DANIEL BRINKS is professor of government and law and current chair of the UT Austin Department of Government, where he specializes in the fields of comparative politics and public law. He previously served as co-director of the Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas at Austin School of Law (2010–2019). Brinks was interviewed in person by Portal editor Susanna Sharpe, and answered follow-up questions via e-mail.
You grew up in Argentina, leaving when you were 18. You describe life as a teen under military rule in the late 1970s as living in a state that “monitored people’s lives, that was unaccountable to anyone for its actions, and in which violence was likely and arbitrary.” Did this experience have an influence on your interest in governments, constitutions, and law?
I was young, but those were pretty formative years for me. I think those experiences left me with a lifelong distrust of overly nationalistic, “my country right or wrong” attitudes. They also motivate virtually all of my research agenda. My research is primarily about the way in which we are all constituted as citizens—whatever regime we live under—by a set of rights and duties, and about the legal scaffolding that makes those rights and duties a reality (or not). In Argentina in the late 1970s and early 1980s, you always had the feeling that the state could tear through gossamer-thin legal protections at any time and for any reason. Democracy is supposed to change that, but it doesn’t always, it doesn’t everywhere, and it doesn’t for everybody. That variation—who has what rights, when, where, and why—is what I study.
Regarding The Politics of Institutional Weakness in Latin America (2020), which you co-edited with Steven Levitsky and María Victoria Murillo, what is meant by institutional weakness? What are the ideal conditions for strengthening institutions that matter for the well-being of citizens in all sectors of society?
We define institutions the way the new institutional economists do—as the rules that structure human interaction around particular social goals. In politics, we often use institutions to move society from where it is to where we think it ought to be, or to keep it from changing away from where we think it ought to be. In Latin America, since re-democratization, policymakers have used institutions to try to craft more equality and inclusion, to prevent violence, to preserve and perfect democracy, and to accomplish many other goals both positive and negative. When these projects fail, people often blame it on weak institutions. Our idea of institutional strength really focuses on this idea of institutions as producing or protecting a state of affairs. A strong institution is one that produces outcomes that are quite distant from the outcomes we would observe without it. Conversely, a weak institution is one that fails to change the world at all, either because it gets changed with every shift in our politics, or because no one bothers to comply in the first place.
For example, across Latin America new institutions around gender violence are trying to move us from a society in which violence against women and other vulnerable people is frequent, to a society in which these populations can live without (or at least with less) fear of violence. Conceptually, the strength of that new institutional arrangement is measured by the difference between a world as it would be without those institutions and the world as it is with those institutions in place. In practice this can be tricky, but that’s the basic idea.
In 2022, you published The Limits of Judicialization, co-edited with LLILAS alumna Sandra Botero and Ezequiel Gonzalez-Ocantos. What is judicialization? What are some examples of its successes in Latin America, as well as situations in which its promise has not been realized?
Beginning in the 1980s, there was a notable shift across the Global South in the way in which constitutions, courts, and laws more generally were meant to work. Constitutions emphasized rights more, including economic, social, and cultural rights, not just civil and political rights; courts were strengthened and given more autonomy from politics; lawyers and judges began to feel emboldened to challenge political actors; and individuals and civil society organizations turned to law to frame their demands and to courts for public policy solutions. This is what we call the judicialization of politics—the increasing relevance of legal actors and legal concepts in our politics.
Although there are many critiques of this “turn to law,” I think you can point to some pretty clear successes. Courts pushed public health systems to cover people living with HIV/AIDS. In many countries, courts paved the way for more equality and inclusion for the LGBTQ+ community, and for more territorial autonomy for Indigenous groups. In others, the courts have taken important steps to protect the environment, to protect democratic processes, and to prevent the abuse of power. Although the first moves were largely on behalf of progressive causes, we now see people across the political spectrum turning to law and courts. And, in many cases, we see a pretty strong backlash against some of the gains secured in this way. Of course, with progress there is always backlash, so this isn’t unique to judicialization, but it has led some of us to question whether NGOs pushed their claims through courts too fast, too soon, without building the grassroots support and institutional foundation those changes required.
In our recent conversation, you said, “Constitutions written by the powerful tend to maximize their power and interests.” How do you grapple with the current struggles between authoritarianism and democracy throughout the world, including the United States? How do you talk to your students about it?
Our current laws are the sediment of past politics. Constitutions can be somewhat “sticky,” but to the extent that power relations shift away from the political settlements we see reflected in our existing constitutional structures, we will see pressure to change those structures. I personally think the raft of constitution-making that marked Latin America from the 1980s to the early 2000s was the product of a pretty pluralistic and democratic period—albeit not perfect and with lots of exceptions. Since then, I worry that more and more countries in Latin America have fallen into disillusionment with what democracy has produced over the last forty years, and are now experimenting with less inclusive, less democratic leadership. If our legal framework largely embodies the power struggles that produced it, then an age of disenchantment with liberal democracy is likely to produce less inclusive, less restrained political institutions.
I tell my students that law and courts are just as much the product of our politics as the people we choose to wear the presidential sash—and therefore just as worthy of our attention as citizens in a democracy. Law is too important to leave it to the lawyers and judges.
What Latin America–related courses have you taught, and how do your students learn to conduct research in the field of government?
I have taught a course called Law and Democracy in Latin America, where we looked at all the issues that have something to do with law and affect the quality of democracy in the region, from violent crime and state violence, to the judicialization of politics and the realization of rights. I currently teach Comparative Legal Systems, which is more technical and theoretical, and focuses on the relationship between law and politics. That course uses a lot of examples from Latin America, but it isn’t focused on any particular region of the world. My graduate seminar is called Comparative Law and Politics, and it also draws on examples from around the world.
The graduate and undergraduate students that I teach tend to be interested in the intersection between law and politics. They often end up doing a lot of fieldwork, in Latin America and other parts of the world as well. And because these days law is everywhere, the range of topics they cover is pretty extensive.
Your newest project will look at the success or failure of the new constitutional projects that arose in Latin America in the last few decades. What can you reveal about this research?
In 2018, I published a book with one of my grad students, Abby Blass, titled The DNA of Constitutional Justice in Latin America. That book looked at the political origins of the various models of constitutional justice that were emerging in the region: Why did some constitutional moments produce more inclusive, power-distributing constitutions, while others maintained or reinforced the concentration of power? The book really focused on the ways in which the constitutional justice systems of each country created opportunities to bring new claims and to include new groups. In a way, it’s a look at the institutional architecture of this age of judicialization.
The question in my new project is, what became of these new systems? Did they really break up the old politics of power and influence? Did they lead to the outcomes imagined by the constitutional designers and the activists who pushed for more rights and new structures? In a way, it’s a combination of the Institutional Weakness book and the DNA book, asking, Under what circumstances do new institutions become strong and change the world, and when, instead, do they remain weak, leaving the old structures unchanged? ✹
