Rebuilding The State Institutions: Juan Antonio Le Clercq Jose Pablo Abreu Sacramento Editors

Juan Antonio Le Clercq
Jose Pablo Abreu Sacramento Editors
Rebuilding the
State Institutions
Challenges for Democratic Rule
of Law in Mexico
Rebuilding the State Institutions
Juan Antonio Le Clercq•
Jose Pablo Abreu Sacramento

Editors
Rebuilding the State

Institutions
Challenges for Democratic Rule of Law
in Mexico
123
Editors
Juan Antonio Le Clercq Jose Pablo Abreu Sacramento
Departamento de Relaciones Departamento de Derecho, Escuela
Internacionales y Ciencia Política de Ciencias Sociales y Gobierno
Centro de Estudio sobre Impunidad y Tecnológico de Monterrey
Justicia, Universidad de las Américas Campus Santa Fe
Puebla (UDLAP) Mexico City, Mexico
Cholula, Puebla, Mexico
More on this book is at: http://afes-press-books.de/html/SA_05.htm.
ISBN 978-3-030-31313-5 ISBN 978-3-030-31314-2 (eBook)

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Foreword
Literally every single day people talk more about the necessity of establishing the
rule of law. Some think it should be a kind of primary setting. Others believe that it
is more a process that implies a broad transformation to enforce something that is
incomplete or dysfunctional. Yet there are diverse possibilities between these two
extremes. The narratives of these moments have an element in common: the
identification of absences. Practically nobody believes that Mexico has managed to
build, operate, establish, work with, or, indeed, perform any similar expression
related to what has historically been defined as the rule of law.
It would be relatively easy to compile a list of authors who have discussed the
numerous deficiencies and the damaged or disastrous status that rule of law has or
does not have in our society. If we take as the starting point, let’s say, twenty years
ago, the list would be enormous. Many topics would appear, one or multiple times,
in an isolated or cyclical way: security or insecurity of contracts, police action, lack
of resources, violation of due process, the disruption of federalism or separation of
powers, the expansion of crime, legalization of drugs, accountability, a career civil
service, the use of the Army for public security tasks, informal economy, regulatory
proliferation, but also the absence of regulation, corruption, migration, human rights
violations, absence of referendums among indigenous minorities, irregular extrac-
tions, corporatization of political parties, spread of political and electoral clienteles,
depredation of natural resources, cybernetic insecurity, unmarked graves, kidnaps,
disappeared people, murdered journalists, human trafficking, black markets,
extrajudicial executions, and a literally profound etcetera.
The items in the aforementioned list, along with other topics and variables that
could easily be included, have been advanced as deficiencies in the rule of law.
Beyond relevant viewpoints and thematic differences, what it is shown is the per-
ception, and sometimes a full demonstration, of a series of national problems linked
to the law. Each person sees only what is personally or professionally relevant to
him or her, and that obliviousness is so great that it should be regarded as the
antithesis of the situation that should ideally prevail.
v
vi Foreword
The challenge of facing those problems in that way generates additional com-
plications. The first and most evident one consists of the turmoil caused by trying to
turn any deficiency into a legal, normative, or practical damage to the rule of law. If
we imagine this legal-political-social possibility as one piece composed of many
parts, it could be said that the whole ends up being adversely affected by the
inadequacy of one of its elements.
This metaphoric approximation highlights that many authors maintain that the
rule of law to which we aspire as a totality is normatively and practically
non-existent, or else does exist but deficiently because it lacks that central element.
Several things that have been discussed in recent years are situated in this foggy
condition. The underlying issue is not so much the difficulty of identifying such
topics, but the reasons for considering these particular topics, and not others, as
deficient and, what is more, why those issues affect the “rule of law” as a whole.
Perhaps, it could be said that this analysis is, in fact, a meta-discussion.
According to this logic, we would not be discussing the problems with the rule of
law, but what individuals believe to be more disruptive, in an analytical way. This
perspective leads us to a second discussion about how it affects the whole, and not
about what it is important to adjust or correct in the legal-cultural mode.
Possibly, it could be said the two discussions are different and independent.
And I would agree. But I disagree about the confusion of some authors when they
draw a line between the necessity of correction and of description. I should insist on
the fact that if everything that is done fits within the “rule of law” zone and there is
limited awareness of how the part affects the whole, we would not know which
specific part should be corrected or how it should be corrected in order to achieve
that whole.
I am elaborating on the above considerations, maybe quite extensively, to con-
textualize the book which I am about to introduce. It is a compilation of essays
where, in my opinion, three elements converge. First, it seeks to define what could
nowadays be conceptually understood as the rule of law in this geographic area. This
is not a trivial feat. There is a large number of works on the possible list to which I
previously referred which, before embarking on the analysis of successes and fail-
ures, do not explain what is going to be understood by the rule of law. This gives the
impression that those who act in that way assume the existence of a natural state of
affairs, as if everybody is thinking, both conceptually and practically, the same thing
when they talk about the rule of law. But, in fact, this is not true.
If we look closely at what I will call the underlying discourse, wide and pro-
found differences could be identified in the components of the rule of law or its
objectives and functions. For some people, it is an instrument of contractual exe-
cution; for others, it is a control and coaction mechanism; for still others, it is the
normative realization of the democratic State.
The book’s main strength is that it makes explicit the whole theoretical scaffold
of what is going to be understood by the rule of law. The essays in the first part
focus on this concept and what conforms to it and what does not. This does not
mean that we have to accept the authors’ ideas. It simply enables us to know,
explicitly, the authors’ ideas and arguments and to avoid erroneous suppositions.
Foreword vii
The second advantage of the book is that it provides concrete examples of some
specific issues to demonstrate what is defined as the rule of law. At this stage, we
move on from the theory to see how these failures take place. Does the number of
constitutional reforms generate an affectation, in a kind of understanding as Marx
did, where the quantitative become qualitative? Is the absence of security or the lack
of civic culture destructive of what is construed and done as rule of law?
The third aspect of this work has a more specific dimension by asking what
should be done socially, and in some cases legally, to establish or reestablish
equilibrium in the country, either by geography or subject. There are valuable
arguments that also, of course, have a practical dimension.
What has just been mentioned could give the impression that the book possesses
a sort of unity: a whole perfectly formed from the general and abstract to the
concrete, through the particular. But the fact that diverse authors present their ideas
about related topics does not automatically lead to complete cohesion. In other
words, what is said by one author in the first part may not necessarily be accepted
by another author in a different part of the book.
Anyone who decides to read this book cannot simply assume its total unity. On
the contrary, the reader has to extract from each chapter the elements of particular
use and relevance to them. What certainly has been done is to structure the parts in a
differentiated manner and, for me, this is the chief merit of the collection. This is not
a common feature; however strange this may sound. It is delightful and valuable
that authors and editors have made an effort to mark the differences. It is a relevant
analytic step forward. This could foster further reflections to comprehend and
generate consensuses to modify the situation of a fundamental theme of our time:
simply, from my perspective, the rational and ordered social coexistence among all
or quite a few of us.
Mexico City, Mexico Dr. José Ramón Cossío Díaz

January 2019 Ministro de la Suprema Corte
de Justicia de la Nación
Miembro de El Colegio Nacional
Acknowledgements
We are grateful to colleagues from Mexico and different countries who participated
in the review of all the chapters: Alejandra Díaz de León, Alejandro Ramírez, Belem
Guerrero, Benito Sotelo, Claudio López-Guerra, César Borja, Dieter Enríquez,
Edgar Valle, Edith Mercado, Elisa Gómez, Elizabeth Espinoza, Emilio Zacarías,
Fernando Ojesto, Francisco Esquinca, Gerardo Rodríguez, Gerardo Toache,
Guillermo Casillas, Isabel Fulda, Jorge Andere, José Ojeda, Kira Ciofalo, Ludwig
Von Bedoya, Laura Romero, Mayra Cabrera, Miguel Casillas, Mohamed Badine,
Nancy Nieira, Nicolás Corona, Rebecca Sophie, Ronald Guy Emerson, Sofía
Ballesteros, Tania Ramírez, Wendy Jarquín, and Ximena López. We appreciate the
support of Celeste Cedillo, Dahyane Galindo, Daniela Hernández, Santiago
Martinez, Alexis Murrillo, Eduardo Poltolarek, Elena Munive, Emilia Quijano,
Santiago Torres, and Amado Tress, who helped throughout the editing process.
Without them, this book could not end in your hands.
We are also thankful to UDLAP authorities for all their support for this project,
especially Dr. Luis Ernesto Derbez Bautista, President; Cecilia Anaya Berríos,
Academic VicePresident; and Raphael Steger Cataño, Dean of the Social Sciences
School.
Finally, we want to thank Springer Nature in Heidelberg for their faith in this
project, especially to Dr. Johanna Schwarz, Dr. Christian Witschel, and Ms. Aurelia
Heumader and the book editor, PD Dr. Hans Günter Brauch as well as the book
producer in Heidelberg, Ms. Doerthe Mennecke-Buehler, and the author would like
to thank Ms. Jayanthi Krishnamoorthi and Ms. Manopriya Saravanan and the
production team in Chennai, Tamil Nadu, India.
They were patient and supportive during the whole process. Also, we recognize
the effort and engagement of all the authors.
Cholula, Puebla, Mexico Dr. Juan Antonio Le Clercq

Mexico City, Mexico Dr. Jose Pablo Abreu Sacramento
August 2019
ix
Contents
1 Introduction: Understanding the Lack of Rule of Law

in Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Juan Antonio Le Clercq, Jose Pablo Abreu Sacramento
and Fernando Miguel Herrera Rosado
Part I The Concept of Rule of Law and Its Measurement

2 Conceptualizing the Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Rodolfo Sarsfield
3 Rule of Law and “Estado Constitucional” Indicators. Does
Law Rule Effectively in Mexico? . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Rafael Estrada Michel
4 Measuring the Rule of Law in Mexico . . . . . . . . . . . . . . . . . . . . . . 57
Camilo Gutiérrez, Joel Martinez, Alejandro Ponce and Leslie Solís
Part II Explaining the Fragility of the Rule of Law in Mexico

5 How Many Constitutional Reforms Produce Rule of Law? . . . . . . . 81
6 Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Vidal Romero
7 Human Rights and Unreliable Institutions in a Globalized
World: The Case of Irregular Migrants in Mexico . . . . . . . . . . . . . 123
Mauricio Olivares-Méndez and Radu-Mihai Triculescu
8 Amparo and Administrative Trials as Accountability
Mechanisms in Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Ana E. Fierro
xi
xii Contents
9 Citizenry, Civic Education and Rule of Law . . . . . . . . . . . . . . . . . . 155

10 The Challenge of Developing a New Human Rights Culture
in Future Mexican Lawyers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Eduardo Román González
Part III Structural Reforms and Their Implementation Challenges

11 How Does Criminal Justice Work in Mexico? . . . . . . . . . . . . . . . . 193
María Novoa and Karen Silva Mora
12 The Monster Within: Mexico’s Anti-corruption National
System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
Cristopher Ballinas Valdés
13 Institutional Path Dependence in the Failure of the
“War on Drugs” in Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223
Jorge Javier Romero
14 Reversal of Fortunes: Changes in the Public Policy
Environment and Mexico’s Energy Reform . . . . . . . . . . . . . . . . . . 241
Tony Payan
15 The Rule of Law in Economic Competition . . . . . . . . . . . . . . . . . . 265
María Solange Maqueo Ramírez
Universidad de las Américas Puebla (UDLAP) . . . . . . . . . . . . . . . . . . . . . 281

About the Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
About the Co-Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285
About the Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
Contributors
Jose Pablo Abreu Sacramento Department of Law, Tecnológico de Monterrey,

Mexico City, Mexico
Ana E. Fierro Management and Public Policy and Research, CIDE, Mexico City,
Mexico
Eduardo Román González Government and Public Policy, Universidad
Autónoma de Madrid, Madrid, Spain
Camilo Gutiérrez World Justice Project, Washington, D.C., USA
Juan Antonio Le Clercq Department of International Relations and Political
Science, UDLAP. Ex hacienda de Sta. Catarina Mártir, Puebla, Mexico
Joel Martinez World Justice Project, Washington, D.C., USA
Rafael Estrada Michel Escuela Libre de Derecho, Mexico City, Mexico
Karen Silva Mora UNAM, Mexico City, Mexico
María Novoa Universidad Simón Bolívar, Caracas, Venezuela
Mauricio Olivares-Méndez Universidad Autónoma de Querétaro, Querétaro,
Mexico
Tony Payan Baker Institute, Rice University, Houston, USA;
Universidad Autónoma de Ciudad Juárez, Ciudad Juárez, Mexico
Alejandro Ponce World Justice Project, Washington, D.C., USA
María Solange Maqueo Ramírez Economic Research and Teaching Center
(CIDE), Mexico City, Mexico;
National Institute for Transparency, Access to Information and Personal Data
Protection (INAI), Mexico City, Mexico
xiii
xiv Contributors
Jorge Javier Romero Department of Politics and Culture, Universidad Autónoma

Metropolitana Xochimilco, Mexico City, Mexico;
Faculty of Political and Social Sciences, UNAM, Mexico City, Mexico
Vidal Romero Political Science Department, ITAM, Mexico City, Mexico
Fernando Miguel Herrera Rosado School of Social Sciences and Government of
Tecnológico de Monterrey, Monterrey, Mexico
Rodolfo Sarsfield Autonomous University of Querétaro, Querétaro, Mexico
Leslie Solís World Justice Project, Washington, D.C., USA
Radu-Mihai Triculescu University of Twente, Enschede, The Netherlands
Cristopher Ballinas Valdés Philosophy in Politics, University of Oxford, Oxford,
UK
Abbreviations
ACHR American Convention of Human Rights

ARP Administrative Responsibility Penalties
ASF Superior Federal Audit (Auditoría Superios de la Federación)
CAPI Computer-assisted personal interviewing
CCINM Citizen Council of the National Institute of Migration (Consejo
Ciudadano del Instituto Nacional de Migración)
CEAV Executive Commission for Victims Assistance (Comisión
Ejecutiva de Atención a Víctimas)
CEEAD Center for Studies on Teaching and Law Learning (Centro de
Estudios Sobre Enseñanza y Aprendizaje del Derecho)
CENACE National Center for Energy Control (Centro Nacional de Control
de Energía)
CENAGAS National Center for Natural Gas Control (Centro Nacional de
Control de Gas Natural)
CIDAC Research Center for Development (Centro de Investigación para el
Desarrollo, A.C.)
CIDE Center for Research and Teaching in Economics (Centro de
Investigación y Docencia Económicas, A.C.)
CIDH Inter-American Court of Human Rights
CJF Mexican Council on Administration of the Federal Judicial Branch
(Consejo de la Judicatura Federal)
CNDH National Commission for Human Rights (Comisión Nacional de
los Derechos Humanos)
CNH National Hydrocarbons Commission (Comisión Nacional de los
Hidrocarburos)
CNPJE National Census of Local Prosecution Offices (Censa Nacional de
Procuración de Justica Estatal)
COFETEL Federal Telecommunication Commission (Comisión Federal de
Telelecomunicaciones)
xv
xvi Abbreviations
COFECE Federal Competition Commission (Comisión Federal de

Competencia Económica)
COLMEX College of México (Colegio de México)
CONAPRED National Council Against Discrimination (Consejo Nacional contra
la Discriminación)
CONEVAL National Council for the Evaluation of Social Development Policy
(Consejo Nacional de Evaluación de la Política de Desarrollo
Social)
CRE Energy Regulatory Commission (Comisión Reguladora de
Energía)
CSG Carlos Salinas de Gortari
ELD Free School on Law (Escuela Libre de Derecho)
ENVIPE National Victimization Survey (Encuesta Nacional de
Victimización y Percepción sobre Seguridad Pública)
EPN Enrique Peña Nieto
EZP Ernesto Zedillo Ponce de León
FCH Felipe Calderón Hinojosa
FLACSO Latin American Faculty of Social Sciences (Facultad
Latinoamericana de Ciencias Sociales)
FMP Mexican Petroleum Fund (Fondo Mexicano del Petróleo)
GCM Global Compact for Safe, Orderly and Regular Migration
GII Global Impunity Index (Índice Global de impunidad)
GPP General Population Poll
HPR Homologated Police Report
IAHRC Inter-American Human Rights Commission
IEDF District Federal Electoral Institute
IFECOM Federal Institute of Experts in Mercantile Contests (Instituto
Federal de Especialistas en Concursos Mercantiles)
IFETEL Federal Institute for Telecomunications (Instituto Federal de
Telecomunicaciones)
INACIPE National Institute of Criminal Sciences (Instituto nacional de
Ciencias Penales)
INAI Instituto Nacional de Acceso a la Información (Instituto Nacional
de Acceso a la Información)
INE National Electoral Institute (Instituto Nacional Electoral)
INEE National Institute for Educational Evaluation (Instituto Nacional
para la evaluación Educativa)
INEGI National Institute for Statistics and Geography (Instituto Nacional
de Estadística y Geografía)
INM National Institute of Migration (Instituto Nacional de Migración)
IPSA International Political Science Association
ITAM Autonomous Technological Institute of México (Instituto Nacional
Autónomo de México)
ITESM Monterrey Institute of Technology and Higher Education (Instituto
Tecnológico Y de Estudios Superiores de Monterrey)
Abbreviations xvii
LACC Latin America and Caribbean Centre

LFCE Federal Law of Economic Competition (Ley Federal de
Competencia Económica)
LSE London School of Economics and Political Science
MORENA National Regeneration Movement (Movimiento de Regeneración
Nacional)
MP Federal Prosecutor (Ministerio Público)
NAFTA North American Free Trade Agreement (Tratado de Libre
Comercio)
OECD Organization for Economic Cooperation and Development
PAN National Action Party (Partido Acción Nacional)
PEMEX Mexican Petroleum (Petróleos Mexicanos)
PF Principle of Fairness
PPD Drug Policy Program (Programa de Política de Drogas)
PRI Institutional Revolutionary Party (Partido Revolucionario
Institucional)
QRQ Qualified Respondent’s Questionnaires
REDODEM Documentation Network of Migrant Advocacy Organizations (Red
de Documentación de las Organizaciones Defensoras de
Migrantes)
RLI Rule of Law Index
SCJN Court of Justice of the Nation (Suprema Corte de Justicia de la
Nación)
SEGOB Ministry of National Affairs (Secretaría de Gobernación)
SESNSP Executive Secretariat of the National Public Security System
(Secretariado Ejecutivo del Sistema Nacional de Seguridad
Pública)
SETEC Technical Secretariat for the Implementation of Criminal Justice
Reform (Secretaría Técnica del Consejo de Coordinación para la
implementación del Sistema de Justicia Penal)
SFP Ministry of Public Function (Secretaría de la Función Pública)
SNA National Anti-corruption System (Sistema Nacional
Anticorrupción)
SNI National System of Researchers (Sistema nacional de
investigadores)
SPT Subcommittee on Prevention of Torture and other Cruel Inhuman
or Degrading Treatment or Punishment
TFJA Federal Court of Administrative Justice (Tribunal Federal de
Justicia Administrativa)
UAM Metropolitan Autonomous University (Universidad Autónoma
Metropolitana)
UANL Nuevo León Autonomous University (Universidad Autónoma de
Nuevo León)
UDLAP University of the Americas Puebla (Universidad de las Américas
Puebla)
xviii Abbreviations
UIA Iberoamerican University (Universidad Iberoamericana)

ULSA La Salle University (Universidad de La Salle)
UMECAS Supervisory Units for Precautionary Measures (Unidades Estatales
de Supervisión a Medidas Cautelares y Suspensión Condicional del
Proceso)
UN United Nations
UNAM National Autonomous University of Mexico (Universidad
Nacional Autónoma de México)
UNDP United Nations Development Programme
UNHRC United Nations Human Rights Council
UNLA Latin University of America (Universidad Latina de América)
UNODC United Nations Office on Drugs and Crime
UP Panamerican University (Universidad Panamericana)
UPM Pontifical University of Mexico (Universidad Pontifica de México)
USAL University of Salamanca (Universidad de Salamanca)
VFQ Vicente Fox Quezada
WGI Worldwide Governance Indicators
WJP World Justice Project
WVS World Value Survey
Chapter 1
Introduction: Understanding the Lack
of Rule of Law in Mexico
Juan Antonio Le Clercq, Jose Pablo Abreu Sacramento

and Fernando Miguel Herrera Rosado
1.1 The Complex Development of the Rule of Law
The rule of law has been established as a central feature of modern states and
democracies; it represents an ideal linked to political development. The rule of law
rests on the idea that a society adopts through legislation a set of formal rules and
norms and decides to adhere to those rules in order to regulate the behavior and
interaction of individuals, public institutions and private organizations, including
conflict resolution mechanisms. This represents the basic social contract crystaliz-
ing a common aspiration of modern democracies.
In some of its canonical definitions, the rule of law refers to at least five fun-
damental processes: lawmaking in coherence with principles such as clarity, pub-
licity, stability, consistency, transparency or prospectivity; equal protection of
citizens’ rights and interests; impartial and universal access to justice; public offi-
cials’ behavior and decisions in adherence to law; and institutional rules of the
game to regulate social, political and economic interactions – something North
(1990) called a timeless certainty horizon.
Prof. Dr. Juan Antonio Le Clercq, Ph.D. in Political and Social Sciences, Department of
International Relations and Political Science, UDLAP. Ex hacienda de Sta. Catarina Mártir,
72810, San Andrés Cholula, Puebla, México. E-mail: [email protected].
Prof. Dr. Jose Pablo Abreu Sacramento, Ph.D. in Law. Department of Law, Tecnológico de
Monterrey, Campus Santa Fe, Mexico City. E-mail: [email protected].
Fernando Herrera holds a B.A. in Marketing and International Business from the Universidad
Autónoma de Yucatan (UADY), and a Master in Latin American Studies from Université
Paris III Sorbonne Nouvelle. He has collaborated at Higher Education Institutions such as
UADY and CIDE. He has also worked as a consultant for non-profit organizations participating
in projects related to transparency and accountability, education and social policy. He currently
works at the School of Social Sciences and Government of Tecnológico de Monterrey. E-mail:
[email protected].
© Springer Nature Switzerland AG 2020 1

