentions in the conclusion, is the distinction between veto
player and veto point, so dear to institutionalist-oriented literature today.
According to Taylor, it is not correct to analyze the Judiciary and particularly the STF
as a veto player in the context of the Brazilian political system, be it because the court only
acts if called upon or because it is very difficult to see it making a decision in its own right.
In the judicial contestation game, veto players would be those actors who are legitimized
to call upon the STF by means of Direct Actions of Unconstitutionality (ADINs) but the
court itself would be better defined as a veto point. Going further than Tsebelis (1995)
(for whom a veto player is a political actor – an individual or collective – whose agreement
is required to enact policy change) and adopting Stone Sweet’s line, Taylor argues that
veto points are “institutional venues that permit political actors to exercise or threaten to
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Rogério Arantes
exercise a veto over policy” (p. 76). In these broader terms, addressing the STF as a veto
point enables one to show how policy players do not always resort to the court to obtain
legal victories, but make use of a set of strategies the author sums up as four ‘Ds’: delay,
disable and discredit policies or simply to declare their opposition. As we are talking about
the use of courts with the continuation of the policy by other means, judicial contestation
guided by one or more of the four Ds can simply mean an attempt, by the political actor, to
oppose the policies adopted by the Executive or the Legislative majority, to engage society,
to leverage political negotiations in the course of their implementation or even to garner
political weight from groups affected by the measures, but which, for institutional reasons,
have not got as much access to the courts. In a nutshell, “by contesting policy in court, it may
be possible to secure a political victory without ever achieving a legal victory.” (p. 10).
The third factor − Judicial institutional environment – is more complex and
was subdivided into three other dimensions by the author: 1) the structure of judicial
independence; 2) the structure of judicial review and 3) the administrative performance of
the courts. These dimensions, in turn, received even more detailed specifications. Judicial
independence is characterized by Taylor based on three aspects: 1) autonomy granted to
the Judiciary to take care of its structure and budget; 2) external independence, by the
judges, from other branches of government and 3) internal independence, by the lower
court judges from their superiors in the judicial hierarchy. The structure of judicial review
also depends on three other aspects: 1) constitutional arrangements or the extension of the
rights set by the Constitution and the possibility to have concrete jurisdiction over them; 2)
the supreme court’s scope of juridical power, i.e., whether its decisions can overrule laws
prior to their implementation or not, whether judgements incide on concrete cases or on
the law in thesis, whether its decisions have erga omnes effect and bind the decisions of
lower courts, and, lastly, whether judges have discretion to choose which cases they will
hear and how; 3) standing, or one of the most highlighted aspects by the author in this
dimension of judicial structure: “which actors are legally enfranchised to file what type of
suit, regarding what subjects, in what court” (p. 22). Lastly, administrative performance is
something that depends on the structure of the judiciary organization, the number of judges
and their work conditions, which make a difference in the light of the number of suits brought
to the Judiciary. Seen together, these dimensions of the judicial institutional environment
enable one to characterize Brazil as an example of high judicial independence, associated
with quite a decentralized judicial review structure and one which is broadly accessible by
political actors, and which enjoys comprehensive constitutional jurisdiction on citizen’s
rights and State duties. However, all these remarkable features coexist with precarious
administrative performance (they might be part of the cause), marked by the extremely
high number of cases, slowness of judgements and low effectiveness of decisions.
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Judging policy concentrates its analysis on federal justice and particularly its highest
body – The Supreme Federal Court – responsible for judicial review of laws, for the Direct
Unconstitutionality Action and/or Extraordinary Appeal instance for suits from lower
courts. In line pointed by previous studies, Taylor examines the impact of the expansion,
by the 1988 Constitution, of the prerogative to bring judicial review cases in the high court
to a select list of organized actors. He also highlights the importance of the hybrid setup
of our judicial review system – which combines elements from the concentrated European
model and diffuse US one – and which makes the STF a quasi-constitutional court. And it
is important to remember, as does the author, that such direct control of constitutionality
by the supreme court was significantly reinforced by the recent Constitutional Amendment
45 (2004), which promoted the Judiciary Reform and introduced mechanisms such as
the Binding Precedent and General Repercussion of Extraordinary Appeal, which had
been discussed in the juridical and specialist academic circles for years. Associated with a
Constitution which constitutionalized a wide array of public policies, such aspects make
up quite a favourable picture to judicial contestation by the policy players with rights to
file suits with the STF.
