Constraining Access to Justice
Authoritarian rulers can also contain the impact of judicial activism by adopting a
variety of institutional configurations that constrain the efforts of litigants and judges. At
the most fundamental level, civil law legal systems provide judges with less
maneuverability and less capacity to create “judge-made” law than their common law
The rapid spread of the civil law model historically was not merely the
result of colonial diffusion, where colonial powers simply reproduced the legal
institutions of the mother country. In many cases, the civil law model was purposefully
adopted independent of colonial imposition because it provided a better system for rulers
to constrain, if not prevent, judge-made law. Although the strict differences that
supposedly separate civil law systems from common law systems are often overstated
and even less meaningful over time as more civil law countries adopt procedures for
judicial review of legislation, civil law judges are still more constrained than their
common law counterparts since they lack formal powers of stare decisis.
Similarly, authoritarian rulers allowing for an independent judiciary and judicial
review of legislation can engineer further constraints on: 1) the institutional structure of
judicial review, 2) the stage at which judicial review can occur, 3) the type of judicial
review permitted, and, finally, 4) the parties that enjoy legal standing to initiate judicial
review procedures. All other factors being equal, an authoritarian ruler intent on
120
John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western
Europe and Latin America (Stanford: Stanford University Press, 1985); Mark Osiel, “Dialogue with
Dictators: Judicial Resistance in Argentina and Brazil.” Law and Social Inquiry, Vol. 20, (Spring 1995);
Joel Verner, “The Independence of Supreme Courts in Latin America: A Review of the Literature,”
Journal of Latin American Studies, v. 16 (1984), pp. 463-506.
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Shapiro persuasively contends that the supposed role of the civil law judge to simply apply preexisting
legal codes is a myth because it assumes that codes can be made complete, consistent, and specific, which
is never fully actualized in reality. The result is that the civil court judge engages in judicial interpretation,
a fundamentally political role, just as judges do in common law systems. See Martin Shapiro, Courts: A
Comparative and Political Analysis (Chicago: The University of Chicago Press, 1981).
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Convention