J. A. Le Clercq and J. P. Abreu Sacramento (eds.), Rebuilding the State Institutions,
https://doi.org/10.1007/978-3-030-31314-2_1
2 J. A. Le Clercq et al.
But thick and critical descriptions1 of the liberal negative concept of legal order,
centered on restraints, rights, checks and balances, view the rule of law in a more
extended way, a perspective that involves more complex elements, such as the
development of institutional capabilities, the provision of public goods, a culture of
legality, market regulation, containing corruption and patrimonialism, promotion
and protection of human rights, principles of social justice and equality and the
legal and political consequences of economic inequality and social exclusion
(Tamahana 2004; Bingham 2010; Waldron 2016).
Beyond the differences and advantages of thick and thin approaches to the rule
of law, a central problem in contemporary academic and political discussions is the
difficulty of extending and consolidating the rule of law where tradition, political
informality or autocracy have been the basis of the social contract. This is why it is
very relevant to focus our attention on the key institutional conditions and social
circumstances that allow the development of an effective rule of law, especially in
developing countries and post-authoritarian regimes.
Is it possible to establish the rule of law successfully in developing countries or
young democratic regimes? Does the rule of law depend on high degrees of eco-
nomic development, related to particular political histories or conditioned by
specific legal traditions? Is it possible to design public institutions according to
legal principles where problems of corruption, patrimonialism, informality or lack
of a culture of legality persist? What is the relationship between an effective rule of
law and deep economic inequalities?
Answering these questions requires the study of successful and failed experi-
ences as well as deeper comparison between different national cases. One of the
main issues in the debate on the rule of law, as the reader will notice throughout the
articles in this book, has to do with its measurement. What is the optimal framework
of variables and attributes that would enable us to capture reality? Why is it
important to measure the rule of law? The authors of the book will attempt to
address these questions.
It is particularly relevant to reopen this discussion when disappointment with
democracy is clearly rising in different regions of the world.
Beyond a Political Sciences and Law perspective, the intensification of global
dynamics has significant effects on the rule of law. Migration is one of the key
issues of our time. But also, we cannot ignore the fact that de facto or agreed
supranational norms are defining national ones. HiTech companies play globally
but constrain to local norms. International treaties and regional institutions force
interactions between people to change and this requirement starts to be distrusted.
1
Thick descriptions (a term first coined by British philosopher Gilbert Ryle in an essay entitled
“The Thinking of Thoughts: What is ‘Le Penseur’ Doing?” [1968] and expanded on by American
anthropologist Clifford Gertz in The Interpretation of Cultures [1973]) are based on contextualized
scientific observation of human behavior, whereas thin descriptions offer only surface level
observations.
1 Introduction: Understanding the Lack of Rule of Law in Mexico 3
In addition, we cannot ignore the prominence gained around the world over the
past few years by strong quasi authoritarian leaderships like Turkey, Russia, and
China, or the rise of populist/nationalist political actors and parties like Trump
(USA), Bolsonaro (Brazil), Kurz (Austria), Le Pen (France), the League (Italy) and
VOX (Spain).
In Latin America, this discussion acquires more relevance when we focus our
attention on the complicated regional context. The consolidation of democracy in
different countries seems to pass through a delicate moment. The high levels of
inequality, the growing security crisis, the generalized environment of corruption,
and the political conflicts in specific countries like Nicaragua and Venezuela are just
some examples of the issues we are facing.
Although there is no unique model and the rule of law is considered not a final
stop but a continuing construction, there is a never-ending risk of regression, and
fundamental elements are threatened.
In Mexico, the rule of law is still an aspiration. In spite of several structural
reforms adopted during the last three Presidencies, public institutions still have
significant deficiencies. The inauguration of a left-wing government in December
2018 – which could be considered a second pivotal moment in the transition to
democracy – is starting to provoke questions about its economic model, its security
strategy and its political attitude of distrust/intolerance to other ideologies.
Mexico represents a case of the persistence of weak rule of law in a context of
problematic democratic consolidation and unequal economic development. Several
rankings, indexes, and reports have continually shown the endurance of widespread
corruption, ineffective institutions, impunity and globally feeble rule of law. These
studies are additional evidence of the relevance of discussing the rule of law in
Mexico, which is the aim of the book.
For example, the Corruption Perception Index that studies this phenomenon in
180 countries around the world classifies Mexico in the 138th position, behind
Latin American countries like El Salvador, Honduras, and Bolivia (Transparency
International 2018). The World Bank’s World Governance Indicators includes a
rule of law indicator in which Mexico has worsened its score from 38 points out of
100 in 2007 to 32 in 2017. In the Economist Intelligence Unit Democracy Index
(2018), Mexico scores 6.19 and ranks within Latin American and Caribbean
countries in the 16th position out of 24. This is the worst score among “flawed
democracies” – not far from El Salvador with 5.96, which is considered a “hybrid
regime”. In the Freedom in the World Index (Freedom House 2018) Mexico scores
62 points out of 100 and is classified as “partly free”, along with other nations in the
region, such as Bolivia, Paraguay, Colombia, Ecuador and Central American
countries. In the Fragile States Index Mexico scores 71.5 out of a maximum of 120,
ranking in the 94th position of 178 countries, and is classified in the ‘warning’
category like the majority of countries in Latin America.
In addition to these reports, there are two valuable initiatives understand Mexico’s
performance on the rule of law: The World Justice Project (WJP) Rule of Law Index
and the Global Impunity Index. Analyzing the data of both within their various
editions, it is possible to observe not only the evolution of scores but how the
methodology has changed. This illustrates the complex task of measuring the rule of
law. Interestingly, both indexes launched subnational indexes throughout the years to
measure the performance of the Mexican states and obtain more in-depth insights.
The first edition of the WJP Index was launched in 2009 (Agrast et al. 2009). In
the first edition WJP did not provide a general score for each country. Instead,
factor scores were presented.
Table 1.1 presents the four highest and four lowest subfactor scores for Mexico
in the 2009 edition, comprising four factors and 16 subfactors. As these data show,
the highest subfactor involved the design of laws. The lowest scores, in contrast,
involved the effectiveness and accountability of public agencies and actors.
The WJP index evolved and began to rank countries and provide a general score.
In the 2017–2018 edition, Mexico occupied position 92 out of 113 countries. Its
highest factor was open government and its lowest criminal justice and absence of
corruption. The subfactor scores reveal that accountability and corruption control
are still relevant challenges that have changed little in a decade (Tables 1.2 and
1.3).
On the other hand, the Global Impunity Index2 shows that Mexico ranks very
poorly against other countries on impunity. Since the 2015 edition Mexico has had
the worst position in the Americas (Table 1.4).
Beyond the deficiencies of Mexican government institutions, the behavior of
Mexican citizens does not appear to contribute towards closing the gap to reach an
effective rule of law. For example, Mexicans’ perception of what could be called
democratic values is very revealing. In 2001 the Secretaria de Gobernación –
National Affairs – launched the Encuesta Nacional sobre Cultura Política y
Prácticas Ciudadanas. The answers to some of the questions are very interesting:
44% of the participants considered that neither authorities nor citizens respect the
law. 68% considered that both politicians and citizens were involved in corruption.
The questions varied in subsequent editions, but the results show a similar pattern.
In the 2008 edition, 64% considered that people did not respect or barely respected
the laws. 68.2% considered that the laws were enforced to the benefit of a minority
(SEGOB 2008). In the 2012 edition, 80.3% of the participants answered that they
had no or very little trust in Mexican laws.
As the readers shall see in Section 1.3, for the first time WJP launched a sub-
national index for Mexico. One of the questions in the survey asked people which
three words they thought of when they hear “rule of law”. The most frequent words
2
The Global Impunity Index was launched in 2015 by the Centro de Estudio sobre Impunidad y
Justicia belonging to the Universidad de las Américas Puebla. The index evaluates security and
justice systems in Mexico.
Table 1.1 World Justice Subfactor Factor

Project (WJP) Rule of Law score
Index (2009)
Government powers limited by constitution 0.87
Compliance with international law 0.63
Laws are clear, publicized and stable 0.62
Governmental and non-governmental checks 0.56
Accountable government officials and agents 0.38
Accountable military, police, and prison 0.36
officials
Fair and efficient alternative dispute resolution 0.34
Fair and efficient administration 0.31
Source WJP (2009)
Table 1.2 WJP Rule of Law Factor Factor score

Index 2017–2018
Open government 0.61
Order and security 0.59
Fundamental rights 0.52
Constraints on government powers 0.46
Regulatory enforcement 0.44
Civil justice 0.40
Absence of corruption 0.31
Criminal justice 0.30
Position in ranking 92/113
Source WJP (2018)
Table 1.3 WJP Rule of Law Factor Factor score

Index 2017–2018
Absence of civil conflict 1.00
Freedom of religion 0.74
Publicized laws and government data 0.68
Right to information 0.63
Absence of violent redress 0.29
Sanctions for official misconduct 0.25
Absence of corruption (in the legislature) 0.19
Effective correctional system 0.19
Source WJP (2018)
Table 1.4 Global Impunity Position/Number of countries Score

Index 2015
2015 58/59 75.7
2017 65/69 69.21
Source Le Clercq/Rodriguez (Coords.) (2018)
were: respect, rights, and justice. However, 52% of the participants did not have an
answer to the question.
The relevance of evaluations and measurements, as some of the authors will
advocate, lies in the fact that diagnosis allows direction to be given and priorities to
be set for public policies. Measuring also allows Mexico to be contextualized and
put into perspective against other nations.
1.2 Understanding the Proposal of Rebuilding the State

Institutions – An Overview
Having established the relevance of discussing the rule of law nowadays, globally
and locally, we should say that this book is an attempt to contribute to the public
debate on the fragility of the rule of law. Its purpose is to identify the key factors
which explain the endurance of its fragile condition in Mexico, opening possible
routes to possible solutions and further research. Three axes are proposed: first the
concept and measurement of the rule of law, second some factors that explain its
fragility in Mexico, and third specific cases of policy implementation in the country.
The opening section of this book is dedicated to examining the concept of the
rule of law and the difficulties of measuring it. It is generally accepted that there is
no consensus on the definition of the concept of rule of law. Its multidimensional
nature allows the inclusion or exclusion of several competing attributes and the
adoption of distinctive analytical perspectives. Consequently, there is no consensus
on how to measure the health of the rule of law in a given country or society.
Conversely there is no argument about the importance and the necessity of mea-
surement tools. As we shall see in Chap. 4, the more information we have, the more
accurate the diagnosis that can be made.
In the first chapter in the section, Sarsfield opens the discussion by presenting the
main attributes and perspectives that leading authors advance when they deal with
the concept of the rule of law. He highlights that, along with other major concepts
in political science, there is no agreed or accepted definition. Following Sartori, he
takes as a starting point the delimitation of what is not considered rule of law.
Societal arrangements with the presence of the “rule by men” or “special
interest-based laws” are incompatible with the idea of the rule of law. This implies
that one’s actions must be regulated by external norms. Norms should not be
captured by subjective or arbitrary considerations. The enactment of a law and its
application should respect equality before the law – a condition that is broken when
laws are aimed at specific groups or individuals.
One of the most debated questions is how many and which attributes should be
included within the rule of law notion. Some conceptions favor thinner definitions,
whereas others prefer thicker ones. It is a very relevant question because the answer
will affect the applicability and the measurement of the concept, as we shall see
later in the book. An essential attribute addressed by Sarsfield is institutional
equilibrium: “laws must be able to domesticate, transform or constrain the behavior
of powerful actors”. This is particularly relevant in contexts where the executive
branch tends to concentrate power, as we can see in Latin American countries.
Finally, following Raz (1979), the author suggests that paramount attributes,
such as democracy, fundamental rights or justice, that can be included as part of the
rule of law should not be confused or regarded as synonyms. To do so would be to
risk losing the particularity of the rule of law concept.
Chapter 3 introduces a key issue of this book: does law effectively rule in
Mexico? In his article, Estrada Michel argues that Mexico lacks indicators to
measure compliance with the rule of law. The author also underlines the necessity
of addressing the rule of law within the constitutional theory, surpassing the borders
of other disciplinary approaches (political science or economics). Following these
ideas, he proposes a set of indicators covering a variety of relevant areas: human
rights, impunity, corruption control and the performance of specific government
bodies, such as the agency in charge of performing financial audits of government
offices.
In his view, the rule of law must not ignore Mexico’s transition process to
democracy. A positive achievement of the past decade is the human rights 2011
reform that created a network of agencies in the country to promote and guarantee
human rights at state level. Another positive step forward is the autonomy of
Prosecutor Offices. To conclude, the author maintains that the key to straightening
the rule of law in Mexico is combating impunity.
The final chapter in Part 1 reminds us that, beyond the conceptual debates, the
rule of law notion is related to essential aspects of everyday life, such as walking
without danger in our neighborhoods, practicing religion and enforcing contracts.
Granted the lack of consensus, the World Justice Project (WJP) attempts to fill the
aforementioned conceptual and measurement gap by introducing a comprehensive
framework of indicators to capture its multidimensional nature and monitor the
performance of countries. The purpose is to facilitate evidence-based
policy-making.
The authors present an overview of the WJP’s efforts to measure the rule of law
in Mexico. Since 2009, the country’s performance has been measured every one or
two years, along with more than 100 nations worldwide as part of its Rule of Law
Index. For the first time, the WJP adapted its methodology to produce a subnational
index to obtain specific country insights, resulting in the Mexico States Rule of Law
Index. The new index covers the same standard eight factors as the global study:
constraints on government powers, the absence of corruption, open government,
fundamental rights, order and security, regulatory enforcement, civil justice,
criminal justice. These factors were adapted to the Mexican context in order to
produce relevant data that would identify which states and what specific factors
show the greatest opportunities and weaknesses.
The WJP index stands out because country reports are based on the collection of
primary data: the perception of the general public along with country experts’
opinions. One of its limitations is the fact that the study covers only the three largest
cities in each country. The Mexico States Rule of Law Index is a decisive effort to
overcome this issue.
Overall, the rule of law in Mexico shows a prevailing precarious performance
with significant negative effects on the everyday life of Mexicans. Results for each
state can be found in detail in this article. In the future, the WJP envisions pro-
ducing thematic data reports. The WJP’s experience is a clear demonstration that,
regardless of conceptual and methodological challenges, the measurement of the
rule of law is invariably essential to facilitate more effective policy design. The
Mexico States Rule of Law Index should be a relevant reference for state gov-
ernments that would seriously embrace the objective of straightening the rule of
law.
The second section of the book covers the most substantive contributions to the
debate on the structural fragilities of the rule of law in Mexico. The section opens
with a crucial issue: How many constitutional reforms produce rule of law?
The Mexican constitution is one of the most long-living fundamental laws in the
world that are still in effect. Since it was adopted in 1917 after the Mexican
Revolution, it has shown great vitality and is to be transformed by incorporating
new rights and institutional change which echo political and social changes. Yet
constitutional change does not necessarily produce positive effects. The Mexican
constitution has undergone 233 amendments which reform 698 articles, damaging
its order and coherence. The author suggests that reforming the constitution has
become a fetish: “political actors assume that everything that is integrated (in the
constitution) updates, strengthens, improves or even guarantees coherence, gener-
ating a process that reinforces itself through time”, the main assumption being that
changing the text will change the reality. The WJP Rule of Law Index along with
other measurements like The Global Impunity Index (Le Clercq/Rodriguez 2018)
have clearly demonstrated that Mexico suffers significant and pervasive deficiencies
in enforcing laws and actually applying changes that were introduced in the fun-
damental law. The third section of the book will provide some relevant examples.
The first chapter in the section presents an extensive quantitative analysis of
institutional reforms of Mexican fundamental law, including constitutional reforms
by presidential period, by decade, and by topic, and the most reformed articles. One
of the main conclusions of the chapter is that amendments show that the Mexican
constitution represents more a battlefield of competition driven by political aspi-
rations and projects rather than a milestone in the rule of law. This conclusion is
complemented by indicators presented in the previous section: several surveys have
shown the feeble trust of Mexicans towards theirs own laws and the lack of respect
for them.
In this context, the main challenge for Mexico regarding this matter is under-
standing the gap that prevents the translation of constitutional change into
significant improvements to the rule of law. Relying on several scholars, the author
notes some of the challenges which need to be overcome: design issues, difficulties
in implementation related to secondary legislation, poorly coordinated and under-
funded agencies, social conflicts, and high levels of corruption and impunity.
The next contribution in this section is an overview of Mexico’s current inse-
curity crisis. Vidal Romero presents a broader perspective of violence during the
twentieth century. He reminds us that one of the primary tasks of a state is to
impose order within its territory, a sine qua non to the flourishing of society.
According to this logic, citizens would rationally prefer democratic order to alter-
native forms or organization as a means for securing respect for basic rights and
enjoying favorable conditions for economic prosperity. As the WJP Rule of Law
Index shows, even in democratic settings, adherence to law and order results in a
variety of performances across nations. Failures of the rule of law open the gates for
illicit behavior, a trend that could get out of control when impunity and economic
incentives work in a negative way, as the case of Mexico shows.
For some authors, Mexico’s security crisis can be explained by political plu-
ralism. The transformation of the Mexican political system brought major changes
to the structure of the Mexican state. Others focus more on the failures of the
Mexican government’s strategy to deal with criminal organizations. Vidal Romero
maintains that, in addition to these possible explanations, there are other factors that
contribute to the rising violence in Mexico. Relevant changes in the strategy and the
operational function of cartels, and the disconnection between the taxing authorities
and the specific public bodies that actually spend government budgets also lead to
corruption and undermine local authorities’ capabilities to fight crime. The com-
bination of a fragile rule of law and uncontained violence creates a vicious cycle,
deteriorating law and order even further. On the whole, Mexico’s biggest challenge
is to create institutions and the right incentives so that individuals, organizations,
and public officials adhere to the norms. Fixing fiscal arrangements and regulating
drugs could also be game changers.
In the next chapter, Olivares-Mendez and Triculescu plunge into one of the most
sensitive topics of our times on a global stage: irregular immigration and human
rights. Irregular migrants end up involved in a “grey area” at the crossroad between
globalization, sovereignty, and the rule of law. Although Mexican constitution
acknowledges protection for all, not just for its citizens, the constitution’s content is
disconnected from reality, as many Central Americans passing through the country
experience day by day.
The authors signal a key issue that came after the adoption of the Human Rights
Reform in 2011. The pro personae principle was undermined in 2013 when the
Mexican Supreme Court constrained the application of international treaties to
those rules that do not contradict exceptions contained in the Constitution.
According to the authors, this represents a setback to the application of the pro
personae principle in the country.
The Migration Act, adopted in 2011, was indeed a step forward in the right
direction. Unfortunately, weak institutional capacities, unqualified staff, and a
limited budget, among other obstacles, have seriously damaged the effective
implementation of the law. Audits by the National Institute of Migration had

