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NUMBER 1   JANUARY - JUNE 2004

    THE RULE OF LAW: A HISTORICAL STRUCTURAL PERSPECTIVE
    Marcos KAPLAN*

    Original Text (Spanish) PDF

    SUMMARY
    I. The classical model. II. The Latin American experience. III. Results and perspectives.


    The crisis affecting Latin American countries, including Mexico, turns the rule of law into a crucial part of the debates and decisions with regard to national development. The efforts to study the origin and development of the Rule of Law, its nature and implications, its scope and limits, its achievements and frustrations, as well as its possibilities of growth or consolidation and permanence by means of a needed historical structural approach, are thus justified.

    I. THE CLASSICAL MODEL

    The modern State and Law, and their synthesis and transformation into the Rule of Law, are characterized by their historical novelty and their separation from the law of preceding societies and civilizations. The Law of the Modern State is in fact characterized by having strong basis and a doctrinaire and technical structure, as well as by its complexity. It is seen as an unprecedented phenomenon portraying how the State limits itself by yielding to the rule of law as a condition of its sovereignty, legitimacy and consensus, and its effectiveness to fulfill diverse functions and duties.

    Furthermore, there is the social and political-juridical creativity of the modern State and Law; their flexibility and adaptability to changes brought on by the socioeconomic and political context; and their ability to transform themselves. The novelty and specificity of the Modern State and Law converging with the historical invention of the Rule of Law are revealed from and through their development in Western Europe, first as an absolutist State and then as a liberal State, and through the subsequent export of this model to be incorporated into most countries.

    In a Western Europe suffering the transition from the late Middle Ages to modern times, the Rule of Law is one of the outcomes, components and factors of the constellation composed of the national political system, capitalism, industrialization, the critical-rational culture, secularization, democratization as a process and democracy as a regime, all within the scope of a growing globalization of economy and inter-state order.

    The Modern State emerges in the 16th century in Western Europe in the shape of the monarchical absolutism of France, England and Spain. It plays an important role in the transition from feudalism to capitalism. It is both the producer and the product of new forms of economy and society, the arbitrator and regulator of the different conflicts between feudal forces (the aristocracy, the Church) and the new bourgeoisie (commercial, financial, manufacturing). There were also the conflicts between absolutism and the growing bourgeoisie giving rise to the democratic revolutions of the 18th century in England, the United States and France.

    An absolutist State provides itself with instruments and policies that serve the interests of the monarchy and, also, increasingly, of the new bourgeoisie. The Absolutist State, being served by a new bureaucracy of administrators and jurists, a permanent army, a national tax-system, and the new juridical order, centralizes power and imposes its authority upon fragmented authorities (feudal, urban, regional, ethnic and religious...). It does so by means of a known corpus juris that has exclusive and excluding enforceability, a judicial and a police law enforcement apparatus that has to operate within a context of pre-established rules.

    Therefore, the new state must justify and fully exercise its sovereignty, both inside and out, and achieve legitimacy and consensus by creating and strengthening its footing within the groups and activities that yield national wealth and power, and invariably by successfully confronting competition and conflicts with other States as part of an international economy and a growing inter-state system. By means of the new Law, the State establishes, above all, ownership and bargaining rights, their corollaries and projections, such as guarantees of security, stability and precaution, assuring thereby the rational possibilities of economical calculation, initiative, productivity, creativity, to and for individuals and groups, and national development.

    In order to do that, there is the assumption and need of first-class professional and specialized jurists in the service of the State. The monarchy adopts the Roman Law and establishes it all around Europe; its interpreters become its ministers and main representatives. Imperial jurists and royal legists provide the Empire and monarchies with the new legal system, as well as with the means of enforcing said laws and providing legal justification to violate them. An army of lawyers exalts the monarchical State and fights to destroy the obstacles for the expansion of the State.

    The Modern State is born to establish and impose law and order, as natural arbitrator and police, in favor of those with good standing in the social hierarchy and against subordinated and dominated ones. The state punishes or threatens to achieve obedience, uses torture and capital punishment on a regular or frequent basis, in the name of the common good. Violence instigated by the State and harsh treatment of its subjects "guarantees internal peace, highway security, confident markets and reliable supplies to cities, defense against foreign enemies and effective commanding of wars that occurred one after another indefinitely. Domestic peace was an incomparable gem (Fernand Braudel)".

    Admittance has a dual impact, both politically and economically, that corresponds to public law governing the relationship between the State and its subjects and to civil law governing the relationships among subjects. Within the political scope, the Roman Law of imperial legists and royal jurists favors the reorganization and development of the State as a set of centralized monarchical powers with constitutional demands. Public Law establishes the formally absolutist nature of monarchical and imperial sovereignty, an increase of public authority, the discretionary powers of the king, and his independence from the Church's authority. In order to do so, the separation of temporal powers from spiritual ones is sought and the emperor is considered not governed by the law, but above it. The Law gradually becomes a technical and intellectual instrument to carry out territorial integration and administrative centralism to be imposed on medieval privileges, traditional rights and private franchises.

    In the economic sphere, the Roman Law is received and readjusted to disseminate the capitalistic structures and relations both in the countryside and in the city, and the vital interests of the new bourgeoisie. Roman Law is in favor of unlimited private property, commercial manufacturing and agricultural and industrial trade.

