Administrative law faces unique challenges in Latin American “paper leviathans.”
Despite differences in administrative law models adopted by different Latin American countries, comparative scholars can trace some common elements.
Since the 1970s, Latin American countries have adopted administrative procedure acts (APAs) in two waves. The first was the gradual passing of APAs, mainly influenced by Spanish law. The second wave was the modernization of APAs by good administration standards. The outcome is the existence on the books of very ambitious APAs that governments cannot effectively implement due to the historical state fragility in the world’s most unequal region.
When it comes to the first wave—the passing of APAs—Luigi Labruna has explained that the law in Latin American countries resulted from the diffusion of Romanist legal culture with the pre-Colombian indigenous institutions. As Helmut Coing observed, the European ius commune influenced the constitutional foundations of Latin America and, more specifically, Hispanic America. Not surprisingly, the Latin American constitutional law is characterized as a “mosaic of national histories.”
Following the work of German scholars, Jorge Fernández Ruiz argues that Latin American administrative law is the concretization of constitutional law. So, like constitutional law, Latin American administrative law is also a mosaic but much more complex and diverse. European doctrine has profoundly influenced its formation, including French, Italian, and, remarkably, Spanish doctrine. These mixed origins facilitate its comparative study, although the comparative method has not always been applied adequately.
Likewise, administrative procedure has been influenced by European law—also primarily French and Italian doctrine on one side, and Spanish law on the other side. From a legislative perspective, the Spanish 1958 APA influenced the APAs enacted in Latin America, which, as Jesús González Pérez argued, incorporated general principles of law.
Latin American APAs proliferated during the second half of the 20th century due to two causes: the evolution of administrative law based on the centrality of human rights, especially considering the expansion of the Inter-American Human Right System, and the aspiration to increase administrative efficiency, as a result of the dramatic increase in the tasks handed to public administration in the social constitutionalism adopted in the region.
European doctrine again influenced Latin American APAs at the end of the 20th century. This second wave of APA adoption followed failed attempts to reduce the size of the state as a result of the Washington Consensus—a set of policy recommendations intended to reform the economies of developing countries. During this wave, Latin American countries attempted to modernize their APAs with the European doctrine of good administration standards.
Those standards center the person in administrative action, promoting administrative effectiveness. A milestone in the region was the 2013 Ibero American Charter of the Rights and Duties of the Citizens Towards Public Administration, which summarizes general principles based on good administration standards. As we have explained, those standards broadened the functions of administrative procedure, conceived not only as a legal constraint to assure due process rights but also as an institution aimed to increase the quality of public administration based on citizens’ participation.
The constitutionalization of administrative law boosted the relevance of good administration standards, particularly since the adoption of the Venezuelan Constitution of 1999. Since then, constitutions enacted in the region defined public administrative bodies as fiduciary institutions that should serve the people, as, for instance, established by Article 277 of the Ecuador Constitution. As I have elsewhere explained, this fiduciary concept supports good administration standards in Latin American APAs.
There is, however, a contrast between the ambitious framework of Latin American APAs and the actual capability of administrative agencies to implement this framework effectively. This contrast reflects a capability gap derived from the historical fragility of Latin American states—so-called paper leviathans that can be simultaneously “oppressive and ineffective.” As Daniel M. Brinks, Steven Levitsky, and María Victoria Murillo have concluded, Latin American institutions tend to be fragile because governments are unable to ensure effective policy implementation.
In that sense, Latin American APAs were intended to increase the bureaucratic domination of governments, following Max Weber’s famous postulates about the value of bureaucracy. But as a result of state fragility, bureaucratic dominance—or state institutionalization—has been unable to displace the patrimonial dimension of public administration. The strong Latin American populist roots and the patrimonial extent of public administration demonstrates the limited effect of modern APAs.
As the Inter-American Development Bank has concluded, administrative procedures in the region are too often characterized by red tape and inefficiency, despite the efforts to advance simplification strategies. There are, of course, exceptions. But as the pandemic demonstrated, public administrative bodies are fragile in ways that impair the effective implementation of governmental tasks. Although it is impossible to generalize about “failed law” in the region, that fragility limits the ability of APAs to promote effective administrative action.
The borrowing of European administrative law doctrine designed for stronger states may have aggravated the consequences of historical state fragility in Latin America. Adopting modern APAs in the region created an image of fragile countries that look like states.
The challenge for Latin American APAs in the 21st century is to reduce the gap between their de jure scope and their de facto implementation. The paper leviathans in the region should be transformed into resilient leviathans that facilitate effectiveness of administrative action through procedures governed by good administration standards. More than legislative reforms, this objective requires building the governing and operational capacities of the administrative state in Latin America.
This essay is part of a six-part series entitled, Administrative Law in Comparative Perspective.