reported significant deficiencies. Mexican immigration officers repeatedly detain
people for longer periods than the rules allow and do not provide proper assistance
to migrants. This is relevant if we bind it with the report of the United Nations
Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment, acknowledging that torture in Mexico is generalized.
Migration is by nature a transnational issue, as migratory flows between the
United States, Mexico, and Central America or African and European Nations
clearly show. Mexico’s condition as a country that is simultaneously origin, pas-
sage, and destination for migrants places it in a unique position to push forward the
global agenda, securing the protection of the rule of law for both regular and
irregular migrants.
The next chapter presents an infrequent and sometimes ignored discussion about
the rule of law: the role of citizens. This contribution invites us to reflect on the role
that the members of a society as individuals have in public affairs. The author
maintains that the effectiveness of government bodies is not the only condition to
achieve a forceful rule of law; another necessary one is the participation of the
people motivated by an individual moral obligation.
However, Mexicans do not seem to be cooperative or show sufficient involve-
ment, beyond showing up to vote on elections. Existing mechanisms that empower
citizens, such as the possibility of proposing legislation or demanding referendums
on relevant topics, are scarcely used.
The chapter provides a thought-provoking discussion with other scholars on the
principle of fairness, a principle that is proposed as the foundation of the moral
obligation to participate and cooperate in a community. Citizenry tends to ignore
the fact that public goods are the result of an “unbroken chain of coordinated
actions” that demand the participation of its members. “When an individual enjoys
a benefit available for everybody and this benefit exists just because of the sacrifice
of others, then that person will have an obligation to do her fair share to maintain
that benefit”. Minimal actions such as voting, reporting crimes, paying taxes or
collaborating with neighbors and organizations are the proposed fair share. The
promotion of a broad civic education policy in Mexico could be a joint effort by
schools and universities, along with civil society organizations and relevant public
agencies, to set a starting point for building the social construct of the rule of law.
According to Fierro (Chap. 8), democratization and the end of the hegemonic
political party system in Mexico lead to further demands, such as transparency and
accountability mechanisms, the necessity of a civil service and the promotion of
human rights. Accountability mechanisms should be an essential component of the
rule of law as a means to increase society’s control over government bodies and to
get better results. The Mexican legal system adopts the French tradition oriented
towards control of powers and the protection of human rights.
Fierro refers to administrative law as a domain where conflict resolution was
dominated mostly by informal means until the end of the twentieth century.
Underfunded courts, the lack of qualified staff, restraints on independence and the
limitations in dealing with administrative activities are some of the main challenges
that limit the potential benefits of administrative law in Mexico. In this context, the
administrative courts’ purpose is to determine whether government acts guarantee
human rights protection and comply with norms fixed by the constitution. To this
end, ‘nullity’, “state liability” and ‘amparo’ trials are mechanisms available to
Mexican citizens to control public bodies protecting them from the negative con-
sequences of their actions. Financial compensation, for example, is established by
the Mexican constitution to repair damages.
The amparo trial is the mechanism by which citizens are entitled to challenge
actions they considered contrary to the constitution. It is considered the most
powerful accountability mechanism in the Mexican legal system because it is
applicable to all branches and orders of government. The 2011 human rights
amendment made amparo mechanisms more flexible. Nowadays, class actions and
legally pursuing private entities as providers of public services are possible.
However, more flexibility is needed since sixty per cent of amparo cases are
dismissed due to case overloads and the excessive formalities of the legal system.
All in all, Mexican citizens’ ignorance of the available accountability mecha-
nisms, coupled with technicalities, are major barriers for its broader use.
To close the second section of the book, Roman Gonzalez brings to our attention
the importance of the education of future lawyers. He maintains that having a
significant number of law schools and lawyers in Mexico has not led to greater
strengthening of the rule of law in the country. According to the author, this
situation suggests that something is wrong. Training lawyers is more a matter of
quality than quantity. Therefore, enhancing the quality of the education of law
students would have positive effects across the Mexican legal system. As an
example, the next generation of lawyers could be trained to be more sensitive and
get more technical skills to promote human rights.
Excessive focus on content-memorizing, lack of context, weak analytical and
argumentative skills and poor knowledge of international norms are some of the
educational deficiencies that law school students show – deficiencies that, in time,
result in interpretation and application mistakes once in the labor market.
The aforementioned 2011 Humans Rights amendment makes addressing this
well-known situation especially timely. To Roman Gonzalez, without pertinent
efforts to redress law students’ education in Mexico, the possibilities of the reform
succeeding are very limited. Law schools can play a decisive role to improve the
likelihood of success, given the social relevance of the profession as intermediaries
between the legal apparatus and the people seeking for justice.
The third and last section of the book covers relevant analysis of so-called
“structural reforms” introduced in Mexico over the past decade: criminal justice
system, anti-drugs strategy, corruption control, energy sector, and economic com-
petition. All of them are relevant domains that illustrate the challenges of translating
the rule of law into concrete public policies.
The section’s opening chapter (Novoa and Silva) discusses the Mexican criminal
justice system. More than ten years have passed since Mexico introduced major
changes in 2008. The aim was to improve the quality and to guarantee respect of the
rights of both victims and suspects of crime. Several statistics and reports show the
disturbing condition of the criminal justice system in Mexico. Only ten per cent of
crimes are reported by victims, mainly because people consider it a waste of time
and do not trust the authorities. As an illustration, according to the Impunity Global
Index (2018), the State of Mexico has the highest impunity levels. This state has the
largest amount of cases (202,205) in the country. Of those, only 0.59% (1,209)
resulted in a sentence.
The judicial system reform was adopted to promote the transition from an
inquisitorial system to an adversarial and accusatorial one. Mexican Congress fixed
2016 as the deadline for full implementation. Today, the implementation is still in
its early stages.
According to the authors, one of the main obstacles to the success of the reform
was the feeble political will of state governors towards the reform. This could
suggest that they expected the reform would be abandoned. Coordination issues,
low budgets, and poor investigative capacities are additional deficiencies that limit
the potential of the reform.
Another major obstacle is the current legislation of amparo trial, which does not
operate coherently with the criminal reform system. On the whole, the authors
maintain that the greatest limitations of the system are not to be found in the
regulation but in the day-to-day operational and institutional failures.
Christopher Ballinas presents a review of the National Anti-corruption System
(SNA). “Mexico has no tradition of checks and balances or independent watchdogs,
and corruption was endemic”. Ballinas provides a description of Mexican political
institutions where, for many decades under PRI, the president held privileged legal
and extralegal powers. In this context, institutional change was more a mechanism
to maintain power than a path to transformation and prosperity. The behavior of
political actors and public officials was indeed motivated by particular interests and
a desire to maintain the status quo.
Former Mexican President Enrique Peña Nieto (2012–2018) launched an
ambitious reform agenda which managed to obtain the cooperation of the main
opposition political parties (The Pacto for Mexico). However, the Casa Blanca and
other political scandals resulted in corruption control becoming a mainstream topic
in the country, forcing the president’s agenda to take more decisive steps to foster
corruption control: The introduction of the SNA was the consequence. The SNA
was conceived as an entity to coordinate the anti-corruption capabilities of existing
government bodies with the participation of civil society both nationally and at the
level of the individual states. Yet the SNA has not tackled major political scandals –
not just the Casa Blanca case but also others such as the Odebrecht. According to
Ballinas, the SNA is symptomatic: “the government creates a panel to address a
major issue, only to starve it of resources, inhibit its progress or ignore it, or make
rules so convoluted as to make the system unworkable”.
The next contribution, by Jorge Romero, takes a critical perspective of the
so-called “war on drugs” initiated by the Mexican Federal Government during
Felipe Calderon’s (2006–2012) administration. This strategy has been criticized
from different angles: as a human rights crisis and for its social and economic
implications. Romero presents a new perspective: institutional analysis, bringing
attention to the distribution of power at the local level and its relationship with the
drug policy.
The author introduces the figure of the ‘cacique’, a form of political interme-
diary. In its origins, the ‘cacique’ referred to a person who had legitimate leadership
over a certain territory. This figure illustrates the relationship between formal in-
stitutions and de facto power allocation mechanisms that have been in place in
Mexico for centuries. Taking a path-dependence approach, the author shows how
the cacique figure evolved from a formal institution to an informal one. “The
cacicazgo emerges as a mechanism of clientele administration that exercises control
over local populations as a bargaining chip in perpetual negotiation with federal
political leaders”.
Jorge Romero provides an overview of the evolution of the drug policy in
Mexico. He subscribes to the argument of other scholars, highlighted by Vidal
Romero in his article about Security, who relate the significant increase in the
power of drug cartels to the democratization process and the end of the political
monopoly of PRI. Several authors had underlined that political changes disrupted
local agreements. Romero remarks on the necessity of more research to analyze
Mexican State cases, such as Michoacan, where the “drug on wars” began in 2006.
Since then, Mexican armed forces have been deployed throughout the territory
without clear legislation. For Romero, Mexico is in the midst of a transition process
to establish an open access social order.
The final chapters present a review of economic reforms. First, Tony Payan
presents an analysis of the relationship between politics and public policy. Taking
as a case study the reform of the Mexican energy sector, he shows that policies
produce incentives, and resources and influence actors (opposition, interest groups,
citizens), provoking consequences in politics. In parallel, political changes affect the
design and implementation of policies. “Public policy and politics produce feed-
back loop dynamics that end up changing the policy environment and threatening
the implementation and consolidation of a policy path”.
The reduction in Mexico’s oil production coupled with international factors led
the Government to reform the energy sector. The author identifies poverty and
pervasive inequality, along with corruption, organized crime, and impunity, as
domestic factors that undermined the implementation of the energy sector reform.
External factors such as changes in USA politics also had consequences in Mexico.
The sluggish economic results damaged the support of Mexican people for
neoliberal economic reforms introduced over the previous decades, which con-
tributed to the election of a left-wing candidate to the presidency in 2018. The
energy sector was, in a way, the ultimate stage of an aggressive economic agenda
launched by PRI and PAN.
The aforementioned factors have a strong relation to the rule of law. For Payan,
the understanding of the evolution of political, social and economic indicators
cannot be separated from keeping track of the shifts in the public policy
environment.
In the closing chapter of the book, Solange Maqueo presents a comprehensive
overview of the evolution of economic competition legislation in Mexico. Over the
past three decades, Mexico’s political system has undergone major changes that
some of the authors of the book have described. These transformations in politics
were accompanied by no less significant changes in the Mexican economy.
Successive reforms gave place to the Federal Law in Economic Competition in
1992 and the creation of special public agencies in charge of its implementation.
Significant amendments followed in 2006, 2011 and 2013. This twenty-year period
shows how the agencies in charge of enforcing economic law (the Federal
Competition Commission, the Federal Telecommunication Commission, and their
successive names) were adjusted and acquired more autonomy and legal powers,
placing Mexico on a par with best international practices. In this gradual process,
the author highlights the importance of the creation of specialized economic
competition courts. Economic competition law represents a domain where the rule
of law has evolved in the right direction.
This book represents a common effort of scholars who, in recent years, have
been working on different topics relevant to greater understanding of the complex
Mexican context. We strongly believe that the arguments, data, and analyses that
are presented in this book could lead to serious reflection by stakeholders and,
maybe, facilitate public policy design.
Although the authors have different perspectives and conclusions, we share a
common ideal: the desire to foster coordinated actions to change the state of affairs
that govern us and keep us far from an authentic rule of law.
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Ciudadanas; at: www.encup.gob.mx/es/Encup/Documentacion (15 January 2019).
Tamanaha, Brian Z. (2004). On the Rule of Law (New York: Cambridge).
The Economist Intelligence Unit (2018). Democracy Index; at: http://www.eiu.com/topic.aspx?topic=

democracy-index&zid=democracyindex2018&utm_medium=social&utm_source=twitter&utm_
name=democracyindex2018&linkld=100000004653972 (15 January 2019).
The Fund for Peace (2018). Fragile States Index; at: http://fundforpeace.org/fsi/ (15 January
2019).
Waldron, Jeremy (2016). Political Political Theory (Cambridge: Harvard University Press).
World Bank (2018). World Governance Indicators; at: http://info.worldbank.org/governance/wgi/
#reports (15 January 2019).
World Justice Project (2018). The WJP Rule of Law Index 2017–2018 (Washington, D.C.); at:
https://worldjusticeproject.org/sites/default/files/documents/WJP-ROLI-2018-June-Online-
Edition_0.pdf (15 January 2019).
Part I
The Concept of Rule of Law and Its
Measurement
Chapter 2
Conceptualizing the Rule of Law
Rodolfo Sarsfield
Abstract With the rise of research on the rule of law during recent years, the
meaning of that concept has become a subject of much debate. The lack of con-
sensus becomes quickly noticeable when some of the existing concepts of the rule
of law are examined. This chapter seeks to explore the different concepts of the rule
of law – and its definitional prerequisites – present in the literature. This review is
organized according to two competing accounts of conceptual analysis used in
political science, hierarchical structures (e.g., Møller/Skaaning 2014), and radial
categories (e.g., Collier/Mahon 1993). Hierarchical structures organize different
definitions of a concept along a continuum from the thinner (or minimalist) defi-
nitions to the thicker (or maximalist) definitions, while the conceptual analysis of
radial categories proposes the existence of a “primary category” (Collier/Mahon
1993) with different “diminished subtypes” of the concept (Collier/Levitsky 1997).
Thick and thin conceptualizations “involve trade-offs between generality and
specificity, quantity and quality, and absolutes and matters of degree” (Coppedge
2002: 1).
Rodolfo Sarsfield is an Associate Professor at the Autonomous University of Querétaro. His

research focuses on the study of social norms, preference formation, and political attitudes, with
an emphasis on the attitudes toward democracy, corruption, informal rules, and the rule of law in
Latin America. Also, he studies concepts and methods in political science. He is the editor of the
special issue for Justice System Journal on “The Rule of Law” (with Ryan E. Carlin). He also is
the author of Research Design (with G. Dave Garson, Statistical Associate Publishing,
Asheboro, NC). He has published more than two dozen journal articles and contributions to
edited volumes. He received his Ph.D. in Political Science from the Facultad Latinoamericana de
Ciencias Sociales [Latinamerican Faculty of Social Sciences] (FLACSO) in 2004. He has been
Associate Researcher of the Latin American Public Opinion Project at Vanderbilt University,
and Affiliated Researcher of the Department of Legal Studies at the Centro de Investigación y
Docencia Económicas [Center for Research and Teaching in Economics] (CIDE). He is
currently a Board Member of the Committee on Concepts and Methods at the International
Political Science Association (IPSA), and he collaborates with the Mass Survey team for Team
Populism. Email: rodolfo.sarsfi[email protected].

https://doi.org/10.1007/978-3-030-31314-2_2
20 R. Sarsfield
! ! !
Keywords Rule of law Rule by law Democracy Individual rights Equality ! !
Law
2.1 Introduction
Along with other major concepts in political science, such as democracy (Collier/
Levitsky 1997; Munck/Verkuilen 2002), ideology (Gerring 1997), and populism
(Mudde/Rovira 2017; Weyland 2001), the rule of law seems to be an essentially
contested concept (Collier et al. 2007; Fallon 1997; Gallie 1956; Møller/Skaaning
2012, 2014; Waldron 2002). Several contesting conceptions of the rule of law have
been provided by Fuller, Finnis, Raz, and Dworkin, with as few as eight dimensions
(Fuller 1981), and as many as fourteen (Lauth 2001). Consensus on this essentially
contested concept may not be rapidly forthcoming.
With the rise of research on the rule of law during recent years, the meaning of
that concept has become a subject of much debate. The lack of consensus becomes
quickly noticeable when some of the existing concepts of the rule of law are
examined. Thus, many legal scholars think of formal legality – understood as the
attribute according to which laws must be general, public, prospective, certain, and
consistently applied – when they refer to the rule of law. Meanwhile, contemporary
economists (e.g. Fukuyama 2010) emphasize, as an attribute of the rule of law, what
they term established property rights. Others, instead (e.g. Belton 2005; Bingham
2010), regard a list of liberal rights – or, more generally, human rights – as a
definitional prerequisite for the concept of rule of law. Also, some political theorists
(e.g. Habermas 1996) claim that rule of law must be based on the sovereignty of the
people, affirming that the authority of laws ultimately rests on democratic consent.
Finally, other scholars, especially within the field of political science, propose that
the presence of public order – or legal behavior – must be considered a basic attribute
of the rule of law – i.e., a state of the world in which people typically obey the law
(e.g. Maravall/Przeworski 2003) and where individuals are appropriately safe-
guarded from crime and violence (e.g. Belton 2005; cf. Møller/Skaaning 2014: 4).
Although some scholars increasingly list the rule of law as a critical element of a
liberal democracy, others claim that it is possible for the rule of law – or at least
some of the attributes of this concept – to exist in non-democratic regimes, such as
China or Chile under Pinochet’s regime (Barros 2003; Chavez 2008; Peerenboom
2002, 2004). In this vein, there is a tradition that defines the rule of law merely as
the system of order imposed by states on their populations whatever character that
order happens to have. Thus, the rule of law would simply mean the ‘existence of
public order’. According to this stance, all modern societies would live under the
rule of law, regardless of whether their regimes are fascist, socialist or liberal states
(Friedmann 1952: 281; Kelsen 2009 [1967]; cf. Lovett 2016: 4).
This chapter seeks to explore the different conceptions of the rule of law – and its
definitional prerequisites – present in the literature. Thus, in the first part of this
2 Conceptualizing the Rule of Law 21
work, and following Sartori’s dictum, according to which an important first step for
having a concept is “distinguishing A from whatever is not-A” (Sartori 1984: 74),
this chapter aims to identify what is not the rule of law. Subsequently, in the second
section, this work provides a review of different attributes of the rule of law pro-
posed for different definitions of this concept. This review is organized according to
two competing accounts of conceptual analysis used in political science, hierar-
chical structures (e.g. Møller/Skaaning 2014), and radial categories (e.g. Collier/
Mahon 1993). Hierarchical structures organize different definitions of a concept
along a continuum from the thinner (or minimalist) definitions to the thicker (or
maximalist) definitions. The conceptual analysis of radial categories proposes the
existence of a “primary category” (Collier/Mahon 1993) with different “diminished
subtypes” of the concept (Collier/Levitsky 1997). Finally, some conclusions on the
different conceptualizations of the rule of law are presented.
2.2 What is Not the Rule of Law?
Little or no consensus exists with regard to the definition of the rule of law. What
occurs with the rule of law concept is, of course, not uncommon in this respect.
Most concepts in the social sciences are characterized by significant conceptual
debates (Gallie 1956). Therefore, the most valuable advice is to “treat the con-
ceptual disagreement in what Sartori (1970) refers to as a (methodologically)
self-conscious way” (Møller/Skaaning 2014: 7). In this vein, the classic work of
Giovanni Sartori suggests that in order to understand the singularity of any phe-
nomenon it is important to distinguish its opposites. When it comes to the rule of
law, the clearest two are the rule of men and special-interest laws.
2.2.1 Rule of Law, Not of Men
A frequent interpretation of the rule of law is set out it by contrast to the rule of
men. This contrast is presented as different antitheses: ‘the rule of law, not men’; ‘a
government of laws, not men’; ‘law is reason, man is passion’; ‘law is
not-discretionary, man is arbitrary will’; ‘law is objective, man is subjective’
(Tamanaha 2004: 122). The inspiration underlying this idea is that to live under the
rule of law is to not be subject to the vagaries of other individuals.1
1
It is worth noting that this conception of the rule of law seems be grounded on a negative view of
the human being. As it occurs with different ideological visions, often concepts in positive political
theory are based on different underlying assumptions about human nature. These different
assumptions “lead not only to different conclusions on particular issues, but also to wholly dif-
ferent meanings to such fundamental words as ‘justice’ [or] ‘equality’” (Sowell 2007: xi).
22 R. Sarsfield
“The rule of law, not men” is, in some way, “the antithesis of the arbitrary use of
the power” (Hamara 2013: 16). The rule of law is conceived as objective and in
conformity with reason, and as such is the opposite notion to the rule of men, which
is assumed to be subjective and arbitrary. To live under the rule of law – instead to
live under the rule of men – means to be protected from human nature, which tends
to be characterized by “bias, passion, prejudice, error, ignorance, cupidity, or
whim” (Tamanaha 2004: 122). A ruler who typifies the rule of law behaves
according to “factors external to himself – existing rules, principles, and reason”.
By contrast, a ruler who rules in concordance with the rule of men does not behave
according to “factors external to himself, but only to internal factors such as his
own needs, desires, or predilections” (Hamara 2013: 16–17).
However, the idea of “the rule of law, not men,” powerful as it is, has been
forever dogged by the fact that laws are not self-interpreting or applying. Since laws
cannot be applied without human interpretation and participation (Hampton 1994),
the boundaries between the rule of law and the rule of men become complex and
blurred. The operation of law cannot be sequestered from human participation. The
inevitably of such participation provides the opportunity for the reintroduction of
the very weaknesses sought to be avoided by resorting to law in the first place.
Additionally, the ideal of the rule of law – as the opposite concept of the rule of
men – is eroded by the often dual nature of the laws. On the one hand, in concrete
disputes, the demands of laws are often obscure, complex, and controversial. This
inescapable characteristic of the laws produces contentious legal decisions in terms
of their normative appropriateness (internal criticism). On the other hand, a legal
decision can be contested according to exogenous factors of the legal decision itself
(external criticism), such as “ideology or ethnicity of judge, the sex or social status
of the losing party, and the wealth or power of the victorious party” (Schedler 2004:
246). Legal decisions can be controversial from both an internal perspective and an
external perspective.
Therefore, establishing a clear boundary between the rule of law and the rule of
men is often very difficult, if not impossible. Despite the fact that human inter-
pretation and application of the law is unavoidable, it should not be concluded that
the rule of law is inevitably reduced to the rule of men (Waluchow 2007). Hence,
the principle of “the rule of law, not men”, although complex, should be considered
as a fundamental regulative model of the application of the laws.
2.2.2 Equality Before the Law, Not Special Interest Law
Equality before the law has a huge normative force in modern societies. In legal
theory, this principle has largely been proposed as a definitional prerequisite of the
rule of law (e.g. Fuller 1982; Lauth 2001).2 It is important to distinguish between
2
Joseph Raz is an important exception to this general rule.
two different dimensions of equality before the law: enactment of law and appli-
cation of law. A well-known characterization of equality before the law in terms of
legislation is negative: equality before the law and special-interest laws are mutu-
ally exclusive. Hence, it would be unjustified to say that a particular country is
characterized by the rule of law if particular interests are enshrined within the laws.
For instance, when “white legislators attach harsh penalties to the consumption of
drugs consumed by blacks and lenient penalties to the consumption of drugs
consumed by whites, they are promoting special-interests legislation” (Holmes
2003: 48). At the level of the application of laws, equality before the law is the
opposite of legislation that it will never be applied to specific groups or individuals.
If legislators attach penalties to the consumption of drugs consumed by any
citizen – without special distinction regarding race, gender, socio-economic status
or whatever other characteristic – but in its application by government officials only
the poor, women or immigrants are penalized, then we do not have equality before
the law.3
It seems to be inevitable that the generality of rules often results in both
over-inclusiveness and under-inclusiveness. The first problem emerges when a rule
stated in general terms applies to some situations that do not fit the purpose behind
the law. The second dilemma occurs when the same general rule fails to cover a
situation that it should. These two problems that characterize what Nonet/Selznick
(1978) call “Autonomous Law” are less likely to occur in the exercise of what those
authors identify as “Responsive Law”, that is, a thoughtful consideration of sub-
stantive justice.4
3
Achieving equality before the law is a very difficult task. A first puzzle appears when it is argued
that laws are inherently special-interests-based because organized interests, with varying degrees
of power, inevitably emerge in every society (Holmes 2003). A few powerful groups naturally
sprout forth and cannot be prevented from manipulating law to their private advantage.
Special-interests legislation, however unjust, “is not the exception but the rule”. It has been said
that “since human beings cannot escape from Original Sin”, man-made laws will always reflect
special interests, and that “[t]o be ruled impartially – that is, by laws not men – would be possible
only for a population of gods” (Holmes 2003: 47–48).
4
To avoid both over-inclusiveness and under-inclusiveness it can be useful to introduce the dis-
tinction between norms, standards, and rules. A rule “is like a numerical speed limit, whereas a
standard is like a norm that requires people to drive at a ‘reasonable’ speed” (Waldron 2016: 8).
Legal systems use both types of norm (Sunstein 1994): use standards for cases where the
appropriate decision may vary with ambient circumstances and it seems better to trust the
judgement of those who face a particular situation, rather than laying it down in advance.
24 R. Sarsfield
2.3 What Is the Rule of Law? Contesting Definitions