    The right to ownership as a condition of productive investment and the accumulation of wealth is assured by providing security in the two aspects of the relationship between the individual property owner and the sovereign, and that existing between the community members themselves. The sovereign gradually ceases to exercise the right of arbitrarily making use of the wealth amassed by subjects that are gaining political and economical power. The king learns that it is easier and more beneficial to expropriate and compensate rather than to requisition; to take in the name of the Law or by legal procedure rather than simply taking possession; and to rely on regular taxes at fixed rates instead of levying for an indefinite amount when urgently required. Subjects learn to discuss aspects related to ownership among themselves through understandings rather than through the use of force and by entering into contracts between nominally equal parties instead of taking into account inferior and superior personal ties (David Landes).

    Institutional and juridical modernization not only destroys or dismisses hybrid structures and traditional and archaic bad habits, but also establishes new patterns and forms required to both strengthen the State and achieve economic growth. The need for legitimacy and consensus assumes and demands that there be lawfulness supported by acknowledging the existence of rights, interests, guaranties for a growing number of groups. The number and weight of interests, demands and pressures of these groups are also growing, not only as part of the development of capitalistic economy and bourgeois society, but also because they are correlated with the process of democratization and building democratic-liberal political regimes that lead to the Rule of law. New forces that favor the dissemination of social and political participation for as many as possible within the limits of the system are being ratified. The above is intermixed with the English, American and French revolutions, along with a wide range of democratizing, national and popular movements that express and project the inrush of new classes within the society and politics. There is a new movement unfolding, which, by trial and error, seeks to provide legal and institutional expression to democracy and ends up creating the framework for a Constitutional State, which requires it to be pervaded by elements composed of fundamental rights and liberties.

    The Rule of Law did not come out from nowhere, as something given once and for all. In the Rule of Law, the elements and products of collective invention and the creativity of classes, groups, institutions and nations throughout history come together. As of the 19th century it is possible to talk of democracy as a system that assumes, admits and even strives for members of society to have full participation in making decisions that affect them individually and collectively, in the most comprehensive and effective way possible. This ideal type may be portrayed in different regimes, assume diverse forms of government, and have different degrees of validity, validation and effective execution. Democracy, as opposed to autocracy, assumes and requires power to be exercised by a group of citizens that replaces the mass of subjects, and that formulates and employs a set of principles, values, purposes, rules and procedures.

    1. Popular sovereignty implies that supreme will and power of command, within and without, and even legislative power lie in the people of the nation, who exercise it directly or by means of elected representatives. Society and State are based on the acknowledgment and assurance of the exercise of the rights conferred to people as free and equal, subjects of civil and political society. For being citizens, and not merely subjects, community members have to be free from restraints that are not self-imposed by the decision of a majority and have to exercise the principle of equality. Power is justified by the emergence of citizens having rights and by the promised goals being carried out.

    2. Popular sovereignty is linked with the principles of the Rule of Law and the supremacy of the Law. The Constitution and the Laws structuring and governing the State, establish freedom, equality and other relevant rights. The State is the guarantor of the law, with regard to the validity of rights, even against the power of the State, and under the penalty of non-legitimization. The logic of democracy counters that of domination and autocracy.

    The symbols of the contract between the people and the governor, with reciprocal rights and obligations, entitle and authorize the citizenry to act directly or through their representatives; to take part in the State and control it; and to establish common goals that are compulsory for the government; to demand clear accounts regarding political and administrative management. Sovereign people can divest the government or the State of legitimacy or consensus, and may even rebel against them for a legitimate cause and change the form of government.

    The Rule of Law also implies that power cannot be identified with nor hoarded by those making use of it. The Rule of Law is not incarnated in the sovereign's physical body; it is not an empty place, subject to competition, dispute, and total and definitive occupation.

    The National heterogeneous State -according to Ralf Dahrendorf- is one of the greatest conquests of civilization. To date, at least, a new framework in which the rights of all the citizens may be established, that is, formulated and secured, has not been discovered. The monopoly of power by the National State is an essential assumption for the validity of civil rights, that is, the possibility of demanding them and having them respected... The heterogeneous National State is the condition that makes real liberties possible.

    Even though it is a necessary condition, it is not enough, since neither the Law nor freedom has given rise to institutions and powers that are capable of protecting the Law through which real liberties are established.

    Under the conditions of societies that are affected by diversity and conflicts (whether socioeconomic, ethnic, racial, religious, linguistic, domestic or international), the heterogeneous National State has to face on one hand the challenge of giving equal rights to unequal individuals, creating institutions inherent to democratic Rule of Law, if it wants to prevent the uncontrolled growth of antagonism and disputes that would threaten the existence of society and that of the State itself. On the other hand and reciprocally, rights and liberties require the state institutions to protect them, as controlled powers, being subject to rules, may be exercised responsibly during a given term.

    3. Thus, the Rule of Law may, or tends to, escape from any power that attempts to monopolize it and implement it to negate it. Human rights go beyond any already established procedure already produced, which contains in itself the demands of increasing reformulation. Always extensible, the acquired rights are called to support new rights. Human rights cannot be allocated to a given period; their role is not depleted historically in a definite clear-cut way and in serving a class, group, interest or power. Those rights do not stop questioning the established order, created interests, powers in force or established rules. They are based on demands criticizing and challenging social and political powers.

    Regardless of the intent of domination that underlies its origin and historical development, the cultural and ideological bases of the Modern State, with all its limitations (either inherent or contextual) are the search and fulfillment of human liberties. Some of these bases have passed on -through fights vindicating groups, sectors and nations- to the social and political reality. Because of the principles claimed, (humanism, pluralism, reformism) the Laws of the Modern State and the Rule of Law invite criticism of its flaws and frustrations. The laws of the Modern State and the Rule of Law allow amendments, improvements and progress. This vindicating and transforming potential of the Law is used to maintain already acquired rights and to extend and develop them in different ways and forms.

