Since his classic studies on legal pluralism in the 1970s, Santos has infused many of his works with a strong commitment to democratic struggles in Brazil. Following in this vein is his latest book, which he is now translating for his growing English-speaking audience. Based on a speech he gave in Brasilia in June 2007 by invitation of the Minister of Justice, it analyzes the judiciary in Western societies and draws various propositions for a Democratic Revolution of Justice, as the title suggests.
The author starts by asking, why did the judiciary, which Alexander Hamilton called “the least dangerous branch,” become such a critical topic in contemporary democracies? His answer is twofold. Besides facing increasing demands for confronting corruption and convicting wealthy and influential people, the judiciary also experiences the signs of a broader social contradiction. In resistance to neoliberalism and growing inequality, people transform needs into claims for rights, particularly when revolution and socialism are removed from the political agenda. Santos cites the case of a major landless movement in Brazil known as MST. Initially it simply distrusted the legal system, which appeared to be an instrument of oppression. As courts acknowledged land occupations as lawful, the movement realized that “law is contradictory and can be used by popular classes” (p. 30).
This explains the ambiguities of judicial reforms, especially in developing countries. On the one hand, there are pressures from the World Bank, the International Monetary Fund, and multilateral agencies whose goal is to provide capital with rapidness and predictability, ensuring the enforcement of contracts and a consistent regulatory framework for big business. To illustrate how this rationale can hijack judicial services, Santos points out that collection for small debts of gas, electricity, and telephone service total 81 percent of all civil cases in Lisbon. Consequently, the system is too jammed up to serve people with relevant cases in family law, torts, and so on (p. 28).
However, pressures also come from below. People willing to fight for a better life demand a judiciary capable of hearing and understanding their needs as a matter of rights, not philanthropy or charity. If reforms benefit these groups whom judicial authorities have smashed “with their esoteric language, arrogant presence, ceremonial dressing manners, overwhelming buildings, and labyrinthic secretaries” (p. 31), the result will be a double transformation: there will be more access to justice, but justice will change due to such increasing access.
All of which leads to another question: What could ground the latter reforms, the ones that Santos defends? Although his narrative is mostly built around the Brazilian case, three of his points are really wide-ranging. First is the assumption of legal pluralism, meaning that “law is created and delivered in society not only in different times and places, but also in different modes” (Reference Sá e SilvaSá e Silva 2007:86). This clearly emerges when Santos discusses how to expand access to justice: beyond focusing on formal practitioners, he includes popular experiences in the pursuit of rights.
Second is the concern with institutional innovations that make the judiciary more accessible and welcoming to the disenfranchised, resembling what Reference Cain and HarringtonCain and Harrington said more than 10 years ago (1994): new institutional forms are often required to express and resolve the needs of the powerless. Some of the alternatives Santos presents—e.g., conciliation, mediation, and restorative justice—are already known by the academic mainstream. Others—e.g., community justice, itinerant justice, and small-cases courts—are drawn from the specificities of the Brazilian experience, as typical of his “sociology of emergences” (Reference SantosSantos 2002:465; Reference Santos and Wallerstein2004).
Finally is the concern with legal professionals and their cultural background. Calling for changes in both law schools and professional academies, Santos invites the development of an alternative legal education framework. The goal is to defy the formalist attitude that dramatically impacts judicial activity, such as civil judges who endorse the myth of racial democracy and create a severe barrier against racial equality (p. 67), and criminal judges who believe that incarceration is the best answer to crime and rarely condemn defendants to alternative penalties despite the abhorrent conditions in Brazilian prisons.
Overall, the book offers a provocative contribution to be enjoyed by multiple audiences. It is obviously useful for Brazilians dealing with a challenging legal system, but it can also shed light on some debates affecting Northern countries. In the United States, for example, there is much skepticism about pursuing social change through the courts. Surrounded by political and judicial conservatism and corporate capitalism, the tradition of public interest law faces a trial (Reference Cummings and EaglyCummings & Eagly 2006; Reference TrubekTrubek 2004). So would the courts still be a promising topic for a transformative research agenda?
To be sure, Santos is not naïve. He is aware that “a democratic revolution of justice will never happen without a democratic revolution of the State and society,” but he opportunely recalls that “the latter will never happen without the democratic revolution of justice.” Therefore, “it is relevant to ask how the judicial system could contribute to that broader democratic revolution. Such contribution is possible, but only if the judicial system turns into one that is very different from what we know” (p. 120).
