Acceso usuarios
Jorge Contesse
In Ruling the Law: Legitimacy and Failure in Latin American Legal Systems, Jorge Esquirol analyzes the legitimacy (or lack of legitimacy) of law in Latin America through what he calls two “legal fictions”: the fiction of “legal Europeanness” and the fiction of law’s failure. According to the fiction of legal Europeanness, “national law in Latin America is European in some fundamental way” (p. 1). Law’s failure, on the other hand, states that Latin American law “fail[s] to operate as contemporary law should” (p. 1). The two fictions, Esquirol argues, dominate the analysis of Latin America law in ways that are both descriptively inaccurate and prescriptively ill-interested. The notion of Latin American law, therefore, suffers from a serious misconception which calls for a fresh look at what commentators and practitioners superficially call “Latin American law.” Esquirol’s meticulous analysis shows how legal actors—from lawyers to academics, international arbitrators, and promoters of development strategies and legal reform—use these ideas to advance their singular positions. Those seeking to promote legal reform emphasize how the law in the region fails: they disseminate the idea that Latin America is a region plagued by corruption, inequality, and unfulfilled political and legal promises. Those who emphasize the connection of Latin American law with its European roots, by contrast, seek to show how Latin American courts are as well-equipped as their European counterparts to hear transnational disputes concerning U.S. actors and brought before U.S. courts. Esquirol shows with great detail how lawyers, judges, and academics (who often act as expert witnesses in U.S. court proceedings) highlight the European character of Latin American law or the failure of Latin American law depending on which position they seek to support. In so doing, legal actors argue in favor of one or the other fiction depending on contingent matters. Latin American law is both a failed project and the result of Europe’s civilized ethos.