    4. A democratic State needs rules and procedures for citizens to participate in policy decisions and to answer questions such as: Who is authorized to make and apply certain collective decisions?, How?, By means of which instruments and mechanisms?, and What would their scope be? These rules and procedures refer to different aspects and levels:

    a) Legitimacy and effectiveness of the principle of citizenry to organize political society as a republic of citizens that are free and have equal rights, unaffected by preferential treatment or discrimination (immunity and privileges) and to enjoy political rights: participation, opinion, choice, and eligibility by means of voting.

    b) Free, equal and decisive suffrage for each and every citizen, with the same value.

    c) Free, frequent and periodical elections that offer real options between different candidates from competing parties with a view to alternation in government.

    d) Deliberation and decision-making in compliance with the principle of simple majority.

    e) Separation and balance of powers, with guarantees against the predominance of the Executive branch, in favor of independence, authenticity and efficacy of the legislative and judicial branches.

    f) Acknowledgement and guarantee of conflictive pluralism (individuals, groups, organizations, tendencies, alternatives), tolerance, free debate of ideas, mediation methods, negotiation, gradual renovation, reform, pursuit of progress with the least possible amount of violence and upheaval.

    g) Acknowledgement and guarantee of minorities' rights, including opposition to the State and its administrations, and the ultimate conversion to democratically legitimized majorities as part of the citizens' will.

    h) Establishment of the rights and liberties of all and for all, for their effective validity, not only on paper and in discourse, as suppositions and objectives that the State cannot govern or distort, as long as they serve to legitimize it, including the duty to protect against acts of force, abuse and excess of power committed by public and private figures.

    Due to its original nature and development within different areas and at different moments in history, the liberal democratic model and the Rule of Law show either achievements or failures, limits or new progress within a worldwide democratizing process that is not definitive and is vulnerable and reversible.

    The State and the Law are not simply products or manifestations of the socioeconomic infrastructure, or a passive instrument in the hands of a dominant economic and social class, simply exercising their policies. The State and the public elite never become completely mixed with the dominant socioeconomic groups or with the system as a monolithic reality for now and forever. Liberal State law has different possibilities. It incorporates principles and rules with potential favorable to human change based on what has to be, and what the emerging forces and trends might attempt to do, reinterpreting concepts to fit in with the prevailing reality and demands.

    The classical liberal conception has lacked specific criteria on the relationship between the State and the economy and society, as well as on defining the State's extent of action regarding society and the economy. Within such conception, and due to the separation of the economic affairs and the political affairs, of private and public, the State must not intervene in individual actions that, left free and operating in the market, may cause the private interest and welfare to coincide with public ones. The State is bound to limit itself to what is understood to be public (order and security).

    The same differentiation between State and society, between the political sphere, on one hand, and the economic sphere of free enterprises and markets for accumulating goods and profitability, on the other, binds the State to take part in and increase its duties and powers. It does so to introduce the preconditions of market economy and its growth, as well as to provide corrective and restoring measures that intrinsic inadequacies require, the negative effects and disruptions of a market incapable of adequately regulating the economy, society as a whole, as well as the socioeconomic and political conflicts that arise from such a situation.

    In addition to this and in order to be legitimized, the Modern State seeks to define itself to a greater or lesser extent as the protector of individual freedoms and goods, being also the bearer of rights and the source of sovereignty. Therefore, the State binds itself to provide safety and to lessen uncertainty. As a result of the democratic-liberal and social-egalitarian movements which go back to the end of the 18th century -which did not appear in Mexico and Latin America until the 19th and 20th centuries-, the protection of the State increases and diversifies: regarding civil rights (security, property) and civic rights (participation, representation, suffrage) and it extends towards the emergence of economic and social laws that are more and more numerous and diversified. Thus, the need and possibility of intervention from public power through positive actions appears. This can lead to public interventions and realizations that, on one hand, go against the interests and will of groups in dominating and privileged positions, and on the other, are loyal to the demands of keeping the promises (explicitly and implicitly) made by the democratic-liberal model.

    The structural tension that has always existed and exists in capitalism, between private-economic and public-private spheres, has allowed or imposed a reinterpretation of liberalism and of the Rule of Law.

    As occurred in Western Europe, liberalism accompanies and coincides to a certain degree with the democratic component and dynamism, but between each other, there are tensions, contradictions and conflicts that become evident in political doctrine and praxis. The dilemma of liberalism (economy) and democracy (politics) may be understood in two opposite ways.

    This dilemma could be solved by reinforcing conservatism to the detriment of democratization, with political authoritarianism and the strengthening of the State ensuring Law and order, and consequently growth and modernization. Autocracy does not dare mention its name; it is identified with the Law, democracy and the republic; it makes use of forms, instruments and mechanisms that allow it to proclaim that its authority comes from the people; it enacts constitutions and laws that it violates. Democracy is proclaimed the best principle of government, but when adapted to already-developed countries. However, democracy turns out to be premature and unsuitable, until the preceding stages of growth and modernization are achieved.

    The dilemma may, on the other hand, lead to more validity and a better use of the Rule of Law in order to have valid opposition to power, to means of class domination, government, and law enforcement, as well as to reform the Rule of Law and to increase awareness and the effective exercise of political and civil rights. In short, the advance of democratization is a prerequisite, a component and outcome of a comprehensive national development.

    The structural limits and trends of the prevailing economic system in the world, concentration of power in minority groups, and more or less strict hierarchical organizations have always opposed variable legitimacy and effectiveness and the contradictory and fluctuating display of the principles of freedom, equality and participation for all. This has resulted in the appearance of many different forms of inequality, injustice and oppression (economic, social, cultural, political), discriminating obstacles that restrict participation according to different criteria (census, education, sex, age, class, ethnic group, nationality, religion, ideology...); roads of escape from the legal effects of democracy through a set of solutions and authoritarian forms.

