In an interview with Editora da Unicamp, author Celly Cook Inatomi talks about the existing approaches in studies on the North American Judiciary and the advantages of using different analyses.
Political analyzes of the Judiciary: Lessons from political science North-American is one of the most recent releases from Editora da Unicamp. Celly Cook Inatomi, PhD in Political Science, explains the different approaches to this field of study, which vary according to the dimensions of each research, classified into individual, structural and institutional dimensions. In this interview, the author discusses the differences and similarities between the North American and Brazilian systems, explains what is innovative about the book for legal research, and comments on her experience in writing it.
Unicamp publisher: In the book, are presented possible ways of politically analyzing the North American Judiciary. What are the main lines of analysis, from your perspective?
Celly Cook Inatomi: In the book, I classify analytical approaches based on the dimension of analysis that they emphasize, which would be: the individual, structural and institutional dimensions. What does that mean? It means that I separate the approaches depending on the "place" from which they see politics in the actions of the Judiciary. Individualist approaches say that politics is located in the actions of judges, and that we should try to understand their interests, values, ideologies and political alliances. Structuralist approaches, in turn, say that politics lies in the function performed by the Judiciary in a given society, generally pointing out its deference to the capitalist order. Institutionalist approaches, finally, say that politics must be analyzed considering the political-institutional limits on the action of judges and other jurists, while judicial institutions have their own history and autonomy.
One of the objectives of the book is to show that, although it is possible to see these lines of analysis well demarcated, we also find some works, authors and approaches that carry out multidimensional analyses, that is, that seek to work with two or three of these analytical dimensions at the same time. I want to show that, to carry out a political analysis of the Judiciary, it is necessary to consider the relationship between these dimensions, otherwise we run the risk of carrying out very hasty analyses, which do not address some assumptions and premises about the separation between politics and law. With this, I try to emphasize the importance of unknown works and authors, or those not cited as much in the literature, but which bring equally or more important contributions to our thinking about the political actions of the Judiciary.
Unicamp publisher: How can the aforementioned analyzes help Brazilian researchers?
Celly Cook Inatomi: It is good to remember that we already know a lot about judicial politics American, including importing analytical approaches to think about the judiciary and the justice system in Brazil, especially from the end of the 1990s. Among the imported approaches, the works on the judicialization of politics, attitudinalist approaches and approaches strategic. Thus, contact between American and Brazilian literature is nothing new for national researchers, quite the opposite.
These approaches were often taken uncritically. Much of the work that incorporated the theses of the judicialization of politics, for example, left something to be desired in conceptual terms for thinking about the relationship between law and politics, idealizing them as completely separate worlds. Works that incorporate behaviorist, or behaviorist, methodologies of analysis, such as those used by attitudinalist and strategic approaches, have left research lacking institutional issues and the political process, only accounting for judges' decisions in accordance with political ideologies, without thinking much about changes context and institutional characteristics that limit their actions.
Although the field of Brazilian studies is today much more developed than it was in the early 2000s and there is already a series of works critical of the indiscriminate import of theories, I believe it is still important to know the analytical approaches in depth. I think it is essential that we move towards the margins of the perspectives used. And this is important for two factors that I consider central: first, checking the work of authors who have made important criticisms of the theories, concepts and methodologies that we use; and second, to know many other approaches that addressed these criticisms in a more systematic way, giving us many more instruments to think about the Brazilian case itself.
For researchers already experienced in the theoretical and empirical analysis of the relationship between politics and law, what I am proposing may clearly seem very simple or very obvious. But, for younger researchers, I imagine that having a mapping of the different theoretical and methodological approaches to the Judiciary can help a lot, even more so when we make this movement of leaving the center of what is known to go towards what is not so known like that. And, in this sense, I would venture to say that the book can make a small contribution even to the most experienced researchers, in the sense of helping to think about the limits of our analyzes and what is left out of our explanations.
Unicamp publisher: What are the main similarities and differences between the North American and Brazilian systems?