Reviewing the ADINs against federal laws in the 1988-2002 period confirmed some
hypotheses and rejected others. His main conclusions were that 1) there has been no
significance over time, across successive administrations, with regards to the level of granting
of injunctions, a result that drives away application of the attitudinal model, given that
the “STF has not exhibited any overarching political preferences regarding the occupant
of the executive branch.” (p. 87); 2) the constitutional controversy set by ADINs reflects
much more the conflicts between minorities and majorities in the political system than
among branches of government; 3) legal professional groups, such as lawyers, judges and
MP members stand a 1.6 better chance of attaining a favourable decision than other actors,
especially the Brazilian Bar Association (OAB), responsible for 46% of the actions brought
by these professional groups and 5% of the total ADINs in the period; 4) the analysis also
found little variation in the granting of injunctions regarding the type of law – ordinary law,
complementary, constitutional amendment or provisional measure – contradicting the initial
hypothesis that the level of deliberation built into the legal text might make a difference in
the STF’s considerations on the constitutionality of the laws, but this does not seem to have
affected the Court’s decisions; 5) plaintiffs have approximately 1 chance out of 5 to see the
policy change, with an advantage to state actors and legal groups. But the author highlights
that the policy players who make use of ADINs get political benefits from the actions they
bring, even if the legal result is not in their favour; 6) though responsible for 1/3 of direct
actions, the political parties attain much fewer victories than the OAB, for example.
Two chapters are devoted especially to reviewing the use of ADINs by the Workers’
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Party (PT) and by OAB. The comparison between these two types of plaintiffs proved
extremely interesting not just from the standpoint of the results obtained, but from the
standpoint of the different strategies used by them and the deeper interests which they seem
to be going after when they call upon the constitutional court. PT was the party which most
resorted to the STF between 1995 and 2002, when they were the opposition in the Cardoso
administration. However, only on three occasions was PT successful in disabling policy by
winning on the merit. To party leaders interviewed by the author, regardless of legal victory,
it mattered to the party to create political facts, raise criticism and questions regarding the
policy and foster controversy in the public debate. In the case of judicial contestation by
the party, the four Ds in Taylor’s model were the aim: declare the PT´s opposition; delay
policy´s implementation; discredit policies and, even if to a lesser extent, disable policy. As
the author concludes, “courts can be effective political venues even when judicial review
does not lead to legal victory” (p. 91).
As for OAB, the bar association was also one of the main opposition forces to the
Cardoso administration and filed, with a higher success rate than other players, several
ADINs against policies implemented in that period. Why did the OAB get involved in
disputes against the Cardoso administration? Partly due to the ideals defended by the
Association, which clashed with the neoliberal sense of the reforms promoted by Cardoso,
but partly also because many of them hurt lawyers’ pecuniary and professional interests.
From the standpoint of a normative theory of democracy, it is troublesome that a professional
organization has enfranchised its access to the country’s main justice court, to call for
constitutional control of laws to defend what it considers to be the nation’s interest, and
this when it is not simply about defending its own interests. Whichever the justification,
such a situation contains a double paradox: if the organization is driven by its own interests,
is it reasonable for it to enjoy privileged access to the constitutional court, whereas others
do not? And if the organization is driven by others’ interests, the situation is no less of a
paradox, as what is a professional organization’s mandate based upon for the defense of
third party’s interests, or even the country as a whole?
Supported by a “reservoir of public goodwill”, says Taylor, the OAB has acted
as a “democratic watchdog” and in the period analyzed in the book filed several suits
against the Cardoso administration. The OAB was also a fierce opponent of topics in the
Judiciary Reform, such as adoption of the Binding Precedent and reinforcing the STF as a
constitutional court, always in defence of lawyers’ interests. Although, in the comparison
between the OAB and the PT, Taylor stresses that the former concentrated its suits with
the STF whereas the latter put on a juridical guerrilla in the lower instances too, one aspect
not mentioned by the author is the following: an ADIN by OAB against a government or
Congress legal measure indicates, to the whole lawyers’ community, a new type of case in
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which they can act and bring individual suits in the Judiciary’s first instance, making use
of the diffuse side of the Brazilian hybrid judicial review system.
Lastly, Taylor applies his model comparatively, and the results are quite promising. On
comparing the pension reforms in Brazil, Uruguay, Argentina and Mexico, as well as the level
of opposition and judicial contestation raised in these cases, the elements of policy salience
and judicial institutional environment are tested and confirmed. Taylor carries out a careful
analysis of the political forces directly and indirectly engaged in the reforms in each country,
examining particularly the level of unanimity within and between interest groups and political
party with potential to act as veto players. From this analysis emerge descriptions of the
fragmentation and inconsistency of the opposition to the reforms in the cases of Argentina
and Mexico, and of greater articulation and consistency in the groups and opposition parties
in Brazil and even more strongly in Uruguay. In the first two cases, the reform processes
were relatively simple, whereas in the last two they were marked by tough resistance and
only incremental advances. Two institutional variables played for the opposition to reform in
Uruguay and Brazil: the referendum and judicial contestation, respectively.