    In the 20th century, totalitarian and authoritarian parties, movements and regimes have tried to respond to the structural tension between economic privileges, democratic participation and the conflicts such tension generates among groups and institutions, and among nations. This happens especially between two types of symmetric and polar authoritarianism, and the political and ideological forces that aligned themselves under that wing. On the right, there is the German national-socialist regime established by the State-Party and its supremacy to preserve national capitalism and the fight for world hegemony by eliminating any manifestation of democracy and Rule of Law, control and manipulation of the masses, the imperial project and the economy of war. On the left, the Soviet-Stalin regime combines another form of State-Party with comprehensive nationalization and bureaucratization, absolute control over inhabitants, the use of an universalizing ideology, which resulted in irreconcilable hostility to the democratic Rule of Law in any of its forms.

    In response to the same challenge and totalitarian experiments, it can be observed over the last decades that in developed countries there have been proposals and attempts to extend and put democracy forward, but its progress and success have varied, and there have even been steps backward and stagnation. If instead of considering democracy a polished system, regime or formula, we consider it an on-going process, without imposing a single model or an inevitably predetermined purpose, and without a terminal, the idea that principles, rules and practices are extensible is thus renewed. Extension of political rights to attain full participation of the majority of the population in processes of forming and extending collective will is also restored. Extending aims at rights and spaces other than traditional ones; to the increment of the number of citizens, rights, their bearers and receivers (economic, social, cultural, politic), forms of association and organization and collective praxis.

    Demand for participative pluralism (social, ideological, political, ethnic, national, religious, regional, by sex and age) redoubles. Public opinion has greater weight. Diversification increases, as does the influence of political parties and social movements. The beneficent State is spread out. A combination of forms of representative and direct democracy is explored and demanded.

    All of this leads to rejecting differences and opposition to formal democracy and social life, to the individual and the society, to the citizen and the private figure. The political sphere is acknowledged as forming part of global society and what happens in civil society contributes to determine political decisions, actions and consequences. Democratization within the political sphere is not necessarily equivalent to the democratization of its outcome and contents nor to the effectiveness of a democratic government. Nor is it a guaranty against authoritarian tendencies and forms or against the possibility of despotism and autocracy.

    Therefore, actors, practices and democratic forms need to have wider social spaces that are now dominated by organizations strictly organized into hierarchies and bureaucratized by vertical-authoritarian models, within both the public and private sectors. Only thus can democratization cover the global area of civil and political society in the diversity of their spaces, forms, practices and coordination. This implies acknowledging all individuals' right to participate in the wide variety of their roles, functions and practices.

    The Euro-Atlantic model of State and of Law, and of State under the rule of law, so created and transformed, turns out to have been historically exported to be received, incorporated into and adapted to most of the nations in Mexico and Latin America, where it has had a troubled history.

    II. THE LATIN AMERICAN EXPERIENCE

    Since national independence and organization, national integration and national development models and projects of the most developed countries of the time, in addition to forms of economy, society, culture, State, democracy and Law, have been imported to Mexico, as well as to other Latin American Countries, by ruling classes and dominant groups, to later be adapted and internalized as their own. They have also anticipated the premises and bases they should have had and the contents and outcome they intended or promised to achieve.

    Incorporation into the global economic-political system and global patterns for the division of labor turns them into imposed and unsettled frameworks of reference, with the consequent danger of imbalance and backwardness. Internal reorganization of the countries involved is imposed and accepted as a passive adjustment to external coercion, in order to facilitate their incorporation into the worldwide economic-political system, domestic growth and modernization, and the establishment and continuity of the new system of domination.

    Therefore, the prerequisites, elements and results of growth, modernization, social change, the national State, democracy, culture and science are not produced internally. Latin American countries have not had the equivalent of the Renaissance and the Reformation, the Age of Enlightenment, the bourgeois spirit and the capitalistic enterprise, the civil society, the democratic revolution, the principle of citizenry. Forms of modernization, the National State, democracy, the rule of law have always been anticipated projections and promises that have not been or have been partially fulfilled or kept, because of the lack of real prerequisites, elements, projections and mechanisms of reinforcement and extension. Specially, the prototype of democracy that public elites bring in and apply anticipates reality and democratization; it will produce itself in successive waves, with ebbs and flows, inclusions and exclusions, rises and overflows, readjustments and stabilization, recovery and decline.

    The established legal-political models are Western European and American, consisting of an independent, centralized, republican, democratic-representative State, under the rule of law, the separation of powers and the solemn establishment of the individual and constitutional rights of the civil and political spheres. The model is established in the form of a liberal-elitist-oligarchic State, the legal and institutional forms of which overcome forces, structures and the dynamism they partially reject, but they also partially refract and deform the political-legal forms of the new system. Constitutions and Laws are formulated and obeyed, but to a greater or lesser extent they are violated or else they are formulated on modalities that stray from their prototypes and doctrinaire justifications. Therefore, from the onset, there are ambiguities and oscillation between what is and what must be, between form and content, the proclaimed intention and the result produced.

    The State believes to be legitimated by popular sovereignty that is secularized, centralized, republican, democratic, representative, under the rule of law, with the separation of powers and establishment of constitutional and individual rights within a civil and political scope. On the contrary, insertion that depends on the international economic and political order, the concentration of power in native and foreign minorities and the isolation of majorities restricts the validity of the principles of State autonomy and centralization, popular sovereignty and representative democracy.

