Supporting Parallel Legal Systems as a Means of Improving Access to Justice in Guatemala

Parallel legal systems can and do exist within a single sovereign nation, and rural Guatemala offers one example. Such parallel systems are generally viewed as failures of legal penetration which compromise the rule of law. The question addressed in this paper is whether the de facto existence of parallel systems in Guatemala benefits the indigenous population, or whether the ultimate goal of attaining access to justice requires a complete overhaul of the official legal system. Ultimately, the author concludes that while the official justice system needs a lot of work in order to expand access to justice, especially for the rural poor, the existence of a parallel legal system can be a vehicle for, rather than a hindrance to, expanding such access.

Labor Provisions from NAFTA to CAFTA: Standards That Work, or a Work in Progress?

The emerging U.S. approach linking free trade to domestic labor protections is a practical framework on which to base substantive and procedural rights. Nevertheless, much more can be done in future agreements to improve these safeguards for workers in a way that will maximize the gains from trade and reduce the most harmful effects of development. In order to improve future agreements, the U.S. should expand access to consultations within the dispute resolution mechanism, focus complaints on core rights such as organization and bargaining, encourage the development of small independent unions in corporatist cultures, and incorporate the ILO into the dispute settlement process. Finally, the civil law systems of Central America and the Anglo-American common law system may have fundamentally different understandings of the rule of law. This difference in understanding may pose a significant disadvantage for developing or civil law systems entering treaties with the U.S., and should be better understood by both sides in order to maintain the credibility of the law and the effectiveness of the treaty.

Modern Judicial Reform in El Salvador and Brazil

A comparative assessment of the successes and failures of the judicial reform efforts of El Salvador and Brazil in the 1980’s produces striking results. The reforms varied greatly in scope and were conducted in very different socio-political and economic backgrounds. While El Salvador’s reforms seemed narrow and ill-planned, on paper it appeared that Brazil’s broad reforms would be a successful model for any country with a fledgling democracy. Brazil’s reforms were an exercise in constitutionalism, implementing genuine separation of powers and receiving legislative and executive support. I was very surprised that these different approaches produced strikingly similar negative effects on the people’s assessment of the judiciary. From this outcome I concluded that while judicial reform of a corrupt or inefficient judiciary is an important step in ensuring the rule of law in society, it can not be the vehicle through which democratic reform is implemented. Quite to the contrary, for successful judicial reform to take place there must be considerable penetration of the law in society through enforcement of unbiased legislation, consistency in the laws and their enforcement, and sufficient time for the reform to have an effect on society.