of the Concept
Several contesting definitions of the rule of law characterize the literature in

political science, legal studies, and other social sciences.5 Different meanings of that
notion have been provided by Fuller, Finnis, Raz, and Dworkin, among other
scholars. The lack of conceptual clarity of the rule of law has not, however, stopped
empirical analysis of its causes and consequences. In spite of the limited systematic
accounts of what is the rule of law, the term is abundantly present in political and
legal research as a dependent variable (Barros 2000; Joireman 2001, 2004;
Hansson/Olsson 2006; Hayo/Voigt 2005; Hoff/Stiglitz 2004; Lovett 2016; Møller/
Skaaning 2014; Sandholtz/Taagepera 2005), as well as an independent variable
(Carothers 1998, 2006; Barros 1997; Haggard et al. 2008).
Examination of the recent literature on the rule of law shows an increasing
interest in the discussion about the measurement of that concept (Carothers 1998,
2006; Lovett 2016; Møller/Skaaning 2010; Skaaning 2009; Waldron 2002).
However, much less work has been done on conceptualization of the rule of law.6
One reason for the absence of research on the concept of rule of law could be the
aforementioned fact that several authors have considered the rule of law as an
essentially contested concept (e.g. Fallon 1997; Waldron 2002). As a synthesis of
the state of affairs in this matter until relatively recently, it has been said that the
debate on the conceptualization of the rule of law is a task that “should be aban-
doned and replaced with the individual concepts from which it is constituted”
(Ríos-Figueroa/Staton 2008: 1), since that notion is broad and multidimensional.
Attention to disputes over the meaning of concepts is a fundamental aspect of
political science. A growing body of work considers the systematic analysis of
concepts to be an important component of political methodology (Adcock 2005;
Collier/Levitsky 1997; Collier/Mahon 1993; Gerring 1997; Goertz 2006; Sartori
1970, 1984; Sartori et al. 1975; Schaffer 1998). The clarification and refinement of
concepts is a “fundamental task in political research, and carefully developed
concepts are, in turn, a major prerequisite for meaningful discussion about
5
With regard of the contested meaning of the concept, it is worth noting that no government in the
world today rejects the notion of the rule of law. Those in power repeatedly espoused the virtue of
being bound by the law. However, a good percentage of those governments are far from showing
respect for some basic principles of the rule of law. The widespread use of the notion seems to
reflect the considerable legitimacy that the rule of law has around the world at present. Also, the
extensive utilization of that concept could be reflecting ignorance or disagreement about the
characteristics of the rule of law. As government officials do not explicate the ideas that they
associate with the rule of law, its substantive meaning remains unclear, especially when political
use is made of it alongside other socially desirable concepts, such as democracy (Schedler/
Sarsfield 2007). However, even when it is more rhetoric that realistic, the use of the term is of
fundamental significance.
6
Significant exceptions to this general rule are Møller/Skaaning (2012, 2014) and Tamanaha
(2004, 2007).
measurement validity” (Adcock/Collier 2001: 529–532). As Giovanni Sartori

established in a seminal paper, “concept formation stands prior to quantification”
(Sartori 1970: 1038).
However, researchers often tend to propose attributes for a concept without
careful consideration of the theoretical adequacy of such definitional prerequisites
or the logical relationships between those attributes. To avoid this shortcoming,
discussion of the existing alternative conceptions of the rule of law should include
both an examination of the mostly mentioned attributes in the literature as well as a
review on the conceptual analysis behind the relationships between those attributes.
Regarding the conceptual analysis of the rule of law, examination of the liter-
ature shows that some scholars have proposed the existence of a hierarchical
structure behind that concept (e.g. Møller/Skaaning 2014), whereas other authors
have explored definitions based on the conceptual logic of what have been termed
“radial categories” – or family resemblances – (Collier/Mahon 1993) that suggest
the existence of trade-offs between those attributes (e.g. Lauth/Sehring 2009).
Hierarchical structures derive from the classical Aristotelian logic of the con-
ceptual analysis employed by Sartori (1970), which organizes the different defini-
tions proposed in the literature along a continuum from the thinner (or minimalist)
definitions to the thicker (or maximalist) definitions. Such conceptual analysis
entails thinner definitions being included in thicker definitions. In other words, such
logic is conceptually premised on the existence of a hierarchy between the attributes
of a concept.
The conceptual analysis of radial categories involves the existence of tensions
between the attributes of a certain concept. Thus, such trade-offs between the
attributes of rule of law imply a “radial concept” or a “primary category” (Collier/
Mahon 1993) with different “diminished subtypes” (Collier/Levitsky 1997), each of
which is defined by a missing attribute. In the realm of radial categories what
matters is “to tease out diminished subtypes from a comprehensive primary cate-
gory, with each diminished subtype representing functionally different combina-
tions that deserve individual attention” (Møller/Skaaning 2014: 30).
The next section surveys existing definitions of the rule of law. In this part of the
chapter, different attributes that have been proposed as forming part of that concept
are examined, and the conceptual analysis behind those definitions is revised.
Following an accepted analytical distinction for some concepts in political science
(e.g. democracy, populism, political regime) that include the very notion of rule of
law (e.g. Tamanaha 2004; Møller/Skaaning 2012, 2014), this section begins with
the thinner definitions before presenting the thicker definitions.
2.3.1 Rule of Law, Rule by Law, and Formal Legality
A well-known version of the rule of law is the notion that law is the mean by which
the state conducts its affairs (e.g. Kelsen 1960). In this sense, the meaning of the
rule of law is equivalent to a state in which all-state agencies’ actions are done
26 R. Sarsfield
through laws (Reynolds 1989). As a consequence, the rule of law means that all of
the government’s actions must be authorized by the law (Raz 1979). This meaning
of the rule of law has received two kinds of criticism. On the one hand, Joseph Raz
has asserted that the rule of law, understood in those terms, has no real meaning
since it collapses into the notion of rule of government: “If government is, by
definition, government authorized by the law, the rule of law seems to amount to an
empty tautology” (Raz 1979: 212–213). On the other hand, Brian Tamanaha claims
that this conception of the rule of law “carries scant connotation of legal limitations
on government, which is the sine qua non of the rule of law tradition”. A more apt
label for that version of the concept of the rule of law therefore seems to be “rule by
law”. Hence, rule by law is just “a partial meaning of the German Rechtsstaat (law
state), but no Western legal theorist identifies the rule of law entirely in terms of
rule by law” (Tamanaha 2004: 92).7
In order to expand our understanding of the difference between rule of law and
rule by law, it is important to introduce the distinction between rule by law and
formal legality (e.g. Tamanaha 2004, 2007; Møller/Skaaning 2012, 2014). Rule by
law means that the exercise of power is carried out through laws, whereas formal
legality means that those laws satisfy the principles of generality, prospectivity,
clarity, certainty, and equality in its application. It is worth noting that such defi-
nitions of rule by law and formal legality imply that the former is thinner and
included in the latter, since “formal legality also entails that rulers exercise power
via positive law [i.e. rule by law] but then adds certain requirements concerning the
characteristic of these rules” (Møller/Skaaning 2014: 17). In terms of conceptual
analysis, there are two consequences of those definitions. Firstly, rule of law is not
confined to the presence of rule by law but also requires the presence of formal
legality. Secondly, rule by law is included in formal legality, which entails a
hierarchical structure for the concept of rule of law.8 In other words, “rules of law
and rule by law occupy a single continuum and do not present mutually exclusive
options” (Holmes 2003: 49). Therefore, “rule by the law is arguably the minimalist
definition par excellence within the literature” (Møller/Skaaning 2012: 139).
Rule by law and formal legality – the latter including the former – seem to
encompass the concept of rule of law. Rejecting thinner definitions of the rule of
law, other scholars nevertheless deny that the scope of the rule of law is limited to
only those two attributes. According to Dworkin, the “rule book” conception of the
rule of law is incorrect. Law consists of more than just rules. It also consists of
immanent moral and political principles embodied within or standing behind the
rules and the cases. Law represents the customs and morals of the community
(Dworkin 1977, 1985, 1986). Law constitutes not just a coherent and integrated
scheme of rules but also moral principles that reflect the life and vision of the
community.
7
Italics in the original.
8
For a systematic discussion of this topic, see Møller/Skaaning (2012).
However, there has also been much criticism of thicker theories of the rule of
law. One well-known criticism claims that in a “deeply pluralistic society
Dworkin’s conception has questionable value, since in such societies there are
competing sets of moral principles” (Tamanaha 2004: 80–81). Beyond this con-
troversy, there would be some agreement that it is not possible to conceptualize the
rule of law without rule by law and formal legality. Accordingly, it would be
possible to affirm that, on the one hand, both rule by law and formal legality are
individually necessary conditions for the rule of law. On the other hand, no con-
sensus exists on whether rule by law and formal legality are jointly sufficient
conditions for the rule of law. When thicker conceptions add additional attributes
(for instance, individual rights), such definitions wouldn’t accept that rule by law
and formal legality are jointly sufficient conditions for the rule of law.9
2.3.2 Rule of Law, Legal Behavior, and Institutional

Equilibrium
Another attribute of the concept of the rule of law that has been proposed in the
literature – at least among political science scholars – is the existence of an insti-
tutional equilibrium. This attribute is understood as a state of the world in which
both actors within the state and societal actors typically behave according the law.
In other words, there is an institutional equilibrium in a country when the behavior
of both governmental agents and societal agents typically converges with its
political institutions, understood as the existing formal and written rules (e.g.
Maravall/Przeworski 2003; Maravall 2003; Sánchez-Cuenca 2003).10 Equilibrium
is institutional only if all the powerful interests customarily channel their conflict
through law.
Hence, institutional equilibrium permits the set of possible actions of actors to be
defined. In particular, laws must be able to domesticate, transform or constrain the
behavior of powerful actors. Thus, institutional equilibrium requires that organized
groups act obeying the laws. Unless “political, including legal, institutions are at
least somewhat independent from military or economic power, the effect of
9
Ironically, rule by law is perhaps best appreciated by comparing it with situations in which it is
lacking. In the absence of some other source of predictability (like widely shared social norms or
customs), not knowing how government officials will act in response to one’s conduct or the
behavior of others is to be perpetually insecure. A society without rule by law will be condemned
to a disagreeable state of uncertainty. For a revision of this question, see Tamanaha (2004).
10
However, some scholars have claimed that the state of the world in which state actors and
societal actors “recognize and act following the law” is an attribute of another concept rather than
the rule the law, that is, social order or public order (e.g. Møller/Skaaning 2014). The extent to
which laws can keep violence or crime at bay in the relationships between individuals and groups
is a possible result or outcome of the functioning of the rule of law (basically understood as formal
legality). Therefore, that result should be conceptualized as a consequence of the rule of law but
not as the rule of law itself.
28 R. Sarsfield
institutions cannot be distinguished from the effects of powerful actors” (Maravall/

Przeworski 2003: 8). In other words, a society comes closer to the rule of law when
power is not monopolized and the law is not used by the few against the many
(Holmes 2003).11 In contrast, when governmental actors and/or societal actors
defend their interests by extralegal means (i.e. informal institutions, corruption,
violence), a country will be far distant from the rule of law. When actors act
according to an uneven distribution of power and the source of their behavior is
external to institutions – for instance, the Mafia in the Italian case (Guarnieri 2003)
– a country becomes distant from institutional equilibrium.
As a definitional prerequisite of the rule of law, institutions must be independent
of “brute power” (Sánchez-Cuenca 2003). In other words, powerful non-state actors
must obey the law. As is well-known, different countries face different dangers
depending where economic and political power is concentrated. In many new
democracies, some members of the private sector with a monopoly on the means of
production are a major threat. In the case of El Salvador, for example, “the judiciary
has been more focused on preserving the privileges of the economic elite than on
protecting the rights of all citizens” (Chavez 2008: 66). A different scenario is
represented by Colombia, a country in which “drug lords along with guerrilla and
paramilitary groups present a danger to established political institutions” (Chavez
2008: 66).
Actors in the state must also, of course, obey the law. In Russia and other
post-Communist nations in Central and Eastern Europe, including Albania, Belarus,
and Romania, the major challenge is the presidency, which may be elected
democratically but is thereafter subject to few constraints (Herron/Randazzo 2003;
Schwartz 1998). Executive dominance is also a threat to the rule of law in Tanzania
and Zambia (Gloppen 2003). In Bulgaria, the parliament interferes with judicial
autonomy (Melone 1996). In the case of Hungary, state administrative apparatus
violates the rule of law (Orkeny/Scheppele 1999). In Venezuela, the armed forces
remain a potential hazard alongside the executive, even though for most Latin
American countries the major challenge to the rule of law is no longer a military
coup. Across Latin America as a region, however, the concentration of power in the
presidency is a principal challenge to the rule of law. As a result of executive
supremacy, other state actors lack effective means to check the president. In the
11
Although conceptualization of the rule of law is relatively the same, Maravall and Przeworski’s
explanation differs from Holmes’s explanation. According to Holmes, “power politics incubate the
rule of law” (cf. Maravall/Przeworski 2003: 8). From his optimistic perspective, as organized
interests multiply, these interests will become organized, power will be dispersed, and the law will
be an instrument used by everyone. From the Maravall and Przeworski points of view, institutional
equilibrium will emerge only when “those groups that have the capacity to defend their interest by
extralegal means are also those best protected by the law”. In other words, “once law become an
effective instrument of some interest”, institutional equilibrium – rule of law – will emerge
(Maravall/Przeworski 2003: 8).
context of Latin American ultrapresidentialism, judges should have the capacity to

act as controls on the executive (Kapiszewski/Taylor 2006).12
The achievement of an institutional equilibrium seems to be logically subsequent
to rule by law and formal legality. Obedience to the laws (legal behavior) among
governmental and societal actors presupposes the existence of rule by law and
formal legality. Consequently, the two latter attributes are thinner and subsumed by
the former, as an institutional equilibrium requires governmental actors to exercise
power through laws (i.e. rule by law) and these laws to satisfy certain requirements
concerning the characteristics thereof (i.e. formal legality). Therefore, it seems there
is a hierarchical structure between these attributes.
It is worth mentioning that this hierarchical definition of the rule of law that
includes institutional equilibrium as an attribute nevertheless might also be analysed
from the competing conceptual analysis of radial categories. Thus, it is possible to
propose two “diminished subtypes” (Collier/Levitsky 1997) of the rule of law.
When the threats to the rule of law come from governmental agencies – for
instance, as in the Venezuelan case, with the Maduro’s government – what might be
termed an internally weak rule of law emerges. In a different manner, when threats
come from non-state actors – for instance, from drug trafficking organizations in the
case of Mexico – what might be termed an externally weak rule of law arises.
Accordingly, this conceptual logic leads to those two diminished subtypes being
teased out from the comprehensive primary category of the rule of law.13
2.3.3 Rule of Law, Judicial Independence, and the System

of Checks and Balances
Some scholars have highlighted the presence of an autonomous judiciary as a

prerequisite for rule of law. In the same vein, other authors have suggested that
independent courts are the essential attribute of the rule of law (e.g. Chavez 2008;
Ríos-Figueroa/Staton 2008). Hence, the rule of law requires judicial independence,
and judicial independence entails impartiality and political insularity (Fiss 1993).
The courts must be independent of all actors that tend to monopolize the power in
both state and society, “including the other branches of government, the military, or
powerful agents of private sector” (Chavez 2008: 65). It is interesting to note,
12
Although this chapter does not analyze the necessary inputs to making the rule of law possible, it
is worth noting that generality of rules is threatened by economic inequality. In countries char-
acterized by widespread economic hardship and social distress, the wealthy tend to have advan-
tages in the legal system while courts often fail to protect vulnerable groups (Méndez et al. 1999;
Ungar 2002). In their study of democratizing regimes, “scholars would do well to expand their
conception of rule of law to include greater emphasis on access to justice” (Chavez 2008: 76).
13
It is worth noting that these two diminished subtypes of rule of law are not mutually exclusive
conceptually (or empirically). Those countries in which threats come from both state actors and
non-state actors could be defined as nations with a very weak rule of law.
30 R. Sarsfield
however, that this definition of the rule of law does not take into account the
possibility that the judiciary itself might tend to monopolize the power.
Regarding the attribute of judicial independence as a definitional prerequisite of
the rule of law, an important issue emerges when considering the conceptual
relationship with the system of checks and balances, a fundamental condition that
has also been proposed as an attribute of that concept (e.g. Møller/Skaaning 2012,
2014; Nino 1996). In this sense, it is worth considering that the very notion of
judicial independence seems to be in conflict with the system of checks and bal-
ances.14 If public authority as a whole is to be limited, there must be no “unchecked
checked”. In other words, there must be no agencies within the state that can check
others without being themselves subject to checks. Are we asked to believe that
judges have no interests other than to implement “the law”, that their power to make
decisions is nondiscretionary or that independence guarantees impartial decisions?
Because the legitimacy of non-elected authorities rests on their impartiality, the
courts have an institutional self-interest in appearing to be impartial, or at least
non-partisan. However, “there are no grounds to think that independent judges
always act in a nondiscretionary, impartial manner” (Maravall/Przeworski 2003:
12).15 If the interpretation of the laws becomes the exclusive domain of unchecked
bureaucrats, the risk to the rule of law is evident; it is also evident with regard to
horizontal accountability and, consequently, the democracy (Guarnieri 2003).
The theory of the separation of powers asserts that only a sovereign whose
authority is divided will be a limited, moderated one. This theory defends clear and
stable boundaries between different branches of power. Power must be divided,
limited, and stable. Power must avoid the unconstrained will of rulers. Only a
divided state can be a limited one. In “opposition to Hobbes’s argument, those
conditions are the foundations of the rule of law” (Maravall/Przeworski 2003: 10;
Hampton 1994; Kavka 1986).16
Whereas the theory of the separation of powers is in favor of functional and
well-designed limits between the different branches of power in order to prevent
interference from one public authority on the functions assigned to another, the
theory of checks and balance asserts that each branch of government should
14
Checks and balances are also proposed as part of a constitutional system of the separation of
powers and democracy (Cameron 2002).
15
It is worth noting that the emerging literature on the rule of law in political science highlights the
fact that judicial independence depends on more than constitutional guarantees. In order to
determinate the degree of judicial autonomy in a given country, a consideration of informal rules
must accompany the analysis of rules outlined in national constitutions. Informal practices that
allow elected officials to control the courts often overshadow formal guarantees of judicial inde-
pendence. Informal practices can shape the incentive structure facing judges in such a way that
they are unlikely to oppose government policies. An understanding of informal practices that shape
behavior and incentives is essential where actual behavior is inconsistent with constitutional
provision. Actual practices “may reveal that formal institutions are mere façades that hide the
subordination of courts” (Chavez 2008: 67; Chavez 2004).
16
In such a case, a sovereign whose powers are circumscribed would be an individually necessary
attribute for the existence of the rule of law.
exercise some influence on the others (Vile 1967). Hence, a mere separation of
powers is not enough because separation of powers endows each branch with
unlimited latitude. For this reason, only if each public authority is allowed to
“exercise a part of the function primarily assigned to another, could [it] inflict a
partial loss of power on another” (Manin 1997: 54). Without a system of checks and
balances, it is possible for any particular authority to undertake actions unilaterally,
even though this authority does not have the consent or cooperation of some other
authorities.
Paradoxically, the rule of law might be weakened by the presence of unlimited
judicial independence. Instead, an attribute of the rule of law should be a system of
checks and balances that can ensure that each branch of government exercises some
influence on the others, including the judiciary. As a central issue, the very notion
of judicial independence might be problematic. There is no guarantee that the
judicial branch will be impartial if no accountability mechanisms for judiciary exist.
In this instance, the concern would be where the boundary between judicial ac-
countability and judicial independence should lie.
Finally, there are reasons to suggest that a conceptual trade-off between judicial
independence and the system of checks and balances exists.17 Hence, it seems
plausible to consider the concept of rule of law as a radial category with two
diminished subtypes, that is, a rule of law with an unchecked judiciary – or an
unchecked rule of law – (where the system of checks and balances for the judicial
power is missing but rule by law is present) on the one hand, and a rule of law with
a controlled judiciary – or a checked rule of law – (where the judicial independence
is missing but rule by law is present), on the other hand.18
2.3.4 Rule of Law, Democracy, and Individual Rights
Other accounts of the rule of law include two additional attributes for that concept:
democracy and individual rights. Of these two attributes, democracy (Tamanaha
2004) – or consent (Møller/Skaaning 2012, 2014) – has been the more contro-
versial. The very inclusion of democracy as a definitional requisite of the rule of law
is conceptually dubious. Instead, there are reasons to suggest that democracy and
the rule of law are two different concepts. In this vein, it has been affirmed that “[r]
ule of law and democracy are both desirable attributes of a political system”
(Ferejohn/Pasquino 2003: 242).
Democracy has been defined as “the inclusive election of law-givers and gov-
ernors” (Møller/Skaaning 2014: 23). Thus, “democratic rule minimally requires
17
It is worth mentioning that since none of those attributes lends itself to a hierarchical structure in
which the thicker attribute subsumes the thinner one, the conceptual logic of the rule of law seems
to be different from a classical hierarchy.
18
The inclusion of rule by law in the definition of both diminished sub-types means, of course, that
we are considering the former attribute to be the minimalist definition of the rule of law.
32 R. Sarsfield
government by the people or their representative, elected on a broad franchise”.