    The ruling elite inherits a society that does not have traditions or forces derived from democracy, capitalism, industrialization, generalizing diversification or a civil society. The ruling elite assumes power without structural changes, without large social bases, legitimacy or valid titles; it has a usurped representation; the ruling elite consolidates its domination obtained by winning wars, as well as by creating an internal order, the State and the national incorporation. The ruling elite's domination is based only on force, caciquism, establishment of leaders, the gradual achievement of a consensus imposed by the minority upon the majority. The participation of the majority is blocked. The execution of the liberal-democratic principles is put off indefinitely.

    The founding elite of an inexistent or dormant nation with an absent or passive people, the State, the political regimes and administrations lack legitimacy to express themselves and to act with common will, political decision, legislative power exercised by and for a plurality of groups, organizations and institutions. It is not a national sovereign power, with an authentic origin and the capacity to give support and validity to the Constitution.

    Organization into elites and oligarchies in the social and political sphere is mixed with the adoption of an economic, social and development model that inherits, expresses and co-produces a strongly polarized and rigid system; a system out of balance because of differences of power and wealth; a system fractured by tensions and conflicts of all sorts. Civil society does not exist, or is just being outlined, as a network of social figures, communities, organizations, institutions, practices; a civil society for self-protection and development; with participation and control over the State and the administrations.

    Society is characterized by flawed structural differentiation, few or hardly any autonomy of subsystems, weakness of secularization and of public opinion.

    The minimal degree of the separation of powers becomes apparent because of limited diversification in public figures, the low degree of structure and institution specialization, the limited potential these structures and agencies show for taking on clearly determined activities. Public figures and Institutions assume and become confused with each other in their different roles and activities that have but slight differences between them. The slow and incomplete secularization leads to persisting traditional relations, rules and principles, and contributes to the accumulation, and confusion of powers, as well as to their personalization.

    Primary groups (through kinship, ethnicity, territory, religion...) predominate for a long time. They mutually reveal themselves as conflictive and exclusive. It is hard to organize them into organic groups; they lack autonomy; they can be manipulated as patrons of oligarchic and elitist groups. Intermediate groups and secondary organizations (corporations, unions, parties, cultural and ideological organizations, public opinion association...) do not exist and if they do, they are weak and grow slowly. The lack or non-existence of these groups hinders or delays the establishment of associations with different origins and a large superimposition. It also hinders or delays incorporation into collective groups and currents of opinion; mobilization at the service of national causes and objectives; the provision of support and control for States and governments.

    The fragmentation of opinions and the public, predominantly composed of a government-oriented and oligarchic opinion, along with other subordinated or underground opinions and public, is revealed in the heterogeneous nature of views, ideas, principles and rules with a low degree of incorporation. There are no forms, solutions, rules and institutions in the political game that can be understood, accepted and applied by all or by the majority.

    The organization into elites and oligarchies, control of means for decision-making and power in the hands of a few allow to combine respect for democratic-liberal forms and the practical separation of its principles, applications and effects. The State produces and is produced by a political system that has certain features of a unifying autocracy, a democracy with restricted participation or a hybrid of both. This conditions and even determines the features and scope of the political constitutional regime, as well as the submission of the State to the rule of law.

    Formal separation and balance of powers are distorted by the predominance of the Executive branch to the detriment of the Parliament and the Judicial Branch. The Parliamentary regime is not adopted or fails (except in the case of Chile between 1891 and 1925 and in Imperial Brazil). The Presidential regime is usually adopted. It leads to a presidential government (whether legal or dictatorial) and reinforces tendencies towards centralization and authoritarianism, accumulation and confusion of powers and functions, the personalized and charismatic incarnation of power, a paternalistic, arbitrary or despotic exercise of power and the existence of a dominating party (or in fact the only one).

    With a centralistic and quasi-absolutist notion of the Executive Branch, the president and his staff choose and control members of parliament, governors, party leaders, senior officers, judges and groups of intellectuals. All of them, in turn, contribute in handling voters and elected candidates. They also validate or carry out the decisions of the power elite they belong to.

    The Parliament has a weak role, subordinated to the Executive branch, with the exception of the senate as a stronghold of regional oligarchies. The Judicial branch, organized according to the American model, makes limited and cautious use of constitutional control. It is timid and indulgent towards other powers; it resists judging and declaring acts and laws null and void, and limiting its discretionary power; on its own initiative, it also declares its incompetence on political matters. The Judicial branch accepts the delegation of powers in favor of the president and extensively interprets presidential faculties and progress over public liberties and local rights.

    Emerging federalism from constitutional texts and transactions and agreements made by groups and regional spaces further evolves to centralization and Unitarianism of fact as a result of breaches in interregional balances and the concentration of power in the federal State. Most countries adopt a Unitarian regime. The municipal regime limitedly acknowledges and scarcely validates local governments and liberties.

    Constitutional and individual rights -above all, and with regard to their text and compliance- make reference to institutions and practices of liberal capitalism (property, corporations, market, agreements) with the adaptations and restrictions resulting from their incorporation into historical-structural realities that differ quite a bit from those that originated and developed them. Political and social and economic rights are ignored or underestimated and are deprived of recognition and validity. Universal suffrage is restricted by the law and by socioeconomic and political influences. Labor, union and social rights just begin to be acknowledged as of the early 20th century, however they are highly limited regarding beneficiaries, problems and scope of influence and application.

