What is a legal transition? Thoughts on legal change amidst a political transition (Brazil, 1980-2020)

AutorMaria Pia Guerra
Páginas45-65
What is a legal transition?
Thoughts on legal change amidst a political transition (Brazil, 1980-2020)
Maria Pia Guerra
1. Introduction; 2. How the literature on transitions still shapes legal studies; 3.
The autonomy of the political, legal, and institutional spheres in current studies;
4. Legal transitions—rethinking the autonomy of the political, legal, and institu-
tional spheres; 5. The Brazilian studies on legal transitions; 5.1. Social studies;
5.2. Institutional studies; 5.3. Legal history of doctrine and legal theory; 6. Final
remarks
1. Introduction
In the last decade, social scientists from all over the world have sought to
    -
search has addressed global phenomena such as the judicialization of politics,
the politicization of the law, the empowerment of constitutional courts, and
the effects of these rearrangements of power on contemporary democracies.
As far as Latin America is concerned, local studies have been in line with
global research trends. However, they have also, albeit less explicitly, estab-
lished roots in another theoretical tradition—the tradition of transitology—
embracing both its weaknesses and its qualities. They have done so by assum-
ing that Latin American countries must be distinctly “recent democracies,”
perhaps poorly consolidated ones, against which there may be a threat of re-
turning to the formerly authoritarian state.
This paradigmatic link to transitology has led to two consequences. On
the one hand, some of these studies of the Latin American context maintain
substantive commitments to political elites and liberal institutions, with lit-
tle transparency about those commitments. On the other hand, because the
studies have been based in neo-institutionalist theories of political science,
they have recognized the relative autonomy of institutions—a concept that
has its advantages for understanding the complexity of the contemporary
-
zations in the legal system. The law, here, has continued to be subordinated
to the instrumental or political use that is made of it.
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MARIA PIA GUERRA
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This article aims to contribute to the debate by analyzing the concept of
“legal transition,” broadly understood as the major changes to the legal sys-
tem in a context of intense political and social transformation. This concept,
employed by authors working on courts in Latin America, encompasses both
transitology’s weaknesses and merits. A methodological clarity about its uses
may help the researcher to better direct her lens of analysis, both by revealing
the substantive commitments that may be included in the theoretical frame-
work and by detailing the conditions under which it is possible to refer to
institutional autonomy or to legal autonomy.
As we will argue, not all political or social pressure results in legal change.
The system of law translates, or processes, in its own terms and times what
  
        
relative autonomy of political organisations, albeit interesting, should not
be employed without mediation to research on legal organisations, as some
scholarship has done.

of transitology in recent studies of law and courts in Latin America. The sec-
ond follows the twists and turns related to the limits and possibilities of this
theoretical framework to develop a concept of autonomy that is functional
for legal studies. The third builds on the thinking from the previous topics to
carry out a survey of the state of the scholarship on legal transitions in Brazil.
2. How the literature on transitions still shapes legal studies
During the last decades of the twentieth century, social scientists pro-
      -
          
O’Donnell, Phillip Schmitter and Juan Linz. Their aim was to analyze the
more than thirty countries that have changed their political regimes since
1974, moving from authoritarianism to democracy. Thus, the researchers in-
tended to develop conceptual tools for comparative studies of the third wave
of democratization.1
   
of studying the conditions for overcoming authoritarianism. However, we see
its main theoretical concepts still being employed by transitional justice and
1 See O’Donnell (ed.) (1986); Huntington (1993); Linz/Stepan (1996).

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