However, “in some conceptions, it too may require more than that” (Ferejohn/
Pasquino 2003: 242). For instance, on some counts, a genuine democratic political
system requires that the citizenry be regularly consulted on fundamental legal
changes. So, the judicial branch should be prepared to enforce such new laws by
striking down the old laws. Therefore, more comprehensive conceptualizations of
democracy and rule of law can bring them into conflict with one another.
Additionally, since the supremacy of law (i.e. rule of law, not men) requires the
lawgiver to be bound by higher laws, such as those of the constitutions, and since
an effective system of checks and balances entails rulers being checked, laws cannot
be a product of democratic consent. As some scholars have suggested (e.g. Barros
2003; Ferejohn/Pasquino 2003), there would be tension between the rule of the
majority and the rule of law.
Also, some scholars have highlighted the notion of individual rights as an at-
tribute of the rule of law. This attribute has different labels: “individual rights”,
“rights of dignity and/or justice”, and/or “social welfare” (Tamanaha 2004), “hu-
man rights” (Belton 2005; Bingham 2010), and “substance of the rules”, “negative
rights”, and “positive rights” (Møller/Skaaning 2012, 2014).19 The inclusion of this
attribute seems to come from the classic concern of political theorists over the
limitations on liberty that could be imposed by very formal legality if the laws are
repressive (cf. Caldwell 2004). Consequently, some scholars have proposed aug-
menting the attribute of formal legality by adding the notion of individual rights to
the definition of the rule of law. It is worth noting that individual rights are typically
conceived among these scholars as pre-political and/or constitutionally sanctioned
rights, which means that such individual rights cannot be modified through the
democratic channel (Bingham 2010). Accordingly, it seems there is a trade-off
between individual rights and democracy. Considering that democratic consent is
defined – at least, in some accounts of this concept (e.g., Habermas 1996) – as the
ideal according to which the sources of the laws rest on the sovereignty of the
people,20 and that “the people is only sovereign insofar as it can alter (or even
overrule) rights” (Møller/Skaaning 2014: 23–24), a (paradoxical) conflict emerges
between the notion of democracy and the notion of individual rights.
19
All these labels have their conceptual advantages and disadvantages. One of the most compelling
ways to present this definitional prerequisite is proposed by Møller and Skaaning. Following Isaiah
Berlin’s classic distinction, these scholars divide the dimension of what they term as the substance
of the rules between two attributes, negative liberal rights on the one hand and positive social
rights on the other (Berlin 1969). Hence, according to these authors, this distinction “is expressly
hierarchical in that negative rights” are conceptually “prior to positive rights” (Møller/Skaaning
2014: 20). In other words, positive social rights incorporate negative political rights.
20
According to Møller/Skaaning (2012, 2014), this idea seems to have its historical origins and
background in the feudalist notion of the right of resistance.
2.4 Conclusions
This chapter has sought to explore different attributes that have been proposed as
forming part of the concept of the rule of law. Analysis of the meanings of the rule
of law in the literature made it possible to identify some of the areas of consensus
on and disagreement over the definitional prerequisites of that concept. Regarding
the presence of consensus, this work found that there is extensive agreement on
what should not be regarded as rule of law. Thus, it is widely claimed that rule by
men and special interest-based laws are incompatible with the rule of law. Both the
presence of the rule by men and the presence of special-interest laws imply the
absence of the rule of law for a good part of the scholars.
Also, several of the central controversies about the conceptualization of the rule
of law were identified. One of these controversies is analytical and it has to do with
which attributes should be considered as part of the rule of law. An important step
to define a concept is identifying a set of individually necessary and jointly suffi-
cient attributes (Adcock 2005; Sartori 1975, 1984). A list of potential attributes of
the rule of law was presented throughout this work. Another of these controversies
is methodological and it has to do with how many attributes should be considered as
part of the rule of law. This chapter found the existence of some conceptions that
emphasize thinner (or minimalist) definitions of the rule of law and other con-
ceptions that highlight thicker (or maximalist) meanings of the rule of law.
Conceptual analysis matters. Thick and thin conceptualizations “involve
trade-offs between generality and specificity, quantity and quality, and absolutes
and matters of degree” (Coppedge 2002: 1). One of the trade-offs between thick and
thin conceptualizations was spelled out long ago by Sartori (1970). The more
multifaceted a concept is, the smaller the number of objects to which it applies. For
instance, Weyland (2001) offers a good example of the concept of populism: if the
term is equated only with a style of discourse exalting “the people”, most Latin
American politicians and many beyond the region would qualify as populists. But
“the more one adds on additional characteristics – spell-binding oratory from bal-
conies, working-class support, neglect of party-building, redistributionist policies,
military background, authoritarian proclivities – the fewer qualifying populists there
are” (Coppedge 2002: 5). Consequently, on the one hand, thick conceptualizations
add meaning to a concept, but at the expense of wide applicability. Thin concep-
tualizations, on the other hand, have more general applicability, but tell us less
about the objects they describe (Weyland 2001; Coppedge 2002).
Many conceptualizations of the rule of law are thick. For instance, in a classic
study, Fuller (1981: 158; cf. Skaaning 2009: 5) proposes eight attributes that laws
must satisfy in a country characterized by the rule of law: generality, publicity,
prospectivity, clarity, non-contradictoriness, capability of compliance, stability, and
congruence between declared rules and the acts of administrators. More contem-
porarily, Lauth (2001: 33; cf. Skaaning 2009: 18) recognizes those eight attributes
and expands the list to fourteen attributes: general laws and not ad personam;
publicly promulgated laws; prohibition against retrospective laws; clear and
34 R. Sarsfield
comprehensive laws; no contradictory or inconsistent laws; no law should be

impossible to respect; relative stability in the lawmaking; proportionality in the law;
equality before the law; precedence of law; no one is above the law; independent
and effective juridical control; due process; liability to pay compensation for any
damage caused; and absence of arbitrary state action and promotion of legality.
Additionally, Belton (2005) distinguishes five attributes of a country charac-
terized by the rule of law: the state must be subordinated to law, the existence of the
equality before the law, formal legality, law and order, and human rights. At the
same time, Tamanaha (2004) identifies six different attributes of the rule of law.
First, rule by law; second, formal legality; third, democracy; fourth, individual
rights; fifth, rights of dignity and/or justice; and sixth, social welfare. Also, Møller/
Skaaning (2012, 2014) propose five attributes: formal legality, checks and balances,
sovereignty of the people, negative rights, and positive rights.
Finally, and considering the advantage and disadvantage of thin and thick
conceptualizations, it is important to note that thick conceptualizations “tend to be
multifaceted, multidimensional, and imbued with theory”, whereas thin conceptu-
alizations “tend to be simple, one-dimensional, and more theoretically adaptable”
(Coppedge 2002: 1). With regard to the addition of more attributes to thinner
definitions of the rule of law, Raz has made a decisive objection concerning any
kind of thicker definitions of that concept: the rule of law “is not to be confused
with democracy, justice, equality (before the law or otherwise), human rights of any
kind or respect for the person or for the dignity of the man” (Raz 1979: 211). Raz’s
assertion seems to anticipate Sartori’s ideas on the inherent danger of choosing too
thick a definition of a concept, as it could rob the conception of rule of law of its
distinct meaning, to the point that it becomes a term which means everything and
thus means nothing (Sartori 1970; cf. Møller/Skaaning 2014: 26). This argument
would involve excluding thicker definitions and their attributes (i.e. consent, neg-
ative rights, positive rights) from the semantic field of the rule of law and reducing
this concept to thinner definitions and their attributes (i.e. rule by law, formal
legality).
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449–460.
38 R. Sarsfield
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Chapter 3
Rule of Law and “Estado
Constitucional” Indicators. Does Law
Rule Effectively in Mexico?
Rafael Estrada Michel
Abstract The fulfillment of the law has always been the aspiration of every State
but this does not necessarily imply the emergence of a constitutional and demo-
cratic State, since the fulfillment of the letter of the law, in the Roman-
Germanic-Canonical tradition, does not automatically mean the existence of a legal
status that guarantees the enjoyment of fundamental rights. In this sense, what has
the Mexican State done to guarantee the enjoyment of these basic individual rights?
How can we measure the success or failure of the government in this matter? There
is no other answer but the establishment of the rule of law. Rule of law is a complex
topic that cannot be treated in isolation since it encompasses civil law, criminal law,
human rights, administrative law, corruption combat, and interior, public and na-
tional security issues. Therefore all indicators and formulas to achieve rule of law
should take these factors into account. In Mexico we lack indicators capable of
measuring compliance with the rule of law. If we add up the problems that the legal
substance faces when encountering the typical forms of Mexican legalism, the
problem of indicators intensifies, since we require much more substantive mea-
surements than those that only calibrate quantitative advances and regulate
Rafael Estrada Michel is a lawyer from the Escuela Libre de Derecho (ELD), Mexico, and
received his doctorate in the History of Law and Legal, Moral and Political Philosophy program
at the University of Salamanca (USAL) in Spain. He studied a Diploma in Legal Anthropology
at the National School of Anthropology and History (ENAH) and since 1997 has been teaching
public law and legal history at his alma mater and at Universidad Iberoamericana [Iberoamerican
University] (UIA), Universidad Panamericana [Panamerican University] (UP), Universidad
Nacional Autónoma de México [National Autonomous University of Mexico] (UNAM),
Universidad Autónoma Metropolitana [Metropolitan Autonomous University] (UAM), Instituto
Tecnológico Autónomo de México [Autonomous Technological Institute of Mexico] (ITAM),
Universidad La Salle (ULSA) [La Salle University], Instituto Tecnológico y de Estudios
Superiores de Monterrey [Monterrey Institute of Technology and Higher Education] (ITESM),
Universidad Latina de América [Latin University of America] (UNLA), Universidad Autónoma
de Nuevo León [Nuevo León Autonomous University] (UANL), and Universidad Pontificia de
México [Pontifical University of Mexico] (UPM). Between 2009 and 2016 he was a Counselor
of the National Commission of Human Rights, appointed by the Senate, and between 2012 and
2016 he served as Director General (dean) of the National Institute of Criminal Sciences
(INACIPE), appointed by the President of Mexico. In 2018 he was designated Visiting Research
Professor at the University of Pisa, Italy. A member of the National Researchers System, level 2.
Email: [email protected].

https://doi.org/10.1007/978-3-030-31314-2_3
40 R. Estrada Michel
formalities. We do not have enough indicators, and those that we do have do not
allow us to adequately measure the serious and substantive problems in Mexico. In
this hypothesis, if we develop and use more relevant indicators, we shall see, in a
few decades, a substantial increase in the rule of law. It is a matter of governability.
Keywords Constitutionalism ! Governability ! Human rights ! Indicators !

!
Legalism Rule of law
3.1 Introduction: From Traditional Legalism to the Rule

of Law in Mexico
Complying with the law has always been the aspiration of the two-hundred-year-old
Mexican State. As we will try to prove in this work, even of this had been possible
(which it was not) it would not have implied the emergence of a constitutional and
democratic State, since the fulfillment of the letter of the law, in
Roman-Germanic-Canonical tradition, does not automatically mean the existence of
a legal status that guarantees the enjoyment of fundamental rights.
We will start from the base that we lack, in Mexico, indicators capable of
measuring compliance with the rule of law. If we add up the problems that the legal
substance faces when encountering the typical forms of Mexican legalism, the
problem of indicators intensifies, since we require measurements which are much
more substantive than those that only focus on calibrating quantitative advances and
regulating formalities.
We do not have enough indicators and those that we have do not allow us to
adequately measure the serious and substantive problem we have. According to this
hypothesis, if we develop and use more relevant indicators we shall see, in a few
decades, a substantial increase in the rule of law. It is a matter of governability.
In his book Governability, Constitutional Aspects (2018), as in The Norm and
Normality (2018) and Cabinet Government and Coalition Governments (2018),
Diego Valadés speaks of our “constitutional vicissitudes”. This is not strange: let us
look at what has happened in the very important issue of the autonomy of the Public
Ministry and in the lack of regulation, at regulatory level, of the coalition gov-
ernments. Everything is contained in our Constitution, but it has been half-finished,
in the inkwell.
The book Governability begins by distinguishing between governability (which
is proper to constitutional states) and governance (typical of private companies), and
even governability from mere stability, which can exist in non-constitutional states.
That is why institutional designs (for instance, ministerial autonomy in criminal
procedures) are fundamental to ensure that violence does not impede the enjoyment
of public goods, in Rotberg’s sense: that violence does not lead to the failure of the
states.
3 Rule of Law and “Estado Constitucional” Indicators. … 41
Thucydides spoke of the crisis of stasis, of paralysis, of lack of constitutional

dynamism – a crisis derived from the commercialization of the polis in Athens. He,
like Aristotle, Plato, Xenophon and Polybius, knew that it was necessary to mod-
erate the principles of government through a mixed constitution that, without being
of anyone, was at the same time of all (Fioravanti 2001).
On the other side was (and is) anomie, which is contrary to the norm (and,
therefore, to society, because nomói is society): the interruption of the spontaneous
observance of the norm. All of this is about the loss of solidarity articulated around
the rationality of the norm.
Merton proved that if the channels of vertical mobility are closed, if the insti-
tutional system is the barrier for the excluded, the adaptive and logical reaction –
the Pareto optimum – is rebellion.
But all this is Sociology. Valadés affirms that the constitutional nature is based
on finding the appropriate institutional arrangement for each country. It is a topic of
tools in the hands of constitutionalists of the stature of Brewer-Carías in Venezuela
and García Belaúnde in Perú, as shown by the Ibero-American cases he analyzes in
one of the important essays in the book.
Dahrendorf argues that governability is the effective capacity of governments to
give direction to economy and society. Of course it is essential to safeguard this
faculty from the forces that Ferrajoli (2011) calls ‘wild’. The “Fourth
Transformation” heralded by President López Obrador intends to achieve that. And
this aim is noble, as long as no one forgets “Transformation 3.5”: the institutional
and agreed democratic transition that, from 1977 to date, opened the doors of
democratic sense in the wake of the Mexican Revolution.
The philosophy and goal today must be: better to consolidate than dismantle.
Better to create plural paths to equality than to eliminate fundamental freedoms. But
to achieve this we need indicators.
3.2 Human Rights Compliance Indicators
In terms of the “rule of law” or – more accurately with Civil Law tradition –
“Estado constitucional de Derecho”,1 an issue that crystallized in the great Mexican
constitutional reform of 2011 is that of “the unrestricted recognition of human
dignity as the only Reason of State in Mexico”.
1
We need to be careful, since “rule of law” does not stand exactly for “Estado de Derecho”, but for
Latin Ordo iuris: “And if we have talked about it (the difficulty) for the term lex, a no less difficult
speech is what could be done for the term law, which still today has meant misunderstanding,
indicating both an entire system of legal norms (in ancient times: the law, ius/law), and the specific
legislative act of the legislator (formerly: a law), and in fact a concept so central to Western legal
culture as the rule of law is translated – we use the French expression to better understand – as le
règne du droit, but also as le règne de la loi” (Cavina et al. 2016). In fact, ‘Law’ equals “Rule of
The active promotion of the aforementioned constitutional reform, as well as the

System for Attention to Victims of Crime, the Mechanism to Prevent and Punish
Trafficking in Persons, and the System for Attention to Unaccompanied Migrant
Children and Adolescents, has continued, with lots of attention given to the various
developments, in very broad areas, of the 2011 reform. In fact, the fight against
feminicide and the violence exercised over women are the axis of governmental
programs, and Mexico can presume an experience of decades.
We can be optimistic about reform because its beneficent development literally
jumps out: in all Mexican States we now have Ombudsman public institutions
(called “Comisiones de Derechos Humanos”) that have managed to form a func-
tional network for the defense of human rights in the republic, transcending the
inflexible molds that for many years tried to paralyze the work by appealing to a
misunderstood federalism.
The reform of 2011 is based on a philosophical platform for which many of us
fought for many years: that fundamental rights take precedence over the State and,
therefore, the public apparatus must not only recognize them unambiguously, but
proceed with granting guarantees of their effective validity (Estrada Michel 2014:
214–252).
But we cannot be satisfied, since the distance between norms and reality is still
enormous. In 2018, in the case of independent candidates running for Presidency
and Congress, for example, the electoral authority blocked in practice what it
claimed to recognize in terms of normative victories. In order to compete suc-
cessfully in a Mexican election, it is still necessary to belong to a political party or,
at least, to build a structure organized as an institutional public movement or
coalition.
So that this does not happen in even more delicate areas, such as eliminating
torture or upholding social rights (the right to health and an end to the worrying
reality of gynecological-obstetric violence are good examples), the reform of 2011
gave us invaluable instruments. We have, for instance, the above-mentioned cor-
rectly functioning network of public organizations for the defense and protection of
human rights, but also the constitutional autonomy that both the National
Commission and the local Commissions have reached, and the opening of legal
sources towards that modern Ius Commune that is the International Law of Human
Rights.
The autonomy of the Commissions includes safeguarding the sufficiency of their
material and budgetary conditions (which is still a distant goal in some Union
entities), and also, thanks to the decided support of administrative bodies, freely
conducting research to facilitate the implementation of recommendations that for
some authorities (the President, the Attorney General or the Governors) may be
uncomfortable.
Rights”, but its Latin equivalent, ‘Ley’ or “principio de legalidad”, is not always synonymous with
‘derecho’ or ‘derechos’. Zagrebelsky (2009: 24–27).
When a public authority refuses to accept the recommendations issued by the

Ombudsman’s office, the right seat to discuss the correctness of the recommenda-
tions is, at federal level, the Senate. A fine indicator may be constantly following up
the determinations that the Ombudsman organisms issue and complaining at the
Senate if a recommendation is contravened, in addition, of course, to the instances
of mediation between citizens and authorities that have been functioning discreetly
and effectively since 1992.
This is not only autonomy, but recognition of the effective and functional value
of constitutional autonomy. I see a huge area of opportunity in the autonomy –
already approved but not yet delivered – of the Public Ministry.2
Why? What can one thing have to do with the other? Much, in terms of due
process, and the proper work of law enforcement, but also with regard to the
effective compliance of the recommendations issued by the National Commission
for Human Rights (CNDH), the national Ombudsman.
Indeed, for some years now, the human rights organizations have had the pos-
itive initiative of including in their recommendations the presentation of the cor-
responding denunciations to determine the criminal responsibilities of the case.
However, it is no secret that as long as Attorney General’s and Prosecutor’s Offices
are subordinate to the Executives, these determinations become practically
impossible. With the autonomy of the Public Ministry, the opportunities for positive
synergy between Commissions and Prosecutor’s Offices will begin to fulfill a very
positive role in the scope of Government’s control. No official who has been
denounced as a human rights violator by the Ombudsman may remain in the
Administration, after the violation committed by him has been proved beyond any
reasonable doubt. Here is a good formula for obtaining the fair and effective rule of
law:
ERLHR = CD + DFD
ERLHR = CC
where:
ERLHR = Effective Rule of Law in terms of respect for Human Rights

