Separating Power and

Countering-
Corruption: Some
Comparative Thoughts
E R I K J E N SEN
R ULE OF LAW I N LAT I N AME R ICA CON F E R ENCE
DECE M BE R 8 , 2 0 1 7
Outline
Modernization

Separation

Disruption

Consolidation?

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Modernization

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Legal Institutions and Economic
Growth (Rule of Non-Law Project)
Hypothesis #1: That formal legal institutions are not important
to economic growth and development at early stages of
development (and may delay industrialization).

Hypothesis #2: That, at early stages of development, business

actors often use poorly functioning legal regimes to their
advantage until the complexity of economies reduces those
advantages and obfuscates winners and losers.

Hypothesis #3: That workarounds to the formal legal system

entail higher transaction costs.

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Relationship of Law and Legal
Institutions to the Political Economy
• Law as a “politically neutral fixed endowment,” a technical
input like a damn or a bridge (reduces law to the sum of its
rules)

• Versus law arises from human interaction that is dependent on

the political system; law and market development + highly
iterative process of action and strategic reaction

• Political economy determines whether a law is “contestable”

e.g., lavish exec compensation in US vs. Germany

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Demand for Law and Legal
Institutions
Smith and Marx: As markets grow in size and complexity,
and economic actors become more diverse, demand for law
appears to grow

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 When Do Courts Matter?
“[A]t some point in the process [of economic development,
HICs] experience the political incentives to build
autonomous courts with a significant degree of autonomy,
particularly in the areas that allow the regime to make
credible commitments in the economic sphere.” (Ginsburg &
Peerenboom, p. 25)

Independent, autonomous third party monitoring becomes

an important function, but when and how?
 Economic Growth and the
Role of the Judiciary

Country *GDP/PC/PPP 2015 WJP ROL Index 2016

Singapore ($85,382) 9
South Korea ($34,647) 19
Hungary ($26,457) 49
Poland ($26,862) 22
Chile ($23,366) 26
Costa Rica ($15,594) 25
Brazil ($14,000-15,000) 61
Georgia ($9,599) ???? 34
$8,000-28,000 GDP/PC/PPP at reform tipping points in roughly early 1990s, except Costa Rica (approx.
$6,000)
*World Bank 2015 at http://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD

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Modernization Theory and
Brazil’s Counter-Corruption Story
Long history of pervasive corruption
Judiciary spurt 1988-2004, and 2004 onward
Two dramatic cases: Mensalao Scandal, Car Wash Case
Deep network of “allies of miscreants”
What are we missing? How far can the judiciary go?

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Separation

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Personal Perspective
Prior position: Can’t fix larger issues of separation of powers and
judicial independence, but might be able to work on the margins on
legal institutional reform that helps citizens get-on with their daily
lives. Courts are the “least dangerous” branch of government.

Evolving position: With growing autocratic practices from many

corners of the developed and developing world, and with the growing
use of judiciaries as instruments through which to achieve greater
autocratic power, more interested in the role of judiciaries in what
Larry Diamond calls the “Democratic Recession”

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“Separating” Power
“Barren assertions of its [separation of powers]importance, however, do not
capture the complexity of the matter….
No consensus existed as to the precise institutional arrangements that would
satisfy the requirements of the doctrine. The only matter on which agreement
existed was what it meant not to have separation of powers: it meant tyranny.”
US Constitution and Brazil’s 1988 Constitution = versions of “an uncertain
doctrine.”
◦ Gerhard Casper, Separating Power: Essays on the Founding Period, Harvard University
Press: 1997 (analyzing the various ways that American colonies separated power 1776-87).

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ROL According to Political
Scientists
Political scientists focus on rule of law to constrain the
exercise of power by political actors

But a possibility that Montesquieu actually was concerned

about: judicial overreach

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Growth of Judicial Review
Today, judicial review is enshrined in 82% of constitutions.
In 1946 it was included in only 25% of constitutions.

Therefore, as judicial review has been enshrined in more

constitutions, pressure from autocrats has increased to
control judiciaries.

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Boilerplate Solutions to Lack of JI
and Brazil
a. Appointments

b. Capacity

c. Internationalization

d. Public Demand

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Judicial Capacity
The Value of Education and Experience
“To a large extent, … professionalism (and the chance for judicial
independence) depends on the quality of judge’s legal
education…. [E]ducated independent minds are a prerequisite for
judicial independence.” (Gerhard Casper)

Brazil: idealistic, well-educated young professionals join the judiciary

and prosecutorial services through meritocratic examinations

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Evolving Role of Judges in Brazil
Do judiciaries just “call balls and strikes”?
Martin Shapiro: ”Judges As Liars”
…”[R]ule of law," to the extent that the concept is intended to mean
that judges apply only pre-existing law, can never exist. Judges often
make rules for decision of future cases and are, therefore, making law.
Judicial Consequentialism: Outcomes should be consistent
with the purposes and intent of the law

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Brazil in the Balance
Where is Brazil on the spectrum between separation of powers and
what will be viewed by the polity as judicial overreach?

When is it time to do a make a deal? Is an elite-pact forthcoming?

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Disruption

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“Only a crisis – actual or perceived – produces real change. When
that crisis occurs, the actions that are taken depend on the ideas that
are lying around. That, I believe, is our basic function: to develop
alternatives to existing policies, to keep them alive and available until
the politically impossible becomes the politically inevitable.”
- Milton Friedman, Capitalism and Freedom (1982)

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 Public Demand for Judicial Checks
and Balances
“[U]ltimately, the independence of the
judiciary depends on an engaged
public….” (Gerhard Casper)

• Guatemala
• Indonesia
• Karl Marx and Adam Smith
Pro-Judiciary Protests in Poland

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Indonesian Story in a Nutshell
1. International Support tied to Public
2. President (initially 2004, not 2009)
3. Public – Pop culture (Slank)
4. Parliament (initially)
5. Media and Civil Society Groups – Facebook 1 million-plus
members
6. Vertical Institutional Integration with Judiciary
(handpicked for reputation)
7. High Capacity Commission (and well-resourced)
8. Broad Investigative Powers

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KPK Budget and Staff, 2008 – 2011
Year Rp (b) $(m) Staff
2008 233 24.6 540
2009 315 33.3 652
2010 431 45.5 638
2011 540 57.0 752

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Then KPK Goes After “Big Fish”
Pragmatists early, then activists populate KPK

Huge political gamble ---

Go after Speaker of Parliament Novanto
◦ KPK commissioner physically attacked
◦ Budget may be reduced
◦ With Novanto out, ruling coalition may fall to old guard Golkar
◦ If Golkar wins, it may try to dismantle KPK altogether

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Consolidation?

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Woody Allen and
Brazil’s Critical Juncture
Woody Allen’s Matchpoint – on luck or overwhelming contingencies

“People are afraid to face how great a part of life is dependent on

luck. It's scary to think so much is out of one's control. There are
moments in a match when the ball hits the top of the net and for a
split second it can either go forward or fall back. With a little luck, it
goes forward and you win … or maybe it doesn't, and you lose.”

Brazil, beyond the predictive power of social science….

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