    The constitutional rights emerge from and work in all the aspects related to relations between Latin American countries and the metropolis, those among public elites and oligarchic groups themselves, those between foreign groups and governments, and, later on, those among the urban middle social strata. These rights are not, or almost not, applied to relationship between elites, oligarchies, and members of popular groups, or between modern centers and backward regions. Most of the population lacks effective protection from the State. Citizenry of fact is more reduced that that of law. Primary relationships are maintained or deteriorate (semi-slavery, gang laborers, sharecropping, dependency on debts, derived forms of patronage and the practice of obtaining votes with promises of government posts). They combine with new forms of domination and exploitation derived from growth, modernization and subordinate incorporation into the international system dominated by powerful nations. The change from subjects to citizens is achieved late and remains incomplete, as is their involvement in the decision-making processes through voting, parties, intermediate groups and means of information and communication.

    Political participation is suppressed or limited for most of the population, due to the convergent effects of socioeconomic structures, the wide variety of forms of violence, legal devices and electoral restrictions. Naked coercion is combined with a more passive than active consensus.

    For a long time, the electoral system shows the opposition to universal suffrage and the power to restrict its effective validity, by means of formal and technical resources. In addition to the structural restrictions, restrictions imposed by socioeconomic and cultural status (census, education), sex, ethnic group and nationality appear. The conditions and outcomes of the electoral system, as well as elections themselves, are manipulated and altered.

    The party system is characterized by the supremacy or nearly exclusivity of the party composed of well-known individuals, a conglomeration of clans and factions that assure the management of the political machinery and the State, with regard to national and local affairs. The governmental apparatus is the sole formal and feasible party. Both the government and the party are identified as an instrument of public and oligarchic elites; they support the president, his staff and the circles surrounding him; these elites are structured and ruled by the government and by the party. The regime of a dominant or single party is preferred, since this party concentrates power and controls other groups and structures. The appearance and growth of opposition parties is limited by their slow emergence and limited capacity for organization, as well as by the little awareness of intermediate and dominating groups, subordination and marginalization of the masses and immigrants; the quasi-monopoly of intellectual groups by the public elites and oligarchic groups, and the rigidity of the political system. All this limits the appearance and the capacity for diffusion of the political counter-elites with an alternative project, the capacity for organization, diffusion and influence. Opposing parties begin to appear as forces of criticism and resistance to the regime, rather than providing an independent direction and proposing alternatives and options. These weak and intolerant opposing parties do not constitute a serious threat for the ruling elites and dominant groups. The ruling elites and dominant groups are not obligated by a real challenge to change themselves or their politics; they can compete and fight among themselves without having negative repercussions either against themselves or the system.

    Therefore, the constitutional and legal regime is formally valid and validated; it holds the first level of legalized legitimacy, but a lower level of legitimacy for its efficiency. Accepted and lived by public elites and oligarchies, it is on the other hand, imposed upon classes, groups and regions that remain outside of the constellation of power. These classes, groups and regions accept it passively or resist and reject it. The regime limits its efficacy as a formalist and isolated order. In effect, constitutionalism and legality tend to restrict themselves to that which is part of regulations, formulas and rituals; to transform themselves into fetishes in order to preserve themselves and to remain motionless; to thus dissociate themselves from forces, structures and dynamisms of the society. Institutions and legal experts become blind and deaf to entire dimensions of the national reality, new problems, dissonance and tensions between formal and efficient legitimacy, as well as to the demands for change.

    III. RESULTS AND PERSPECTIVES

    For the most part of the history of Latin American countries, the Rule of Law is only established as a pure form or only achieves a latent existence or partial validation and validity. However, over the last decades, considerable progress has been made, even though this is not enough. The need for a sovereign and democratic State under the rule of law is being posed more and more, due the impact of national or foreign forces, conflicts and changes as inherited and current challenges. Requirements arise from incorporation into the globalized economy and the interstate system, of the growing interdependence between them, and the impact of the international crises and their ties to internal crisis. Insufficiency and regression of economic growth and the lack of social development, accrued social debt and demands of restoring and progress increase conflicts as well as generate participative and democratizing dynamics.

    These challenges, within the context of new and inherited restrictions and frustrations regarding development, open up new possibilities (not misfortune) of recession and decomposition.

    Within the economic sphere, the inadequacies and difficulties of economic growth become evident in polarization and in the fight for the distribution of national income. They also appear in the proliferation of unproductive, speculative, parasitic activities, and in old and new forms of corruption and criminal activity.

    Groups, structures and the social fabric deteriorate and are lost as essential participants and elements for national development. There is an increase of forms of psychopathology, individual destruction and social disorganization; there are disputes, a slackening personal and social bonds of solidarity and responsibility, criminality, insecurity and violence.

    Cultural patterns that overrate economic success and power in all its forms, by any means and at any price, achieved by speculation, corruption and by using the new forms of organized crime, predominate. Violence, aggressiveness and destruction as a way of acting and solving problems is privileged and urged on. All of this appears to the detriment of political and legal knowledge of modern and democratic indicators.

    Within the political sphere, the tendency towards dispute is reinforced, as well as intolerance regarding differences and a tendency to confrontation. The need for open and flexible rules in the social and political game are scorned, to the detriment of negotiation and agreement practices, the achievement of consensus in favor of purely coercive solutions and authoritarian styles.

    Within this context, the Rule of Law is presented as a precondition and an element of rationality, stability and prevision, essential to international integration, growth, modernization, social development, democratization, sovereignty and effectiveness of the State. The Rule of Law is necessary for internal growth and inevitable participation, with autonomy and competitiveness, in processes of international integration.

    The Rule of Law is also necessary for the adequate management of problems, conflicts and processes of change in order, legality and institutionalization. The Rule of Law makes it possible for the State to legitimize itself and be efficient; it makes consensus possible about the models or projects for economy and society, the politics and development that the nation may adopt in the end.