CD = Criminal denunciations filed by the CNDH after a recommendation
DFD = Due foreseeing of the Denunciation before the Public Ministry
CC = Criminal Condemnation regarding violations of Human Rights.
The 2011 reform also brought us openness to fundamental rights from a
supranational source through the operation of the pro persona criterion. The
administration, and not only the judge or the legislator, is now required in each case
2
Above all, it is necessary to analyze the infamous Iguala case, related to the still unclear enforced
disappearance of 43 students from the Rural Normal School of Ayotzinapa on September 26, 2014
(see, for example, Garibian et al. 2017).
to look for the solution that more broadly protects the basic rights of the people,
according to our constitutional text, notwithstanding that the mentioned solution is
contained in an international source, such as a Treaty or Convention signed by the
Republic, or in a subnational one, for instance, indigenous consuetudinary Law.
The perspective that we will have to assume will be, unequivocally, a per-
spective of basic rights and, at the same time, it will contribute to the universal
validity of the principles of progressivity, interdependence and integrality of fun-
damental rights, to which the first article of our Constitution also refers.
“Universal validity” implies an authentic crusade for the definitive extension of
social rights to all layers of the population. It is time for us to take seriously the
eradication of hunger, universal access to health services and quality education, and
the effective promotion of the right to decent work, as had been claimed through the
example of domestic work that unfortunately remains in the scope of a profound
extension beyond mere formality. Due to the reform of 2011, doors of Human
Rights Commissions were opened to the labor claims.
Particularly in the field of social rights, in which our country was a century-old
constitutional pioneer, the fight against corruption has become necessary. We are
not going to achieve the social development goals that we set for ourselves at the
dawn of the new millennium, until we decisively operate budget control and
severely punish deviations in terms of budget allocations. Human Rights
Commissions should turn their attention to the expense budgets and to their con-
crete applications, and should issue the recommendations that they consider
appropriate. A general recommendation for the 2019 fiscal year in the area of
fundamental social rights would be a valuable guide for governments and legisla-
tures. It should contain indicators on best budget practices in order to ensure
universal cover for health and education public services.
Non-discrimination for any reason that relates to human dignity (fifth paragraph
of Article 1) has been considered the clause for opening and closing any consti-
tutional reasoning and, therefore, for the human rights system. No one can be
discriminated against for any of the reasons mentioned in the Constitution or in the
terms specified by the Commissions or the Supreme Court of Justice. No persons at
all: not because of their ethnic origin, nor because of their age, nor because of their
religious creed, nor because of their sexual orientation, nor because of their dis-
abilities, nor because of their gender. Neither can people be discriminated against
because of their procedural or penitentiary situation, so the rights of victims,
defendants and inmates in Social Reintegration Centers must be object of special
attention.
In such regard, the axis of public security can and must be approached from the
perspective of fundamental rights. The system must be inflexible with regard to the
prohibition of torture and degrading treatment, and also with regard to the right of
victims to the truth, to memory and to the reparation of the damage that has been
caused to them. Special attention should be paid to satisfactory implementation of
the initiative that the CNDH recommended to the Executive Commission for
Victims Assistance (CEAV): the access of victims to the Reparation Fund legally
established since 2013. But this alone is not enough: we must guarantee them and
all the inhabitants of the country, including those who transit through it, full pro-
tection of their right to security. And this can only be achieved through a deter-
mined fight against impunity:
RL = EFI
Here, RL is “Rule of Law” and EFI stands for “Effective Fight against
Impunity”.
Standing emphatically for a due process of law, in an accusatory and effective
way as the 2008 procedural reform ordered, also raises concern over incorrect
implementation. Mexican citizens have a fundamental right to the correct admin-
istration and delivery of justice, that drastically and immediately reduces the levels
of impunity and that imposes sanctions on both the corrupt officials and those who
violate, kill, traffic people, torture, disappear people, execute, misuse personal data,
and a long and painful et cetera.
This list includes, of course, not just drug trafficking, but organized crime in all
its forms, including that affecting the most vulnerable populations: elderly persons,
minors, migrants, people living on the streets, and inmates of Reintegration Centers.
The pernicious tendency to dismantle a police force that, at a federal level, took
many years to build, has obligated administrations to use the armed forces, many of
whose members have no perspective of human rights in main issues, as we have
seen in Tlatlaya and Tanhuato.
Regulation of Internal Security, as seen in polemics towards the recent expe-
dition of the “Ley de Seguridad Interior”, must undergo a more cautious analysis,
especially with regard to the suspension of guarantees through procedures other
than strictly constitutional ones. Above all, rights that Article 29 has declared
non-suspendable under any circumstances may be de facto violated through opaque
and informal procedures. This, and other important questions, remain sub iudice at
the Supreme Court, as per constant constitutional complaints, one of which was
delivered by the CNDH.
The principle of progressivity on human rights, included in the constitutional
text after the seminal reform of 2011, has suffered a worrying challenge. This
controversial Internal Security Law adds to the confusion between “national se-
curity” (one of whose ramifications is, by constitutional mandate, “internal secu-
rity”) and “public security”, amplifying (and pretending to justify) the areas of
intervention by the armed forces in tasks that are alien to them and establishing a
regime in which the guarantee of human rights is suspended, contrary to regulations
and delimited by the Constitution itself.
3.3 Administrative Justice Indicators
Let us move from Constitutional issues to the area of Administrative Law by asking
a few questions. First of all, are human rights being respected in the administration
of administrative justice?
It is necessary to distinguish two areas in the question. If we are talking about
respect for the fundamental elements of due process within administrative proce-
dures, it can be said that most administrative courts comply with them. This is the
case of the Federal Court of Administrative Justice (TFJA), a body that was
reformed to adapt to the requirements of the 2011 reform on human rights and the
anti-corruption reform of 2016. It must be said, moreover, that the judgments of the
administrative Courts are frequently reviewed by way of the amparo procedures
resolved by a Federal Court, and the same occurs with the resolutions of autono-
mous bodies such as the Instituto Nacional de Acceso a la Información (INAI), the
Instituto Federal de Telecomunicaciones (IFETEL) and the Federal Institute of
Competition (IFECOM). However, at local level the situation is very varied. Some
States lacked a local contentious-administrative court as recently as 2017. In others,
the contentious-administrative court that resolves complaints is completely subor-
dinate to the local administration. In those cases, the rights of the governed against
the administration cannot be asserted except through civil reparation, often a very
inefficient method.
The second area of the question centres on whether administrative justice is an
appropriate channel for the guarantee and protection of basic rights. In that regard, it
must be said that the 2011 reform was one of the great milestones of the democratic
transition. Although it has been questioned and even used for electoral purposes,
the truth is that it forces all the authorities in the country to promote, respect and
guarantee fundamental rights. The TFJA and other contentious-administrative
courts have been given the task of diffusely controlling the constitutionality of
administrative laws and discarding those that they consider contrary to the con-
stitutional and conventional order of human rights. The Federal Circuit Courts have
done the same with administrative matters and, of course, so has the Supreme
Court.
The challenge is to refrain from denaturalizing the concept of “human rights” by
distinguishing fundamental rights from those that are a matter of mere legality. To
assist with this, the Constitution offers keys in the very first article: basic rights are
universal, unavailable, unconditioned and fundamental for human coexistence in
terms of dignity and non-discrimination. They admit the application of the prin-
ciples of interdependence, indivisibility, universality and comprehensiveness.
Unless we want to sweeten the constitutional and democratic rule of law, we cannot
affirm that the right not to undergo torture or arbitrary detentions is just the same as
the possibility of consuming marijuana.
Second question: in administrative matters, are judgments handed down with a
gender perspective? This has been a constant concern of the Gender Equality
Commission created in the TFJA, which also has an Ethics Commission. Both
support the transversal and generalized application of the perspective to the reso-
lutions of the various chambers of the Court. Not only in administrative matters, but
also in other matters, such as the criminal or the properly constitutional, the
Supreme Court has ruled by the need to judge from a gender perspective.
A breakthrough occurred when a stipulation that concepts such as the “suspi-
cious category” (which prompts the judging body to go beyond the evidence pre-
sented by the parties and to question whether the context is too risky for gender
equality) should not result in violations to the presumption of innocence was finally
recognized at constitutional level after the reform of Article 20 on the criminal
prosecution system (2008). The principles and values of the new criminal justice
system, which is more democratic and transparent, are applicable to the rest of the
procedures in whatever is analog by their various forms of operation.
The gender perspective issue must, moreover, be approached in the context of
the prohibition of all types of negative discrimination (the above mentioned fifth
paragraph of the first constitutional article) and the operation of the pro dignitate
principle as the sole and definitive raison d’etre of the Mexican State.
Is there full access to administrative justice? Access to justice continues to be a
problem – and not only in the administrative area, but also in the civil and criminal
fields – because it shows the limitations that we face as a country due to marginality
and social exclusion. The Bar Associations have a lot to say about this. Perhaps it
would not hurt a reform to promote compulsory licensing accompanied by
instruments such as the shift of office, which requires the lawyer to take pro bono
cases. Italian, Brazilian and Spanish cases yield interesting lessons in that regard.
The TFJA has courts in practically all the states of the Republic, and has pio-
neered the so-called “online trial”, in which individuals can participate from
practically any computer terminal. It is still important that procedures and argu-
mentation become less complex, despite the technical difficulties that this entails. It
is, however, very difficult even for a lawyer to make a Mexican municipality
respond effectively to complaints about the damage suffered by vehicles due to the
poor condition of the streets. In addition to that, there are hundreds of other
examples, not to mention the factors required to promote administrative protection
or to litigate before specialized committees in financial, telecommunications or
economic competition matters.
From the moment of hiring an expensive lawyer who is well-known in judicial
and administrative circles, costs accumulate exponentially, and few people are
wealthy enough to afford their fees. Understandably, the offices of the public
defender prioritize family and criminal cases, so in this matter there is still much to
be done.
Are there exemplary sanctions in administrative matters for those who violate
human rights? Again, we must particularize. If the question refers to deterrent
exemplariness as a method of general prevention, we must remember that, at this
point, we are not talking about criminal matters. There have been, however, cases of
very high fines for companies and private organizations that violate fundamental
rights in terms of the protection of personal data. The Federal Court of
Administrative Justice, with the endorsement of the Supreme Court, has managed to
get the Mexican State to apologize for the poor performance of the Public
Prosecutor’s Office3 (that the public event was intended to be used for political
purposes, and that Mr Peña Nieto’s administration shot itself in the foot by insulting
the Mexican people is another story). There have been some cases of corrupt public
servants being dismissed, but in general we can say that impunity is far from being
eradicated, and therefore the incentives for the proper exercise of public service are
far from adequate. The sanctioning Administrative Law is still in the process of
formation.
How has the constitutional reform on human rights in administrative justice been
interpreted? As is clear from the TFJA precedents to which I have referred, it can
almost be said that the 2011 reform has been interpreted in the sense that the
administrative tribunals are obliged to control the conventionality and constitu-
tionality of the laws, but also their interpretation according to the pro persona
principle, seeking the solution that more fully guarantees the fundamental rights of
the defendant. This is another of the great advances that we owe to the reforms that
were introduced in the Constitution during the past years.
Finally, can it really be asserted that, in administrative matters, respect for
human rights and the rule of law is guaranteed? There is still some distance to go,
but I think that in general it can, especially compared to other procedural areas in
which the situation is much more worrying (I’m thinking, of course, of criminal
matters, but also local ones). Now that the issue of the fight against corruption
assigns a role of high relevance to administrative justice, we will see if the
administrative judges are up to the challenge of generating, for Mexicans, an
authentic fundamental right to enjoy a correct and efficient public administration.
3.4 Formulas for Indicators in Criminal Matters Against

Corruption
The challenges are huge – almost infinite – not just for the TFJA, but also for the
Auditoría Superior de la Federación (ASF, a Congress Agency in charge of
undertaking inspections and financial examinations of all government offices), the
Ministry of Public Function (SFP) and the Special Prosecutor against Corruption
(“Fiscal Anticorrupción”, an office partially autonomous from the Attorney
General’s, whose leader has not been appointed since the legal reform was issued
between 2014 and 2016). All of these offices, as well as a Citizen Committee
(“Comité de Participación Ciudadana”), the Consejo de la Judicatura Federal
(‘CJF’, Mexican Council on Administration of the Federal Judicial Branch), the
3
This is a reference to the case of Jacinta, Alberta and Teresa, and to the “Hasta que la dignidad se haga
costumbre” speech by Estela Hernández at the Attorney General’s office in February, 2017. See, for
instance, https://actualidad.rt.com/actualidad/231827-hoy-chingamos-al-estado-demoledor-discurso-
indigena-mexico.
TFJA and the INAI are part of the “Sistema Nacional Anticorrupción”, a com-
prehensive system presided over by the Citizenship Committee with a remit to
combat corruption. As this mission involves both administrative and criminal
prosecution channels, the following indicators are proposed:
Indicator: Strength of the foundation by the Superior Federal Audit (ASF) of the
files that sustain criminal accusations
• SCDASF = DA + FIE + CSO + CC + IP
• CJF = SCDASF + CGRI
Where:
• SCDASF stands for Conviction Sentences derived from Complaints made by

the ASF (Superior Federal Audit)
• DA are the Adequate Complaints regarding their motivation and typical criminal
grounds (due description of crimes)
• FIE means Formulation of Successful Imputation
• CSO equals Sufficient and Timely help granted to the Attorney General Office
• CC means respect for the Chain of Custody in terms of proving material
• IP is equal to Procedural Impulse
• CJF means the Final and Definitive Sentence Favorable to the interests of the
Government on Corruption combat
• CGRI means Correct Management of Appeals and Procedural Instances.
Indicator: Effectiveness of the challenges of the ASF against the resolutions of
the Public Prosecutor’s Office on not prosecuting probable corruption crimes
• AGDR = NRI − RNC
• AGDR = RP − (RI − M)
Where:
• AGDR = Appropriate Management of the Appeals Law

• NRI = Number of Resources and Challenges to Public Ministry resolutions
• RNC = Resolutions not exercising the criminal action Never Communicated to
the ASF
• RP = Number of successful Resources
• RI = Number of Wrongful Resources
• M = Motivation of the resolution of no exercise of the Criminal action.
Indicator: Formula of Responsibilities of the different actors in the procedures
• IR = ID + FMA
• RASF = FA − EMP
Where:
• IR = Responsible Instance
• ID = Denying Instance
• FMA = Lack of Motivation in its Arguments

• RASF = Responsibility of the Superior Audit of the Federation
• FA = Lack of Accreditation of a fact that the law indicates as a crime and
probability of commission
• EMP = Errors in the chain of custody and in the formulation of the imputation
from the Public Ministry.
Indicator: Impact of the Superior Inspection in judgments
• RASF = CJEC − ECCNI − EVMP
• DA = DHT + Dprob + PP
Where:
• RASF = Responsibility of the ASF

• CJEC = Sentence Judged Against ASF’s petition
• ECCNI = Errors in Chain of Custody Not Imputable to the ASF
• EVMP = Errors or Violations of the Federal Prosecutor (MP) from a complaint
properly formulated and followed
• DA = Adequate complaint duly followed by the ASF as a coadjuvant of the MP
• DHT = Contains the Data that establish that a Typified Event has been com-
mitted as a crime
• Dprob = Contains the Data that there is likelihood that the suspect committed or
participated in it
• PP = Test Principle (according to the standard of the new criminal justice
system), with evidence properly expressed and safeguarded.
Indicator: Contribution to the identification of corruption networks
• RASF = ACSD − EVPMP
Where:
• RASF is the responsibility of the ASF for judicial denial of the existence of
networks of corruption in the court
• ACSD = Argumentation, Custody of evidence and Monitoring of the Complaint
• EVPMP = Errors or Procedural Violations attributable to the MP.
3.5 Prospective
Rule of law is a complex topic that cannot isolate civil law from criminal law,
human rights from administrative law or corruption combat from interior, public
and national security issues. The name of the game should be “effective combat on
impunity” (Romero Gudiño 2007), and all indicators and formulas should take into
account the intricacies of such a complicated goal.
Let’s address the most important and difficult question: the war on organized
crime and its ramifications for pardon, amnesty and effective drug control (Begné
Guerra 2007).
At what point does defending citizens with the Army become an apology for
violence and, above all, a celebration of illegitimate violence?
There are two basic reasons why it is said that the armed forces must continue to
support the efforts of the people of Mexico to combat crime: one, of a pragmatic
nature, is the enormous predicament in which the recent administration (2012–
2018) has left us: there are not enough police elements with which to face the
seriousness of the problem. This is the harsh reality, which is obstinate in prevailing
over our illusions and desires.
But the transcendent motive derives from a deep and ancient conviction shared
by millions of Mexicans of goodwill: all, absolutely all public organisms are at the
inescapable service of human dignity. As we have stated, this is the principle that
must underpin all aspects of our legal reasoning and all of our public policies: the
Army has been made for man, and not man for the Army.
Beyond statistics, critical essays and measurement models, the truth is that at the
end of Felipe Calderón’s administration (2006–2012), the panorama of our country
began to change. The Chapultepec dialogues (2011) created an arena for the
effective and systematic validation of the rights of victims. A lot of desirable details
were missing, but the route was drawn.
However, this path was abandoned and, five years later, we see the results: a
terror so constant that, hampered by the indolence of the civil authority, it affects
every facet of security: citizen, national, interior, public… Human, in short. The
threat that we failed to manage and to eliminate unfortunately appears today to be
overflowing and merciless.
Given this, which extremes have the capacity to encapsulate a peace proposal
which is both effective and respectful of the principle that Law, and only Law,
rules? Armed forces, yes, but only if they operate within ethical boundaries and are
inexorably respectful of human dignity. Mexico needs armed forces that do not
replace the areas of law enforcement, administration and execution, but that con-
tribute to the search for what belongs to each person due to the shared human
condition.
In parallel, we need a strategy that establishes an efficient civil force which is
compact, supportive, sufficient, strategic, and capable of having a positive impact
on justice and peace. The State has to take prime responsibility not just for this, but
also for the effective prevention of crime, guaranteeing the right to the truth, and
commemorating victims with justice and dignity. We cannot continue to turn away
our gaze while conveniently forgetting about the compensation funds and the legal,
psychological and integral medical assistance that were promised between 2006 and
2012, only to be replaced by the quarrels of senior bureaucrats and the inefficient
use of resources during the government of president Peña. During his administra-
tion, the strategy was not the same as the one instrumented by presidents Zedillo,
Fox and Calderón. In 2012 all the statistics suggested that the Chapultepec route
was beginning to function. We had before us a great opportunity to achieve peace

via justice and dignity, as crime victims’ organizations used to say years ago.
Today, with the recent change of government, this precious opportunity is
renewed. We cannot allow it to be thrown overboard again.
There is a lot of talk about the enormous social concern over violence, insecurity
and injustice in our country, but few efforts seek to be systematic when analyzing
the various proposals of those who have reached a position of influence through
popular election. In fact, in terms of judicial review of constitutionality and con-
ventionality, we should ask ourselves whether or not it is desirable for a
Constitutional Court to replace or supplement the Supreme Court. President López
Obrador seems willing to do so and has referred in unkind terms to the current
justices of the highest federal court. Attacks on the Supreme Court and the Judicial
Branch are the order of the day, and numerous scandals related to the development
of the jurisdictional career follow one another. A radical change with regard to our
Constitutional Justice and the jurisdictional protection of fundamental rights does
not, however, seem foreseeable in the short term. If structural reform is envisaged,
the CJF – the body in charge of administering the federal Judicial Branch, placed
under severe scrutiny in recent months on account of denunciations of nepotism and
networks of undue influence (Borrego Estrada 2018) – will undoubtedly constitute
one of the topics for discussion during the next campaigns.
The autonomy and effectiveness of the Public Prosecutor’s Office are now
unplayable to such a degree that the national anti-corruption system outlined a
couple of years ago after the scandals perpetrated by the group in power, and seen
as a panacea by many leaders of opinion outside the field of criminal and admin-
istrative proceedings, could be reduced to the serious and technically viable pro-
posal of an accusatory ministry that is truly public and autonomous. The
autonomies of numerous prosecutors at local level and, of course, the autonomic
design of the federal Public Ministry have been pending. Proposals for this by
various advocates were coming and going even before the Organic Law of the new
Attorney General of the Republic, stuck in Congress, was issued. The social col-
lective “Fiscalía que sirva” has launched a call to ‘deepen’ the autonomic reform.
Mr López Obrador, on the other hand, has made known triple proposals for the
appointment of the Attorney General, the Electoral Prosecutor and the
Anti-Corruption Prosecutor in advance exercise of a faculty which, at present, the
Executive of the Union lacks. Meanwhile, the ‘forced’ landing of the 2008 criminal
reform in an adversarial and accusatory sense is still pending and increasingly
provokes a greater degree of dissatisfaction among the population.
A genuinely structural reform, that of the professionalization of public justice
services, must be built on the understanding that there should no longer be access to
government positions except on accredited merit, either through direct appoint-
ments that fall on irreproachable people who are not related to improper interests, or
through opposition examinations in which the interest, expertise and ability to share
values held by those who aspire to make the public function their career path are
evaluated.
In this last respect, the scope of the functions related to justice enjoys undeniable
areas of opportunity and characteristics in its favor, since it deals with very specific
aspects of the life of human communities with a margin of surprise lower than that
which corresponds to legislative or executive activities. In other words, the judi-
ciary is a structure that has performed more consistently and more continuously
similar activities (and, in most cases, predictable and systematizable) throughout its
historical development. It is no coincidence that the Mexican Jurisprudence, to cite
a very plastic example, is ordered by ‘epochs’ generally much more extensive than
those that correspond to the exercise of a Legislature and, of course, to a sexennial
administration. Needless to say, in arenas of high constitutional development, the
jurisdictional authorities are strangers to political ideological struggles, at least
those that have a marked electoral bias.
In this regard, it is highly desirable that all those who hold a position in the
Judiciary, starting with the administrative officers, know the mystique of the work,
endeavor to share the values of justice and equity that should permeate judiciary
tasks, and, in addition to displaying competence in generic administrative duties,
express enthusiastic dedication to the tasks that specifically relate to the adminis-
tration of justice.
Thus, people who enter the judiciary as administrative officers should be chosen
with complete impartiality from a list of ‘authorized’ candidates, that is, people
declared fit to enter the Judicial School, who have received appropriate training and
can present proof of competency that enables them to ascend (and, in time, be
declared permanent) to the administrative management tasks of a complex body
such as the CJF. This would weaken many of the perverse incentives that currently
exist for the configuration of nepotism networks or for updating potential conflicts
of interest. We are talking about the creation of foundations that construct a clear
framework for the development of a civil service administrative career within the
Judicial Power. This would strengthen the mechanisms of transparency and ac-
countability, for example in matters of appointments and ascriptions.
I mean, if district judges and circuit magistrates are constrained to select only
‘authorized’ officers who have passed stringent exams after a period of strict and
academically irreproachable training, the risk of appointing unsuitable personnel is
minimized. The current scheme of free selection, on the other hand, has provoked
the infamous triangular movements, the exchanges of favors, the simulations and
the more than symptomatic confluences of kinship between the members, admin-
istrative or not, of the Judicial branch.
With a school of knowledge for the first-level judicial management, taking
advantage of the advances made by the Federal Judicial Institute since the seminal
reform of the jurisdictional apparatus of 1995, as well as the experiences of the
main educational institutions of our cultural environment (France, Spain, Canada,
Colombia, Italy, Brazil), the Federal Judicial branch would be able to serve as an
example of best practice not only to the other two branches of the Union, but also to
the local judicial powers and to constitutionally autonomous organisms like the
Prosecutor’s Offices. This paradigm demonstrates the vital role that the creation of
an authentic professional service plays in the consolidation of a democratic
transition and in a system of constitutionally guaranteed freedoms. It also under-

lines the extraordinary importance of irreproachable administrative activity in
modern and renewed jurisdictional services.
A strict regime of formation, appointment, ascription and permanence for the
administrative officials of the Judicial Power is something that our country deserves
and that the citizenship demands. It will translate, no doubt, into a very appreciable
increase in the quality of the administration services of justice in the Republic. It is
not possible to have excellent justice without institutions that comply with high
standards of ethical, technical and administrative quality.
• EJ = TBD + FDPL – PCIRNC
Where:
• EJ = Excellent Justice.
• TBD = Well-equipped technicians.
• FDPL = Fairness in Due Process of Law.
• PCIRNC = Potential conflict of interest derived from nepotism or clientele
networks.
3.6 Conclusion
Although in the normative and organizational order the rule of law in Mexico seems
well grounded, above all in terms of the areas analyzed (Human Rights,
Administrative Justice, Fight against Corruption and the structure of the Judiciary),
much remains to be done in order to translate public policies into effective progress
in what, for example, Diego Valadés has discussed under the heading
‘Governability’ or in what corresponds to the rule of law in the analytical sense of
the World Justice Project, which continues to place Mexico among the last places in
all the categories and scales that it uses. A first step to reverse the current situation
would be the serious, effective and impartial application of indicators such as those
proposed in this study, in which the Republic is almost completely lacking.
References
Begné Guerra, Cristina (2007). Neoliberalismo y política criminal en México (Mexico: Miguel
Ángel Porrúa).
Borrego Estrada, Felipe (2018). Informe sobre Nepotismo y Redes clientelares en el Consejo de la
Judicatura Federal (Mexico: UNAM, in press).
Cavina, Mario; Ferrante, Riccardo; Tavilla, Elio (2016). “Dalla crítica umanista all paradigma
della Modernità”, in: Tempi del Diritto (Torino: Giapichelli Editore).
Estrada Michel, Rafael (2014). “La historia del Derecho en México. Un estado de la cuestión en la
formación de los operadores jurídicos”, in: Storia e Diritto. Esperienze a confronto. Atti
dellíncontro internazionale di studi in occasione dei 40 anni dei Quaderni Fiorentini a cura di
Sordi, Bernardo (Milano: Giuffré editore).
Ferrajoli, Luigi (2011). Los poderes salvajes: La crisis del Estado constitucional (Madrid: Trotta).
Fioravanti, Maurizio (2001). Constitución: de la antigüedad a nuestros días (Madrid: Trotta).
Garibian, Sévane; Anstett, Élisabeth; Dreyfus, Jean Marc (Eds.) (2017). Restos humanos e
identificación: Violencia de masa, genocidio y el “giro forense” (Buenos Aires: Miño y Dávila
editores).
Romero Gudiño, Alejandro (2007). Innovación judicial: Profesionalización, rendición de cuentas
y ética (México: Porrúa/Universidad Panamericana).
Valadés, Diego (2018). Gobernabilidad. Aspectos constitucionales (México: UNAM/Porrúa).
Valadés, Diego (2018). El gobierno de gabinete y los gobiernos de coalición (México:
IIJ-UNAM).
Valadés, Diego (2018). La norma y la normalidad (México: Porrúa).
Zagrebelsky, Gustavo (2009). El derecho dúctil: Ley, derechos, justicia (Madrid: Trotta).
Chapter 4
Measuring the Rule of Law in Mexico
Camilo Gutiérrez, Joel Martinez, Alejandro Ponce and Leslie Solís
Every line is the perfect length if you don’t measure it.

