Economic reform and judicial governance in Brazil : balancing independence with accountability

Abstract

Conventional wisdom on judicial governance posits that an independent judiciary is the single most important prerequisite of the rule of law. However the case of Brazil demonstrates that this is not necessarily the case, as there exist tensions and trade-offs between independence and accountability. The democratic constitution of 1988 clearly succeeded in isolating the judiciary from political interference, thus enabling it to perform its role as an institution of horizontal accountability in particular through the judicial review of executive decrees. However, Brazil's unrestricted independence has progressively become a hindrance to effective economic governance, a policy area in which the judiciary has especially asserted itself. Finding the right balance between independence and accountability is the defining challenge of judicial governance in Brazil.

The central question is whether the judiciary is too autonomous, lacking effective mechanisms of democratic accountability and external control. The paradox is that excessive independence makes it particularly difficult to reform the judiciary. This study assesses the governance of the judiciary in Brazil and its impact on economic reform. It argues that the challenge of judicial reform resides in strengthening the countervailing mechanisms of accountability and external control to enhance the judiciary's social responsiveness and political responsibility.