ABSTRACT
Are courts mere “mouthpieces of the law” in the traditional Civil Law formulation of the separation of powers, or are they powerful agents “making law” following the Common Law view (and “agents” of whom or what)? How shall we confront this basic ambiguity for purposes of rule of law (ROL) work? While judicial reform as institutional reform lies at the heart of much ROL work, particularly in Latin America, surprisingly little attention is paid to the practical results of an “empowered” judiciary. Perhaps in Latin America the hidden issue may be the assumption that courts merely apply “norms” almost mechanically (a modern doctrinal version of those selfsame Civil Law views), without examining the “agents of whom” question from anything approaching a public choice or instrumentalism position. The problem seems to lie in institutional ROL approaches of improving the judiciary by adopting a “build it and they will come” attitude, which may or may not work in practice. The difference is already visible in this book in the contrast between Chapters 16 and 20.
