Judicial Reform as Insurance Policy: Mexico in the 1990s

Besides independence, judicial power also encompasses institutionalization and jurisdiction, the concepts required for judicial authority. Institutionalization refers to "the relationship of the courts to other parts of the political system and society" (Larkins 1996, 10) and relates to the legitimacy and stability of the judicial branch. An institutionalized judiciary is seen as the legitimate determiner of legal values. Judicial rulings are accepted and complied with by the affected parties and by those who hold power in the larger political structure.

Jurisdiction is the range of subject matter on which the courts may rule. It is a necessary component of judicial independence because it is the factor that gives independence its value. For example, if the court could make impartial decisions yet by law was permitted to make decisions on only a narrow set of issues, then the concept of independence would be meaningless in practice. The jurisdiction of an independent court envelops political, social, and economic questions. Judicial power therefore refers to insulated and impartial judges who make decisions on a wide range of issues based on expressed laws that are obeyed by political and societal interests.

Civil versus Common Law: The Role of the Judiciary

While the judiciary is the cornerstone of any legal system, it plays distinct roles in different legal traditions. In civil law traditions, such as those found in Western Europe and Latin America, the understanding is that the judiciary is to be independent-but to lack the power to declare laws unconstitutional. (see Merryman 1985 for an overview of civil law systems.) Civil law systems, whose roots developed in eighteenth-century postrevolutionary France, when society was wary of the power of judges, have sought Io limit that power. In civil law systems, sovereignty, or the power of lawmaking, is delegated by the people to the legislature, and tlieiefure unly Uie legislature may make laws. In such a system, the judge's role is limited to the application (extended over time to the interpretation) of law. Judges may neither make law (through precedent) nor unmake it (by declaring a law null and void). A judge's decision affects only the individuals involved and does not apply to the rest of the population. Thus, while a judge may declare a law unconstitutional in a particular case, the law itself is not invalidated, and it remains in effect.

In contrast to the civil law tradition, judges in common law systems have the power of stare decicis ("the power and obligation of courts to base decisions un prior decisions"), as well as the power of judicial review (the authority to declare a law or government act null and void should that law or act be found unconstitutional). Under common law, judges' decisions are said to have "general effects," meaning that a court's ruling applies to all citizens and political entities in the country. The extended effect of judicial decisions under common law allows for the total invalidation of the law; the law may no longer be applied and is therefore null and void.