Administrative law faces unique challenges in the “paper leviathans” of Latin America.
Despite the differences in the administrative law models adopted by different Latin American countries, comparative scholars can observe some common elements.
Since the 1970s, Latin American countries have adopted administrative procedure laws (APAs) in two waves. The first was the gradual passage of APAs, which were heavily influenced by Spanish legislation. The second wave was the modernization of APAs according to good governance standards. The result is the presence on the books of very ambitious APAs that governments are unable to effectively implement due to historical state weakness in the world’s most unequal region.
When it comes to the first wave – the passing of the APAs – Luigi Labruna explained that the law in Latin American countries emerged due to the spread of Romanistic legal culture with indigenous institutions before Colombia. As Helmut Coing observed, Europeans ius commune influenced the constitutional foundations of Latin America and, in particular, Hispanic America. It is no wonder that Latin American constitutional law has been described as a “mosaic of national histories.”
Following the work of German scholars, Jorge Fernández Ruiz argues that administrative law in Latin America is an adaptation of constitutional law. Thus, like constitutional law, Latin American administrative law is a mosaic but much more complex and diverse. European doctrine has deeply influenced its formation, including French, Italian and, interestingly, Spanish doctrine. These complex origins facilitate its comparative study, although the comparative method has not always been adequately applied.
Likewise, administrative case influenced by European law – primarily French and Italian doctrine on the one hand, and Spanish law on the other. From a legal perspective, the Spanish APA of 1958 influenced the APAs adopted in Latin America, which, as Jesús González Pérez said, include general principles of law.
Latin American APAs increased in the second half of the 20th century for two reasons: the development of administrative law based on the centralization of human rights, especially considering the expansion of the Inter-American Human Rights System, and the desire to increase administrative efficiency. , as a result of a considerable increase in the duties given to the public administration in the social constitution adopted in the region.
As a result of that development, Latin American APAs favored the codification of common administrative law to promote a balance between administrative efficiency and citizens’ rights.
European doctrine again influenced Latin American APAs in the late 20th century. This second wave of adoption of the APA follows failed attempts to reduce the size of the state as a result of the Washington Consensus – a set of policy proposals aimed at reforming the economies of developing countries. In this wave, Latin American countries tried to modernize their APAs with the European doctrine of good governance standards.
These standards center the individual in administrative action, which promotes administrative effectiveness. A milestone in the region was the 2013 American Convention on the Rights and Duties of Citizens Towards Public Administration of Ibero, which summarizes general principles based on standards of good governance. As we explained, those measures expanded the functions of the administrative procedure, which is considered not only as a legal obstacle to ensure legal rights, but also as an institution that aims to increase the quality of public administration based on the participation of citizens. .
The codification of administrative law has increased the importance of good governance standards, especially since the adoption of the 1999 Venezuelan Constitution. established by Article 277 of the Constitution of Ecuador. As I have explained elsewhere, this fiduciary concept supports good governance standards in Latin American APAs.
However, there is a contrast between the ambitious framework of the Latin American APAs and the actual capacity of the administrative institutions to implement this framework effectively. This contrasts with a capacity gap that reflects the historical weakness of Latin American states – so-called paper leviathans that can be both “tyrannical and ineffective”. As Daniel M. Brinks, Steven Levitsky, and María Victoria Murillo have pointed out, Latin American institutions tend to be fragile because governments are unable to ensure effective policy implementation.
In this respect, Latin American APAs were intended to increase the bureaucratic dominance of governments, following Max Weber’s famous postulations about the value of bureaucracy. But as a result of the failure of the state, the bureaucratic domination – or the institutionalization of the state – has not been able to accommodate the patrimonial dimension of public administration. Latin America’s strong populist roots and the patrimonial breadth of public administration reflect the limited influence of modern APAs.
As the Inter-American Development Bank has concluded, administrative procedures in the region are often characterized by red tape and incompleteness, despite efforts to develop facilitation strategies. Of course, there are exceptions. But as the pandemic has shown, public administrative institutions are vulnerable in ways that undermine the effective performance of government duties. Although it is impossible to generalize about “broken law” in the region, that brokenness limits the APA’s ability to promote effective administrative action.
Borrowing European administrative law doctrine designed for stronger states may have exacerbated the consequences of historical state weakness in Latin America. The adoption of modern APAs in the region has created an image of fragile countries resembling states.
The challenge for Latin American APAs in the 21st century is to reduce the gap between them de jure detailed and them de facto implementation The paper leviathans in the region should be transformed into resilient leviathans that facilitate the effectiveness of administrative action through procedures guided by good governance standards. More than legislative reforms, this goal requires building the administrative and operational capacities of the administrative state in Latin America.