—Marty Rubin
Abstract This chapter provides an introduction to the framework used by the

World Justice Project (WJP) to measure the rule of law in more than a hundred
countries around the world. This framework was adapted to produce a subnational
index within Mexico. The WJP measures the rule of law using composite indicators
based on outcomes that reflect the experiences and perceptions of the general public
and in-country experts. Eight factors are considered in the WJP index: (i) con-
straints on government powers, (ii) absence of corruption, (iii) open government,
(iv) fundamental rights, (v) order and security, (vi) regulatory enforcement,
Camilo Gutiérrez worked at the World Justice Project from 2016 to early 2019, where he
managed data analysis for the Rule of Law Index. Prior to joining the WJP, he worked as a
professor and research assistant at Universidad de los Andes, in Bogotá, Colombia. He holds a
B.A. and Masters in Economics from Universidad de los Andes, [email protected].
Joel Martinez is the Director of Engagement at the World Justice Project. Prior to joining the
WJP, Mr. Martinez worked with the Massachusetts Commission Against Discrimination in its
enforcement of anti-discrimination laws, focusing on outreach to low income communities.
Mr. Martinez earned his B.A. in Economics and Political Science from Middlebury College,
[email protected].
Dr. Alejandro Ponce is the Chief Research Officer of the World Justice Project. He joined the
WJP as Senior Economist and is one of the original designers and a lead author of the WJP Rule
of Law Index. Prior to joining the World Justice Project, Dr. Ponce worked as a researcher at
Yale University and as an economist at the World Bank and the Mexican Banking and Securities
Commission. Dr. Ponce has conducted research in the areas of behavioral economics, financial
inclusion, justice indicators, and the rule of law, and has been published in collected volumes as
well as top academic journals such as the American Economic Review and the Journal of Law
and Economics. He holds a B.A. in Economics from ITAM in Mexico, and an M.A. and Ph.D.
in Economics from Stanford University, [email protected].
Leslie Solís joined the World Justice Project in the fall of 2016, after spending five years as a
criminal justice analyst at the prominent think tank México Evalúa in Mexico City. She was also
an editorial advisor for the Justice Section at Diario Reforma, one of Mexico’s largest daily
newspapers, for two consecutive years. Leslie holds a B.A. in Political Science and International
Relations from CIDE, [email protected].
The authors extend their gratitude to Jeremy Levine-Drizin, who provided feedback and edits to
this text.

https://doi.org/10.1007/978-3-030-31314-2_4
58 C. Gutiérrez et al.
(vii) civil justice, and (viii) criminal justice. This chapter explains the process
through which the WJP gathers and analyzes the data necessary to measure the rule
of law, and concludes with lessons learned from this exercise.
! !
Keywords Composite indicator Index Rule of law Factors Justice ! ! !
! ! ! !
Accountability Open government Security Corruption Fundamental rights !
! !
Surveys Outcomes Regulation
4.1 Introduction
Across different languages and cultures there has been an agreement that the rule of
law is vital for fair and functioning societies, ranging from the Code of Hammurabi
to Aristotle, the Magna Carta, and the Universal Declaration of Human Rights.
The international community recognizes the rule of law as a key element for
establishing peace, justice, human rights, and development (UN 2012). It affects
essential aspects of everyday life, including feeling safe walking in your neigh-
borhood; being able to protest, file petitions, profess your religion, and solve your
grievances through the justice system; and enforcing contracts and property rights.
Research has shown that effective rule of law helps to fight corruption, combat
poverty, protect people from injustices large and small, and is correlated with
economic growth and prosperity. In brief, the rule of law is considered to be “the
foundation for communities of equity, opportunity, and peace” (WJP 2018).
Maintaining and improving the rule of law is, therefore, essential to societies
seeking to build such communities of equity, opportunity, and peace. And, given
that the rule of law is so crucial, it is important that it be measured. As the adage
goes, you can’t improve what you don’t measure.
Yet, despite general agreement about its importance, there is currently no single,
agreed-upon definition of the rule of law, let alone a consensus on how to measure it.
The World Justice Project (WJP) has worked to fill this gap by providing a
comprehensive set of indicators to measure the rule of law, and thereby offering a
diagnostic tool that is useful for evidence-based policy-making. To this end, the
WJP designed an Index to measure the rule of law in practice, based on the
experiences and perceptions of the general public and in-country experts.1 The WJP
Rule of law Index® provides scores and rankings based on eight factors: (i) con-
straints on government powers, (ii) absence of corruption, (iii) open government,
(iv) fundamental rights, (v) order and security, (vi) regulatory enforcement,
1
The World Justice Project (WJP) is an independent, multidisciplinary organization working to
advance the rule of law worldwide.
4 Measuring the Rule of Law in Mexico 59
(vii) civil justice, and (viii) criminal justice, which are later disaggregated into more
than forty sub-factors. These factors reflect outcomes of the rule of law.
During the first eight years of the Index’s development, the WJP sought to
measure the rule of law on a global scale.2 In 2018, the WJP produced its first
subnational index to measure the rule of law within a single country: Mexico. The
Mexico States Rule of Law Index is the most comprehensive measurement of the
rule of law ever conducted in Mexico, allowing for highly detailed comparisons
among all thirty-two Mexican states.
This chapter discusses the process of measuring the rule of law through the lens
of WJP’s experience of developing these two indices. The chapter begins by
exploring two key considerations in measuring the rule of law. First, it considers the
process and challenges of developing a definition for the rule of law and examines
the choices made by WJP. Second, it discusses the process and challenges of
measuring the rule of law and, as with the definition, considers WJP’s approach.
Section Four discusses the process of adapting the WJP Global Index to the
Mexican context for the production of the Mexico States Rule of Law Index.
Finally, the fifth section provides preliminary results from the Mexico States Rule
of Law Index, and the final section presents the authors’ conclusions.
4.2 The Rule of Law
In developing any measurement of the rule of law, whether global or sub-national,

the process begins by determining the conceptual framework for measurement. The
framework must be determined in advance in order to properly inform subsequent
choices regarding the measurement methodology. Throughout this process, there
are two main challenges to defining the rule of law for quantitative measurement:
defining the conceptual ‘thickness’ of the rule of law to be measured, and designing
a definition that adequately captures the multidimensional nature of the rule of law.
Regarding the first challenge, there is a debate between two different conceptions
of the rule of law (Carothers 2010). The first conception, which is the least
demanding and hence called the minimalist or ‘thin’ approach, focuses only on
formal and procedural rules, which emphasizes whether rules exist, and scrutinizes
whether those rules are followed by everyone, including the people in power. The
second approach, called ‘thick’ because it is more comprehensive, focuses on
substantive characteristics such as self-governance, as well as respect for funda-
mental rights and freedoms.
As for the second definitional challenge, the rule of law is a multidimensional
concept that covers many topics and aspects of everyday life. As Rachel Kleinfeld
explains, “the rule of law creates a relationship between a state and its citizens in
2
The WJP Rule of law Index 2017–2018 covered 113 countries and jurisdictions, which included
over 90% of the world population. Next year, the Index will include 125 countries.
which power, violence, and impunity are constrained” (2013: 2). In this way,
adherence to the rule of law means the government is subject to law, citizens are
equal before the law, human rights are guaranteed, citizens have access to efficient
dispute resolutions, and there is a reasonable guarantee of order and security. As a
multidimensional concept, the rule of law cannot be measured by focusing on one
single element.
Measurements of the rule of law must wrestle with these two challenges in the
construction of the conceptual framework. Determining the ‘thickness’ of the
definition is ultimately a value judgement of the researcher, while the level of
multidimensionality is, in many cases, more of a practical concern, rooted in the
level of granularity that the measurement requires.
The global WJP Rule of Law Index is an effort to balance the ‘thin’ and ‘thick’
conceptions of the rule of law to enable the Index to be applied in diverse social and
political systems (WJP 2018: 10). For example, it considers whether rules exist and
are enforced (e.g. in regulatory enforcement), but it also considers the protection of
essential fundamental rights.
To address the second challenge, the WJP Rule of Law Index relies on a mul-
tidimensional framework that encompasses all the elements of the rule of law and
categorizes them into eight comprehensive factors, which are further divided into
more than forty sub-factors that analyze particular aspects of everyday life. Using
eight factors to conceptualize the rule of law is helpful because it translates an
abstract concept into a practical measurement that is easy to dimension and
understand.3
In crafting its definition, the WJP Rule of Law Index draws on two main
principles on the relationship between the State and the citizens: the first principle
measures whether the law imposes limits on the exercise of power by the State and
its agents, as well as individual and private entities, while the second principle
measures whether the State limits the actions of members of society and fulfills its
basic duties towards its population.
The first principle is encompassed in the first four factors in the Index. In this
sense, Factor 1 measures the extent to which those who govern are bound by law. It
comprises the means by which the powers of the government and its officials and
agents are limited and held accountable under the law, including non-governmental
checks on the government’s power, arising from a free and independent press, or an
active civil society. Factor 2 measures the absence of corruption in government,
with respect to government officials in the executive branch, the judiciary, the
police, and the legislature. In this factor, corruption is understood as “the abuse of
entrusted power for private gain” (Transparency International 2018). Factor 3
measures the openness of government defined by the extent to which a government
shares information, empowers people with tools to hold the government account-
able, and fosters citizen participation in public policy deliberations. Factor 4
3
Regarding the importance of developing a clear and practical definition of the rule of law, please
consult Chemerinsky (2007: 5).
measures respect for fundamental rights, because it recognizes that a system of

positive law that fails to respect core human rights established under international
law is at best ‘rule by law’, and does not deserve to be called a rule of law system.4
The second principle is measured by the last four factors. Factor 5 assesses how
well a society assures the security of people and property. Factor 6 measures the
extent to which legal and administrative regulations are fairly and effectively
implemented and enforced. Factor 7 measures whether ordinary people can resolve
their grievances peacefully and effectively through the civil justice system. Finally,
Factor 8 evaluates the effectiveness of the criminal justice system.
The WJP uses the eight factors described above because the rule of law is a
multidimensional concept that cannot be fully captured by focusing on one single
element. On the contrary, it requires a balanced basket of indicators – defined as
measures to monitor progress towards a certain objective – which may lead to a
more robust, reliable and comprehensive understanding of this concept. These eight
factors are further disaggregated into more than forty sub-factors, and each one is
measured with multiple variables that provide a comprehensive set of indicators for
each topic.
4.3 Measuring the Rule of Law
Once the conceptual framework has been established, measurement methodologies

may be determined. In addition to the definitional challenges noted above, any
quantification of the rule of law must also address several measurement challenges.
One challenge is determining the analytical focus of the measurement. The rule of
law can be measured from a variety of analytical perspectives. Inputs, activities,
outputs, outcomes, and long-term impacts can all be targeted for measurement,
depending on the purpose of the measurement exercise. Therefore, any measure-
ment of the rule of law must first determine its analytical focus of measurement.
To use the WJP as an example, in the course of developing the WJP Rule of Law
Index, the WJP developed an approach that focuses on policy outcomes,5 in part
because the WJP recognizes that comparing the institutional means (including the
legal and regulatory framework) is not an ideal way of measuring the rule of law,
4
The most salient examples of ‘rule by law’ might be Nazi Germany or apartheid South Africa,
“which were run by law but used that law as an instrument to deprive some citizens of peace and
safety…” (Kleinfeld 2006: 45).
5
Indicators can focus on inputs, activities, outputs, outcomes, or long-term impacts – depending on
the goal. Input indicators include the money invested or spent to achieve a goal, and the number of
people working in an institution – i.e. police officers per 100,000 inhabitants. Activities refer to
actions that are designed to meet an objective, such as the amount of training provided to police
officers. Outputs are the products that result from certain activities, such as generating an analytical
or legislative document. Outcomes refer to short and medium-term objectives, such as increased
perception of security, or a reduction in the crime rate. Impacts are long-term goals like improving
transparency and accountability in a country.
given that, numerous times, a legal framework does not get translated into actual
results.6 Moreover, the links between the particular institutional means and the
outcomes of the rule of law are complex and may vary depending on context.
As a result, the Index “explores the ingredients of the rule of law in terms of
specific goals or outcomes that Rule of Law societies seek to achieve and that
policy-makers might want to influence” (Botero/Ponce 2011: 2). Furthermore, it
recognizes that societies have different rules and institutions to establish a strong
adherence to the rule of law, and therefore acknowledges that strong rule of law can
be pursued by different means. In this way, the WJP designed the Rule of Law
Index to be applied in countries with vastly different social, cultural, economic, and
political systems, so that it is culturally competent and does not force a particular
viewpoint or agenda.
A second measurement challenge is determining the sources of data.
Measurement may be based on various types of data, such as administrative data,
expert opinion, and household survey data, to name just a few. Moreover, con-
sideration must be given in whether to use original or pre-existing data.
The WJP is not the only institution that seeks to measure the rule of law, but its
approach is unique. For example, the Worldwide Governance Indicators (WGI) of
the World Bank seek to capture “perceptions of the extent to which agents have
confidence in and abide by the rules of society, and in particular the quality of
contract enforcement, property rights, the police, and the courts, as well as the
likelihood of crime and violence” (World Bank 2018). The WGI relies on existing
data sources, ranging from household surveys to expert information, and assess-
ments from other organizations. A similar approach is taken by the Heritage
Foundation, which focuses on measuring property rights and freedom from cor-
ruption to assess the rule of law as part of their Index of Economic Freedom. The
Heritage Foundation also relies on expert assessments and secondary sources to
assign country scores.
Freedom House, on the other hand, measures the rule of law by concentrating on
questions about an independent judiciary, whether the police force is under direct
civilian control, whether there is protection from political terror, unjustified
imprisonment, exile, torture, and war, and whether laws, policies, and practices
guarantee the equal treatment of various segments of the population. This
methodology relies on information provided by analysts and expert advisers. It
must be pointed out that this conception of the rule of law is only a partial com-
ponent of Freedom House’s measurement of Freedom in the World, instead of
being a product by itself.
The WJP Rule of Law Index offers a different approach to measurement. WJP
takes a user-based approach, as it draws data from both household and expert
surveys (General Population Poll and Qualified Respondents’ Questionnaires,
respectively). This choice was driven by the intuition that strong rule of law is a
system that allows citizens to thrive and enjoy the basic goods and rights necessary
6
Please see the case of the “Paper Leviathan” in Acemoğlu/Robinson (2016).
to lead a prosperous life, and that an approach that does not take into account
people’s experiences, but focuses only on expert opinion, can lose sight of that.
Additionally, the WJP Rule of Law Index relies principally on primary data,
obtained from the household and expert surveys. Building on its user-based ap-
proach, the WJP uses household surveys to focus on the perceptions and experi-
ences of ordinary citizens, while expert surveys target academics, lawyers, and
practitioners, and generate in-depth information on technical or specialized issues
that may be unfamiliar to members of the general public who are not the typical
users of these services (UNDP 2014: 52). To do this, the WJP developed a set of
five questionnaires based on the Index’s conceptual framework. One questionnaire
targets the general population, while the other four target expert respondents and
practitioners in the areas of public health, labor law, civil justice, and criminal
justice. The questionnaires are translated into several languages and adapted to
reflect commonly used terms and expressions in each country.
For the household surveys, or General Population Poll (GPP), the WJP has
followed the strategy of hiring leading polling companies to conduct fieldwork
among a representative sample of 1,000 people in the three largest cities of each
country (before conducting full fieldwork, the polling companies also conduct a
pilot exercise to test the questions and sampling methodology). These surveys are
then applied face-to-face, via telephone, or online, depending on the characteristics
of each country. For administrative reasons, the GPP is conducted every other year
for each country included in the Index.
For the expert surveys, or Qualified Respondent’s Questionnaires (QRQs), the
team identifies, on average, more than 300 potential local experts per country to
contribute to the surveys, and invites participants to fill out the survey instrument
remotely via email. In 2017, an average of twenty-six experts completed the survey
effectively in each country.
Both the household and expert surveys offer original information. The WJP
designed the questionnaires in direct consultation with experts. In addition, the WJP
complements the Rule of Law Index with third-party sources that measure elements
of the rule of law that are not adequately captured through surveys, such as
homicide rates or combat-related casualties.
Once data collection is finalized, the Index team maps the data onto more than
forty sub-factors that compose the eight factors. All the indicators included by the
WJP are normalized to guarantee their comparability, and scores are aggregated
using simple averages. Data is cross-checked or compared against dozens of
third-party sources, including quantitative data and qualitative assessments, to
prevent biases and errors. Finally, the Index is tested for robustness and sensitivity
via a statistical audit performed by the Econometrics and Applied Statistics Unit of
the European Commission’s Joint Research Centre, as well as for standard errors
obtained from 100 bootstrap samples that are used to track changes over time.
As with all methodologies, WJP’s approach possesses certain limitations. Some
of the limitations that arise in the WJP Rule of Law Index are due to administrative
constraints. For example, the Index only considers the three largest cities in each
country. This has several disadvantages. Focusing primarily on urban populations
may neglect the experiences of people living in rural areas, which is where the most
disadvantaged people tend to be located. This limited sample frame can also affect
results in important areas, such as fundamental rights, corruption, and the perfor-
mance of the civil and criminal justice system, among others. Additionally, since
the entire country is the fundamental unit of analysis, the WJP Index is also limited
in the sense that it does not reflect differences within a particular country or
jurisdiction. This can conceal particular regions with higher or lower performances.
Other limitations in the Index data arise from having a limited number of experts
who answer the QRQ survey in some countries. This implies that countries with
few completed QRQ surveys may have less precise estimates. It also means that
having a limited number of experts, in combination with the GPP, being carried out
in each country every other year, can lead to some variables not fully detecting
small changes in a country’s situation from one year to another.
4.4 Adjusting WJP’s Definition and Measurement

Approach for the Mexico States Rule of Law Index
Several of the limitations above are inherent in a globally focused index.