Celly Cook Inatomi: This is a question that seems simple, but it isn't. Depending on the answers, which are very essentialist, you will find reflections on the way in which political analysis is carried out on such systems. The North American constitutional model served as a model for building a liberal and democratic political community, becoming, as Andrei Koerner says, an "export product" that began to shape ways of thinking and practicing politics and law constitutional almost everywhere. And here it was no different. Clearly, the American model has found partial applications, depending on the political conditions and characteristics of each country. However, it is possible to see that, in general, a pattern of not questioning the model itself as being something truly democratic was maintained.
When talking about the differences between the American system and the Brazilian system, it is very common to find explanations that focus on the legal heritage of the two countries, placing Americans within the tradition of common law and Brazilians in the tradition of civil law. That is, the American system would follow a legal tradition that is based, to a large extent, on jurisprudence or legal precedents, while the Brazilian system would follow a tradition that is based on positive and codified law. But it is known that, on both sides, these two traditions mix, creating a series of situations and questions about the political nature of the judiciary and the discretion of judges. And this last factor leads to another difference that is normally the subject of comparison between the two systems, which is the way in which judges are recruited. While, in the American system, they are recruited basically in two ways – by election or appointment, if not in a mixed way –, in Brazil, they are recruited through a public examination, with the exception of judges of the Federal Supreme Court who, as in the States United, they are appointed by the head of the Executive Branch.
We could also talk about the organization of the judicial system, the differences in the functioning of the two high courts in each country, the ways in which their judges decide and the institutional constraints that exist in their actions. But I believe that, regardless of the differences, some critical questions about the functioning of these two systems, especially in times of crisis like the current one, need to be worked on without idealization, either of one system or another, taking into account individual, institutional and structures that surround the performance of the judiciary in each country, historically and contextually.
Unicamp publisher: How can the book help undergraduate students to understand and analyze the judicial issues present in the Brazilian reality?
Celly Cook Inatomi: In the mid-2000s, when I started to get involved in research on judicial issues in Brazil, we already had some very important work carried out in the area, which are references to this day for those who study the justice system and the Brazilian Judiciary. Most of them are works that were strengthened especially from the end of the 1990s and that studied the capacity of the Justice bodies to implement the citizenship rights achieved with the 1988 Constitution. However, as it is a relatively recent set of studies At the time, it was natural that we did not find schools of thought or well-established theoretical concepts to assist and guide our empirical analyses, which were still very incipient. We imported some theses from the United States, as I mentioned previously, adapting them to our characteristics and particularities, but not always critically questioning these theses themselves.
Today, the scenario is quite different. Fortunately, we already have a large body of studies on the judiciary and the Brazilian justice system. Several themes and empirical research objects have already been covered, the field of studies has gained and consolidated important spaces for debate in large national research meetings (such as Anpocs and ABCP), as well as gaining permanent and optional subjects in the Science course schedules Politics across the country. We have also made a lot of progress not only in questioning imported theses, but also in formulating new concepts to think about the Brazilian case, such as the work of professor Andrei Koerner, who was my advisor during my undergraduate, master's and doctorate studies.
But, even with the advances already made in the field of studies, I always felt a lack of a kind of guide, which would help to think about the place occupied by existing works in literature in terms of the logic and form of the analyses; something more didactic that showed the different ways of thinking about the relationships between law and politics and the actions of the Judiciary. I missed a presentation of schools of thought and research that worked as an aid. The book I bring seeks precisely to make a didactic presentation of these different forms of political analysis of the judiciary, as an in-depth compilation of analytical approaches, concepts and methodologies that can be used by students to research the reality of the Brazilian justice system. Thus, the book seeks to fulfill a role that is simple and at the same time very important for the beginning researcher: to present theories and analysis methodologies and, above all, questions about them, to help you on your journey.
Service:
Political analyzes of the Judiciary: lessons from North American political science.
Author: Celly Cook Inatomi
Unicamp Publisher
ISBN: 978-6586253-40-5
1a edition, 2020
176 pages
Format: 14 21 cm x