Why did the courts not play the same role in Argentina, Mexico, and even in Uruguay?
In the first two, it was the courts’ lack of judicial independence in those countries that
explains their absence in the pension reform policy, especially with regard to the external
dimension, that is, the judges’ independence from the other branches government. In
Uruguay’s case, judicial independence exists but the lack of abstract review and erga omnes
effects caused the supreme court’s decisions which were contrary to the reform to have
very limited reach. In Uruguay, the most effective institutional mechanism was actually
the referendum. In comparative terms, in the end the case of Brazil stood out for resorting
to judicial contestation, which proved more effective due to greater independence by the
Judiciary, form of access to the STF (standing) and the erga omnes reach of its decisions.
The institutionalist explanation imposed itself and the comparison reinforced the pertinence
of the variables in the model in Judging policy.
In conclusion, Taylor does not fail to indicate some ambiguities which surround the
judicial review of public policies, such as the political use of courts by those who lose in
the political arena – and which actions may raise the implementation costs to be borne by
society as a whole – or even unequal access by groups to the constitutional court, generating
distortions in the representation of interests and leading to particularistic decisions. But
despite the criticism, the overall conclusion in Judging policy seems optimistic regarding
the effects of judicial contestation in deepening democracy. While the majoritarianistic bias
defends that a concentrated policymaking process makes politicians more accountable for
the decisions they make and implement, Taylor argues, in line with Cox and McCubbins
(2001), that a high and concentrated level of decisiveness may lead to such frequent changes
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Rogério Arantes
in public policies that the stability of good policies may be negatively affected. Besides,
excluding other relevant actors lowers the level of commitment to the policies themselves.
In a nutshell, a more decisive polity, a less resolute polity. The experience of veto points in
Uruguay and Brazil, according to Taylor, would have “contributed to a more democratic
reform process in these countries, founded in broader public evaluations of the costs and
benefits of reform alternatives” (p. 149). In other words, “a high number of veto players
may make policy less decisive and more resolute, but it does so both directly – by making
any given policy more difficult to approve – and indirectly – by making the overall policy
process slower and more deliberative” (p. 150).
It is interesting to note, lastly, that amid widespread expressions in the area of political
studies of the Judiciary, such as “judicialization of politics” or “expansion of judicial power”,
Taylor chose to coin a new one: “judicial contestation”. Partly, the expression makes sense
because Judging policy does not analyze how the courts decide and distances itself, as we
have seen, from models which are interested in explaining how judges behave and even
from the idea that they act as veto players. His main concern is to show how the courts
are activated externally by policy players interested in making judicial contestation an
extension of political conflict. Though Judging policy does not adopt a pluralist perspective
of democracy, it is irresistible to recall that the notion of public contestation is the core
of Robert Dahl’s definition of Poliarchy (limited, it is worth remembering, to political
institutions) and if Taylor’s effort, as well as that by all of us who have devoted ourselves
to this study area, is to integrate the Judiciary into the roll of institutions which affect
democratic processes, I think that the concept of judicial contestation is an excellent step
to promote such integration, inserting the judicial institutions at the centre of the debate
on how our polyarchies really work.
Tsebelis, George. 1995. Decision making in political systems: Veto players in presidentialism,
parlamentarism, and multipartyism. British Journal of Political Science 25:289-325.
Cox, Gary, and Matthew McCubbins. 2001. The institutional determinants of economic policy
outcomes. In Presidents, parliaments, and policy, ed. Haggard, Stephan and Matthew
McCubbins. Cambridge: Cambridge University Press.
Stone Sweet, Alec. 2000. Governing with judges: Constitutional politics in Europe. Oxford: Oxford
University Press.
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Acknowledgments
BPSR acknowledges the following colleagues for acting as ad-hoc reviewers during
the year of 2008.
Andrew Hurrell
Inês Patrício
Argelina Figueiredo
Kai Kenkel
Carlos Aurélio Pimenta de Faria
Klaus Frey
Carlos Milani
Marco Vieira
Celi Scalon
Margareth Keck
Cezar Zucco
Maria Izabel de Carvalho
Eli Diniz
Maria Rita Loureiro
Eugênio Diniz
Marta Arretche
Fabiano Santos
Matthew Taylor
Fernando Limongi
Rebecca Naeara Abers
Flávia de Campos Mello
Reginaldo Nasser Mattar
Jairo Nicolau
Telma Menicucci
Gisele Cittadino
Thomas Ferdinand Heye
146
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Phone: (5521) 2266 8300
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