    The Rule of Law can and must develop itself, as part of a constellation that is also made up by establishing a new alliance of the main elites, classes, groups and institutions, and its proposal of a new national development project. It can and must combine the search for economic growth in harmony with social development; the admissibility and promotion of essential social changes to have more freedom, justice, equality and participation.

    The creation or reinforcement of legal and political forms and practices, participation, power, authority, legitimacy and consensus is required, as well as a sense of democratization that promotes citizen participation, political and legal awareness, the real validity of the institutions that are part of the Rule of Law. That would contribute to internal articulation and national consensus in favor of development, democratization, and a sovereign, representative, democratic, legitimized and efficient State.

    A national development policy should redefine the relation between the State, the economy and the community; among the three sectors (public, private and social); and between state planning and the market in order to be able to combine them and harmonize them in processes of convergence and mutual effort.

    The State must maintain or take on a strategic and ruling role to promote and manage collective interests and national development, from and through a combination of democratic planning and the market; the public, private and social sectors, as well as of the justification of State interventionism in order to achieve authentic ends, results and consensus.

    The intervention of a State with economically and socially effective powers, resources, and fields of action, and that observes individual and collective rights, initiatives and creations, must be combined with positive contributions from private companies and the market, with increased participation of groups, institutions and individuals, of the community as a whole, in and about the State and in every aspect and scope of social and political life.

    Democratic Rule of Law is identified as such by a recovery and importance of the State and the democratic-liberal law, by universalizing and optimizing the principles that assume the interrelated transformation of the society, the State and the judicial regime. Political and democratizing emancipation are a necessary condition, however, they are not enough for the emancipation of human beings, which requires other dimensions, assumptions and elements.

    A first dimension would be the establishment and increase of the human rights and liberties of all individuals, the guarantees of their validity, constituted as suppositions that the State cannot invade nor distort, and the respect of which provides substantive legitimacy.

    This implies having a sole law for all, a same way of applying it; the right to full access to information, to free study and effective participation in decision-making concerning the activities in which an individual may take part or that may affect him or her. It assumes the right we all have to be different and to differ, to espress oneself, to criticize and to oppose something.

    It also implies the acknowledgement of the freedoms of speech, criticism, opposition and conflictive pluralism in general. This condition requires free, equal and decisive votes from all individuals to elect legislators, governors and administrators, delegates and managers of social interests.

    Political parties continue to be acknowledged within their multiple functions, but they coexist with other centers of powers and interests, other forms and procedures of expression, harmony and agreement, and conflict management (movements, socioeconomic councils, etc.).

    This first dimension is not conceived in purely individualistic terms. It assumes and demands a redefinition of the limits and relations between the State and the community. This dimension should be recognized as a network of forces, relations, structures, and processes that add, articulate and mobilize individuals, groups, communities, organizations and institutions defined by a range of membership criteria (age, sex, kinship, neighborhood, recreation, culture, ideology, region, ethnic group, nation). It is a set of autonomous ways of organization and collective acting, from and for its creation, protection and development. Civil society originates or may originate claims, and could be the arena for conflicts that the political system and the State should fulfill and solve.

    It is equivalent to a network of spaces and forms of association, organization, mobilization for social forces that lead to political participation.

    The increase of groups (of interest, pressure and power), structures, forms and networks of direct solidarity and mutual assistance, the ways of mutual acceptance of needs and the way to fulfill such needs, goods and service suppliers, the poles of local initiatives: all this diversifies the transversal forms of sociability, individual belongings and participation. Society approaches itself, it recovers itself as well as its potential; it becomes autonomous and dynamic, while expanding people's freedom.

    The components and forms of the civil society may assume functions and duties that contribute to set the conditions for progressive change, comprehensive democratization and development. Such components and forms may favor expression and fulfillment of needs, provide sources for obtaining resources and powers, and be the basis, the starting point and operation for projects. They provide alternatives to the situations of fragmentation, anomy and alienation created by society, the market and the State. They reduce and control anxiety, dependency, passivity and apathy because of the availability of centers and spaces for shelter, self-help, defense, resistance and progress. They develop a flair for autonomy, ability, self-confidence and management of their own life (individual and collective). They generate new authorities, lifestyles, principles, rules, ways of socializing and human types. They give rise to and renew forms of political awareness and action. These contributions for the present, insofar as it is possible, reduce vulnerability to social and political decline. They reinforce the ability to achieve administrative independence within public, social and private institutions in order to integrate civil society and redefine its relations with the State.

    Society is thus rebuilt and founded through a global and complex process of free dialog and agreement, without external coercion, from the bottom to the top and vice versa, among all the inhabitants, in all aspects, roles and functions (producers, consumers, citizens, world and life enthusiasts), in every sphere of existence. This takes place by means of and through a gamut of forms of participation, representative and direct democracy that may contribute to lower or exceed the contradiction between the trend to concentrate power in enormous apparatus and the participative and democratizing drive. An ascending scale of participating structures may incorporate individuals, groups, social spaces, activities, local and national regions to culminate in the State, and even dialectics between democratic planning and the market, and among public, social and private sectors.

    A second dimension is given by the supremacy of the Constitution and the Laws, as a redefinition of the legislative power, the expression of the public will created and expressed under the terms and conditions of democratization, and through the mechanisms of popular sovereignty and participation. This supremacy exercises its power over the State, the officers and institutions that belong to the government, the administrative and repressive apparatus, the legislative process and the judicial branch.

    The democratic system and the Rule of Law should be, to a greater extent, a plurality of "different decision-making agencies", the activities and relations of which should be defined and regulated. That is the origin of the crucial role of law as a "regulating agency: an institutionally specific set of organizations and agents, treatises and practices that operate to define... the forms and limits of other organizations, agents and practices."

    The third dimension refers to the creation of conditions to prevent the concentration of power, as well as tendencies of authoritarianism, despotism and totalitarianism. The above requires and demands, on one hand, an outline for the separation, distribution and balance of powers working independently but together.

    On the other hand, it also has to do with promoting decentralization to a certain extent that does not lead to the too visible submission of a market manipulated by corporate bureaucracies, and, on the other, favors a more flexible society that redefines relations between the State and civil society. This implies a decrease of claims for State intervention; the rejection of bureaucratization, and the rationalization of the management of its main functions, services and units; decentralization and rapprochement to producers, consumers, users and citizens; the transfer of public services and activities of collective and sectorial interest to groups, associations, non-public institutions of civil society (in aspects related to production, administration, procedure and even disputes). Such democratizing poly-centrism of power contributes to raising walls to both State political-administrative authoritarianism and unrestrained capitalism; to the imposition of responsibility and the decrease or suppression of the arbitrary nature of government and the administration, as well as to the plundering and predatory style of large private enterprise; the real validity of behavior in compliance with the Constitution and the Laws, under strict judicial and social control.

    Based on this perspective, parliament is both maintained and transformed to go beyond its limits and to be adequately incorporated into projects of comprehensive development, democratic society with full participation and the Rule of Law. It is, at the same time, the central legislative agency; the guarantee of liberties (civil, social, political); the representative of components of civil society; the seat and forum where interests and conflicts can be expressed, discussed, and decided to a certain degree, in compliance with the rules of the democratic game.

    Still limited with regard to its validity, effectiveness and scope, democracy, even in its current form, should be transformed, combining the institutions, forms and procedures of a representative democracy with the different degrees and forms of participative democracy.

    A democratic and independent judicial branch is essential to preserve the social and individual rights, liberties and laws proclaimed by the Constitution and the Law, and most of all to have real validity against distortion, mockery or violation by public and private powers. There must be social institutions that uphold public and individual rights, preserve democratic government, defend the acting capacity of certain agents and limit the activities of others. Political autonomy of personnel and judicial bodies -such as a democratically elected legislative body- is necessary. There should be political autonomy within decision-making areas, in order to prevent attacks against individual rights and democratic governments. Rulings issued by the Courts should not be directly subject to the intervention and pressure of the Executive branch or its apparatus, nor to private power groups or new forms of organized crime. In this way, it will be possible to reduce or eliminate present and future excesses of political power, attain control of the constitutionality of laws and their enforcement and control the legality of policies, decisions and acts of other powers.

    In turn, all of these should be an essential condition, a component and necessary result of a new democratic culture. A democratic culture implies rejecting demands of unanimity of popular will to legitimize a democratic government. It acknowledges the necessary diversity of opinions, information, options, solutions, goals and means. It accepts uncertainty as to interpretations, assessments, decisions and political fulfillment; openness to the latter; public debate of significant issues in multiple forums; tolerance to parties and governments other than our own, as well as to their policies.

    Institutions that control abuse of political and private powers are only effective if there is an ideological commitment on behalf of social and political leaders and the social groups which consider themselves not subjects but citizens with these instruments and mechanisms of democratic regulation. The principal social groups must respect and strengthen the institutions intended to prevent political authoritarianism and despotism in order to assure their survival and viability. Political and legal controls must have social bases and forces. Social and political pluralism is essential for the well-being of democratic political institutions. Plurality of political and independent social units can defy potential or effective abuses of State power, as well as those of private power, and can prevent the concentration and centralization of power in small elites, groups, clans and public-private mafias.

    The purpose and effort for confirmation, reinforcement and development of the law, for the exercise and perfection of law enforcement and administration of justice must not be limited to a desired ideal that is unreal and disappointing, a double discourse or a pure form of limited or uncertain application.

    Law and justice can and must be introduced in the consciences and practices of individuals, groups, organizations and institutions. They can and must be reevaluated and become a need and a demand for the significant sectors of society and the political system. They can and must exert influence and produce collective repercussions of considerable potentiality.

    Assumed as a reality, as a step towards awareness, as a will for fulfillment, validity and effectiveness, law can become the basis and axis for everyday life, private and public, for activities and projects, for desires and fulfillment, for individuals and groups, for organizations and social institutions. It must be a flexible and effective instrument for the creation and development of structures and practices which contribute to giving shape and content, rationality and order, stability and security, without harming permanent dynamism, to the transforming forces and the progressive changes which are revealed as necessary and convenient for the interests and objectives of the nation, of the groups it is composed of and of its State.

    Democratic Rule of Law is not questioned as to its existence as such or its functions and assignments in the main spheres of economy, society, culture and politics. Its democratization, on the other hand, and the redefinition of its relations with civil society converge in granting it legitimacy and consensus, increased capacity for decision and action, greater flexibility and effectiveness. The democratization of society and of the State implies institutionalized mechanisms for the organization, expression and influence of all inhabitants and main figures. This in turn creates and promotes the democratic discipline required so that the new democratic Rule of Law, as the political and legal crystallization of the power of the people, is in better conditions to contribute to the search and attainment of growth, modernization, comprehensive development, and participation in large areas and international blocs, as well as in emerging world economy and politics. All this can and must be given as the result of independent governance and with full participation of majorities and minorities through the amalgamation of State and civil society, of planning and the market, and of the public, social and private sectors.

    * Researcher at the Instituto de Investigaciones Jurídicas [Legal Research Institute].

 Copyright 2012 Instituto de Investigaciones Jurídicas, UNAM