Subnational indices offer an opportunity for WJP to adjust its definition and
measurement approach for increased local precision. The Mexico States Rule of
Law Index 2018 (published in October 2018) is the first subnational index to
measure the rule of law in a comprehensive way. It follows the same objective as
the Global Index, as it seeks to be a diagnostic tool to identify the strengths and
weaknesses in each State, and to encourage policies to strengthen the rule of law
across the country. In building the Mexico States Rule of Law Index, the WJP
sought to apply the lessons it learned from constructing the Global Rule of Law
Index while simultaneously adjusting the approach to improve the strength of its
localized measurement.
In adjusting its approach for the Mexican States Index, the WJP began by
contextualizing its definition. The Mexico States Rule of Law Index is built using
the same eight factors that the WJP has used for the global index. The sub-factors,
however, have been adapted to reflect the national context and allow comparisons at
a state level. This can be seen in the following table (changes are marked in italics).
These adjustments to the definition are designed to improve the local validity of the
conceptual framework while simultaneously maintaining the universal nature of
WJP’s rule of law definition (Table 4.1).
In terms of measurement methodology, the Mexico States Rule of Law Index is
built using the core methodology of the Global Index, but with some adaptations
designed to improve upon several of the limitations of the Global Index. First, the
Mexican Index considers the whole country, both urban and rural areas, rather than
the urban-only sample of the Global Index. Likewise, it allows for comparison
Table 4.1 Factors and sub-factors that compose the WJP rule of law index
Global rule of law index Mexico states rule of law index
Factor 1: constraints on government Factor 1: constraints on government
powers powers
1.1 Government powers are effectively 1.1 State government powers are effectively
limited by the legislature limited by the legislature
limited by the judiciary limited by the judiciary
limited by independent auditing and limited by independent auditing and review
reviewing 1.4 State government officials are sanctioned
1.4 Government officials are sanctioned for for misconduct
misconduct 1.5 State government powers are subject to
1.5 Government powers are subject to non-governmental checks from civil society,
non-governmental checks political parties, and the press
1.6 Transition of power is subject to the law 1.6 Elections are free, clean and transparent
Factor 2: absence of corruption Factor 2: absence of corruption
2.1. Government officials in the executive 2.1. Government officials in the state
branch do not use public office for private executive branch do not commit acts of
gain corruption
2.2. Government officials in the judicial 2.2. Government officials in the judicial
branch do not use public office for private branch do not use public office for private
gain gain
2.3. Government officials in the police and 2.3. Government officials in the security and
military do not use public office for private law enforcement systems do not use public
gain. office for private gain
2.4. Government officials in the legislative 2.4. Government officials in the legislative
branch do not use public office for private branch do not use public office for private
gain gain
Factor 3: open government Factor 3: open government
3.1. Publicized laws and government data 3.1. Civic participation in decision-making
3.2. Right to information 3.2. The right to public information is
3.3. Civic participation effectively guaranteed
3.4. Complaint mechanisms
Factor 4: fundamental rights Factor 4: fundamental rights
4.1. Equal treatment and absence of 4.1. Equal treatment and absence of
discrimination discrimination
4.2. The right to life and security of the 4.2. The right to life and security of the
person is effectively guaranteed person is effectively guaranteed
4.3. Due process of the law and rights of the 4.3. Due process of the law and rights of the
accused accused are effectively guaranteed
4.4. Freedom of opinion and expression is 4.4. Freedom of opinion and expression is
effectively guaranteed effectively guaranteed
4.5. Freedom of belief and religion is 4.5. Freedom of belief and religion is
4.6. Freedom from arbitrary interference with 4.6. The right to privacy is effectively
privacy is effectively guaranteed guaranteed
4.7. Freedom of assembly and association is 4.7. Freedom of assembly and association is
4.8. Fundamental labor rights are effectively 4.8. Fundamental labor rights are effectively
guaranteed guaranteed
(continued)
Table 4.1 (continued)

Global rule of law index Mexico states rule of law index
Factor 5: order and security Factor 5: order and security
5.1. Crime is effectively controlled 5.1. Absence of homicides
5.2. Civil conflict is effectively limited 5.2. Absence of crime
5.3. People do not resort to violence to 5.3. Perception of safety
redress personal grievances
Factor 6: regulatory enforcement Factor 6: regulatory enforcement
6.1. Government regulations are effectively 6.1. Government regulations are effectively
enforced enforced
6.2. Government regulations are applied and 6.2. Government regulations are applied and
enforced without improper influence enforced without corruption.
6.3. Administrative proceedings are 6.3. Administrative proceedings are
conducted without unreasonable delay conducted effectively and efficiently
6.4. Due process is respected in 6.4. Due process is respected in
administrative proceedings administrative proceedings
6.5. The government does not expropriate 6.5. The state government does not
without lawful process and adequate expropriate without lawful process and
compensation adequate compensation
Factor 7: civil justice Factor 7: civil justice
7.1. People can access and afford civil justice 7.1. People know their rights and trust civil
7.2. Civil justice is free of discrimination justice institutions
7.3. Civil justice is free of corruption 7.2. People have access to information and
7.4. Civil justice is free of improper affordable quality legal counsel when facing
government influence legal problems or disputes
7.5. Civil justice is not subject to 7.3 People can resolve their legal problems
unreasonable delay easily and without high costs or bureaucratic
7.6. Civil justice is effectively enforced procedures
7.7. Alternative dispute resolution 7.4 The civil justice system is impartial,
mechanisms are accessible, impartial, and independent and free from corruption
effective 7.5 The civil justice system guarantees a
quality process
7.6 The civil justice system is not subject to
unreasonable delay
7.7 Resolutions of civil and administrative
courts are effectively enforced
7.8 Alternative dispute resolution
mechanisms are accessible, impartial and
timely
Factor 8: criminal justice Factor 8: criminal justice
8.1. Criminal investigation system is effective 8.1. The police and the public ministry
8.2. Criminal adjudication system is timely investigate crimes effectively
and effective 8.2. The law enforcement and criminal
8.3. Correctional system is effective in adjudication systems are timely and effective
reducing criminal behavior 8.3. Victim’s rights are effectively guaranteed
8.4. Criminal justice system is impartial 8.4. Due process of the law for the accused is
8.5. Criminal justice system is free of effectively guaranteed
corruption 8.5. The criminal justice system is impartial,
8.6. Criminal justice system is free of independent, and free of corruption.
improper government influence 8.6. The prison system guarantees the safety
8.7. Due process of the law and rights of the and rights of detained people
accused
Source The authors, using information from the Rule of Law Index 2017–2018 and the Mexico
States Rule of Law Index 2018
between the thirty-two states, facilitating the identification of performance varia-

tions across the country.
The single-country focus allows for much larger respondent sample sizes than
the Global Index. For the 2018 edition, the Mexican Index was calculated using
first-hand data from a general population survey that was applied to 25,600 people
(800 per state) using face-to-face computer-assisted personal interviewing (CAPI)
surveys, and more than 14,000 experts were identified and invited to answer the
surveys, resulting in more than 1,500 completed surveys in total.7
Furthermore, since the Mexican States Index only seeks to measure the rule of
law in one country, it allowed the WJP to tailor the questionnaires to focus on the
country’s idiosyncrasies and include concepts that are crucial in the current
Mexican policy agenda. In other words, producing a sub-national index allows for
the collection of more in-depth information on the rule of law than would be
possible on a worldwide basis. With this goal in mind, the WJP embarked on a
thorough consultation with experts while designing the survey instruments and the
framework. As a result of this consultation, the WJP adjusted three of the eight
factors, and adopted more third-party sources to complement the expert and
household survey data.
In this sense, Factor 5 (Order and Security) is now composed of data gathered by
the Mexican statistical agency (INEGI), and includes administrative data on
homicide rates, as well as data from the National Victimization Survey, which
covers more than 100,000 households, and provides information to measure crime
victimization rates and perceptions of safety.8 In addition, the Mexico States Rule
of Law Index removed the sub-factor on absence of civil conflict because it
references casualties resulting from battles and terrorism, as defined by third-party
sources,9 which do not apply to the Mexican context.
The WJP also acknowledged the difficulties in measuring Factor 3 (Open
Government) using household surveys, and decided to rely on a rigorous quanti-
tative instrument designed by an academic institution (Centro de Investigación y
Docencia Económicas, CIDE) alongside the National Institute on Access to
Information (INAI; see Cejudo 2017). The Open Government Metric measures the
levels of transparency and civic participation in Mexico at state level. The first
pillar, transparency, is the equivalent of the WJP Index sub-factors of ‘publicized
laws and government data’ and ‘right to information’. The second pillar, civic
participation, reflects what the WJP measures in the sub-factors of ‘civic partici-
pation’ and ‘complaint mechanisms’. The two sub-factors included in the metric
7
The global index had an average of twenty-six completed expert surveys per country, while the
Mexico States Rule of Law Index had an average of forty-seven completed QRQ surveys per state.
This is because the WJP team had a better network of contacts and support that allowed a greater
number of experts per state to be reached.
8
In this way, the sub-factors included in Factor 5 (Order and Security) changed from “absence of
crime, absence of civil conflict, and absence of violent redress” to “absence of homicides, absence
of crime, and people feel safe”.
9
See Uppsala Conflict Data Program and Center for Systemic Peace.
can be further disaggregated to assess the perspective of the government and the
perspective of citizens. It is also important to point out that both in the new and old
conception of this factor, the notion of accountability is not included, since there is
no universal agreement as to the inclusion of this concept.
In producing a subnational index, WJP can also implement lessons learned from
the exercises conducted in the past. One of these lessons comes into play in Factor 7
(Civil Justice). The WJP is one of the leading institutions, alongside multiple
governments, the World Bank, the Organization for Economic Co-operation and
Development (OECD) and The Hague Institute for Internationalization of the Law,
among others, in measuring the burden of justiciable problems through the use of
legal needs surveys.10 Following this exercise, the WJP compared its framework
with those of similar organizations, and recognized that other methodologies tend to
place higher importance on effective access to justice and a fair procedure, instead
of highlighting issues related to transparency. As a result of this analysis, the WJP
modified Factor 7 by giving more weight to measuring access to justice,11 as well as
the procedural justice or fairness in the process, which is a fundamental component
of an effective civil justice system.12
In addition to revising its approach to civil justice, WJP also adjusted is approach
to criminal justice. For instance, the global framework does not incorporate victims’
rights, but this concept was included in the Mexican Index because it was a
cornerstone of the criminal justice reform that culminated in June 2016. The sub-
national Index reorganized Factor 8 (Criminal Justice) to encompass the perspec-
tives of both the victims and the accused. From the victim’s point of view, it
measures whether the police and public prosecutor investigate crimes effectively,
and whether the law enforcement and criminal adjudication systems are timely and
effective, which are a proxy for measuring impunity and respect for victim’s rights
(8.3). From the perspective of the accused, the Index includes respect for due
process of law (covering presumption of innocence, absence of discrimination,
rights of the accused, right to a defense, and right to a fair and public trial), absence
10
For more information, please refer to WJP’s report on Global Insights on Access to Justice
(2018).
11
The WJP restructured Factor 7 to divide one sub-factor relating to access to justice into three
sub-factors: ‘people have trust and capability in the civil justice system’, which measures the
extent to which there are significant barriers of trust, legal awareness and legal knowledge that
prevent people from accessing the justice system; ‘the civil justice system provides effective legal
aid to its users’, which measures the quality and affordability or legal aid services; and ‘the civil
justice system doesn’t have a high cost barrier for its users’, which measures the monetary and
procedural costs that people incur to solve their grievances through the justice system.
12
The WJP grouped what used to be three sub-factors in the global index (absence of corruption,
absence of discrimination, and absence of undue government influence) into one sub-factor
relating to impartiality for the Mexican States Index. The framework now includes a sub-factor
called ‘the civil justice system guarantees a quality process to their users’ to measure outcomes
associated with the quality of the process. Finally, the outcomes that measure the timeliness,
enforcement of the justice system, and the alternative dispute resolution mechanisms remain
unchanged.
of corruption, and a prison system that guarantees security and respect for the rights
of people deprived of liberty.
The remaining four factors of the Global Index, ‘constraints on government
powers’ (1), ‘absence of corruption’ (2), ‘fundamental rights’ (4), and ‘regulatory
enforcement’ (6), received some minor changes to localize the factors to a subna-
tional context, but, all in all, the conceptual framework for these factors remains
essentially the same as presented in the Global Index.
4.5 Results
The section below presents an overview of Mexico’s results from both the Global
Index and the Mexico States Rule of Law Index. Constructed according to the
methodologies described above, the two sets of results present complementary
views of the rule of law in Mexico. The Global Index provides data on specific
elements of Mexico’s performance in a global context and compares Mexico’s
performance with 112 other countries. The Mexico States Rule of Law Index, on
the other hand, provides information on a state-by-state basis, highlighting
in-country variations and facilitating comparisons across states.
As highlighted in the preceding section, the two indices incorporate important
differences in their respective definitions and measurement methodologies. As a
consequence, the results of the two measuring exercises are not comparable.13
Nonetheless, when used as complementary sources of information, they provide a
thoroughly comprehensive view of rule of law adherence in Mexico.
The Global Rule of Law Index allows users to answer broad questions about a
country’s rule of law performance from the global perspective. For example, how
does Mexico’s performance compare to other countries and among regional and
income group peer countries? Data from the Global Index provides an answer to
this question. From an overall perspective, Mexico ranks poorly in adherence to the
rule of law, ranking 92nd out of 113 indexed countries, while the first places belong
to Denmark, Norway and Finland (places 1–3, respectively), and the last places
belong to Afghanistan, Cambodia and Venezuela (places 111–113). Moreover, it
ranks 25th out of 30 countries evaluated in Latin American and the Caribbean and
13
There are five reasons that explain why the results of the Mexico States Rule of Law Index
cannot be compared with information from the Global Index: (i) differences in sub-factors (the
Global Index is comprised of eight factors and forty-four sub-factors, while the Mexican Index is
comprised of the same eight factors but only forty-two sub-factors); (ii) changes in surveys,
(iii) use of third-party sources available only in Mexico; (iv) differences in the calculation of scores
and a higher number of variables used for the Mexico Index (607 variables, compared to 389 in the
global exercise), and (v) changes in the way variables are normalized (the Global Index uses the
Max-Min methodology, which transforms the original variables to lie within a 0–1 interval,
assigning 1 to the country with the highest score and 0 to the country with the lowest score; while
the Mexico Index only transforms variables with scales other than those that range from 0 to 1,
leaving all other variables intact).
34th out of 36 upper middle-income countries. From a topical viewpoint, Mexico

performs particularly poorly on three specific factors, where globally it ranks in
100th place or worse: Absence of Corruption (102nd), Civil Justice (100th), and
Criminal Justice (105th).
The table below presents the global rankings of rule of law adherence overall,
along with the score that ranges from 0 to 1, where 1 means stronger adherence to
the rule of law (Table 4.2).
In addition, the following table shows Mexico’s scores for each of the factors
included in the Global Rule of Law Index 2017–2018 (Table 4.3).
The results of the Global Index help set the stage for more specific questions
related to Mexico’s rule of law performance. For example, what variations in
overall rule of law performance are observed across Mexico’s states? And among
Mexico’s weakest topical performances – corruption, civil justice, and criminal
Table 4.2 Rule of Law around the World

Overall scorea Global ranking
Denmark 0.89 1
Norway 0.89 2
Finland 0.87 3
Sweden 0.86 4
Netherlands 0.85 5
Germany 0.83 6
New Zealand 0.83 7
Austria 0.81 8
Canada 0.81 9
Australia 0.81 10
United Kingdom 0.81 11
Estonia 0.80 12
Singapore 0.80 13
Japan 0.79 14
Belgium 0.77 15
Hong Kong SAR, China 0.77 16
Czech Republic 0.74 17
France 0.74 18
United States 0.73 19
Republic of Korea 0.72 20
Portugal 0.72 21
Uruguay 0.71 22
Spain 0.70 23
Costa Rica 0.68 24
Poland 0.67 25
Slovenia 0.67 26
(continued)

Chile 0.67 27
St. Kitts and Nevis 0.66 28
Romania 0.65 29
Barbados 0.65 30
Italy 0.65 31
United Arab Emirates 0.65 32
St. Lucia 0.63 33
Antigua and Barbuda 0.63 34
Croatia 0.61 35
Grenada 0.61 36
St. Vincent and the Grenadines 0.61 37
Georgia 0.61 38
Greece 0.60 39
Bahamas 0.60 40
Dominica 0.60 41
Jordan 0.60 42
Ghana 0.59 43
South Africa 0.59 44
Botswana 0.58 45
Argentina 0.58 46
Jamaica 0.58 47
Trinidad and Tobago 0.56 48
Senegal 0.55 49
Hungary 0.55 50
Mongolia 0.54 51
Brazil 0.54 52
Malaysia 0.54 53
Tunisia 0.53 54
Bulgaria 0.53 55
Bosnia and Herzegovina 0.53 56
Macedonia, FYR 0.53 57
Nepal 0.53 58
Sri Lanka 0.52 59
Peru 0.52 60
Panama 0.52 61
India 0.52 62
Indonesia 0.52 63
Kazakhstan 0.51 64
Belarus 0.51 65
Malawi 0.51 66
(continued)

Morocco 0.51 67
Albania 0.51 68
Suriname 0.51 69
Burkina Faso 0.51 70
Thailand 0.50 71
Colombia 0.50 72
Guyana 0.50 73
Vietnam 0.50 74
China 0.50 75
Serbia 0.50 76
Ukraine 0.50 77
Moldova 0.49 78
El Salvador 0.48 79
Iran 0.48 80
Belize 0.47 81
Kyrgyzstan 0.47 82
Zambia 0.47 83
Cote d’Ivoire 0.47 84
Ecuador 0.47 85
Tanzania 0.47 86
Lebanon 0.47 87
Philippines 0.47 88
Russia 0.47 89
Dominican Republic 0.47 90
Uzbekistan 0.46 91
Mexico 0.45 92
Sierra Leone 0.45 93
Liberia 0.45 94
Kenya 0.45 95
Guatemala 0.44 96
Nigeria 0.44 97
Madagascar 0.44 98
Nicaragua 0.43 99
Myanmar 0.42 100
Turkey 0.42 101
Bangladesh 0.41 102
Honduras 0.40 103
Uganda 0.40 104
Pakistan 0.39 105
Bolivia 0.38 106
(continued)

Ethiopia 0.38 107
Zimbabwe 0.37 108
Cameroon 0.37 109
Egypt 0.36 110
Afghanistan 0.34 111
Cambodia 0.32 112
Venezuela 0.29 113
Source WJP Rule of Law Index 2017–2018
a
Scores are rounded to two decimal places
Table 4.3 Scores for Mexico Score (0–1)a

in the WJP Rule of Law index
2017–2018 Rule of law score 2017–2018, Mexico 0.45
Factor 1: constraints on government powers 0.46
Factor 2: absence of corruption 0.31
Factor 3: open government 0.61
Factor 4: fundamental rights 0.52
Factor 5: order and security 0.59
Factor 6: regulatory enforcement 0.44
Factor 7: civil justice 0.40
Factor 8: criminal justice 0.30
Source Rule of Law Index 2017–2018
a
justice – which states show the greatest need for improvement? Here data from the
Mexico States Rule of Law Index provides answers.
According to the Mexican States Index, the states with the strongest adherence to
the rule of law are: Yucatán, Aguascalientes, Zacatecas, Campeche, and Querétaro.
The states with the weakest adherence to the rule of law are: Guerrero, Baja
California Sur, Estado de México, Sonora, and Puebla.
Table 4.4 presents the state-by-state rankings for each state’s overall perfor-
mance, as well as scores for each of the eight factors.
The results above present only a small fraction of the total data collected by the
Global Index and the Mexican States Index. And, in the context of this chapter,
these results are primarily meant to illustrate the outcomes of the definitional and
methodological choices outlined in the sections above regarding measurement of
the rule of law. More complete data on Mexico’s rule of law performance is
available through other World Justice Project resources. For further information
about the scores, rankings and methodologies of both indices, we warmly invite the
reader to go to worldjusticeproject.org and worldjusticeproject.mx.
Table 4.4 Scores for the Mexico states rule of law Index 2018
74
Rule Overall Factor 1: Factor 2: Factor 3: Factor 4: Factor Factor 6: Factor Factor 8:
of rank-ing constraints absence open fundamental 5: order regulatory 7: civil criminal
law on of government rights and enforcement justice justice
score government corruption security
powers
Aguascalientes 0.44 2 0.46 0.41 0.43 0.56 0.46 0.40 0.39 0.43
Baja 0.43 7 0.46 0.41 0.41 0.51 0.25 0.49 0.46 0.42
California
Baja 0.35 31 0.31 0.32 0.35 0.48 0.29 0.35 0.34 0.37
California Sur
Campeche 0.43 4 0.47 0.38 0.37 0.49 0.53 0.41 0.41 0.36
Chiapas 0.39 14 0.39 0.32 0.35 0.47 0.59 0.30 0.36 0.35
Chihuahua 0.39 18 0.41 0.36 0.38 0.52 0.27 0.36 0.37 0.42
Ciudad de 0.37 25 0.40 0.27 0.51 0.51 0.27 0.30 0.35 0.32
México
Coahuila 0.43 6 0.36 0.35 0.41 0.48 0.61 0.37 0.44 0.39
Colima 0.39 15 0.43 0.37 0.35 0.52 0.28 0.40 0.37 0.41
Durango 0.42 9 0.43 0.32 0.38 0.47 0.59 0.37 0.42 0.36
Estado de 0.36 30 0.37 0.28 0.44 0.45 0.21 0.39 0.37 0.33
México
Guanajuato 0.41 12 0.40 0.42 0.48 0.51 0.28 0.38 0.40 0.41
Guerrero 0.29 32 0.28 0.28 0.37 0.35 0.19 0.29 0.28 0.30
Hidalgo 0.42 8 0.44 0.38 0.36 0.48 0.57 0.38 0.39 0.38
Jalisco 0.37 23 0.42 0.31 0.45 0.46 0.29 0.35 0.34 0.33
Michoacán 0.40 13 0.40 0.35 0.41 0.49 0.39 0.35 0.39 0.39
Morelos 0.37 26 0.42 0.36 0.38 0.51 0.23 0.27 0.33 0.42
(continued)
C. Gutiérrez et al.
Rule Overall Factor 1: Factor 2: Factor 3: Factor 4: Factor Factor 6: Factor Factor 8:
of rank-ing constraints absence open fundamental 5: order regulatory 7: civil criminal
law on of government rights and enforcement justice justice
score government corruption security
powers
Nayarit 0.37 22 0.40 0.35 0.33 0.48 0.44 0.28 0.31 0.35
Nuevo León 0.42 10 0.48 0.39 0.38 0.54 0.39 0.41 0.39 0.36
Oaxaca 0.39 16 0.44 0.34 0.33 0.49 0.42 0.35 0.33 0.39
Puebla 0.36 28 0.38 0.33 0.34 0.44 0.37 0.40 0.32 0.31
Querétaro 0.43 5 0.43 0.42 0.27 0.53 0.51 0.43 0.36 0.46
Quintana Roo 0.36 27 0.41 0.31 0.40 0.46 0.31 0.37 0.33 0.33
4 Measuring the Rule of Law in Mexico
San Luis 0.39 17 0.41 0.34 0.36 0.50 0.44 0.34 0.33 0.37
Potosí
Sinaloa 0.41 11 0.41 0.35 0.42 0.51 0.42 0.35 0.38 0.41
Sonora 0.36 29 0.40 0.33 0.42 0.46 0.28 0.24 0.36 0.36
Tabasco 0.38 21 0.41 0.36 0.40 0.49 0.28 0.34 0.35 0.37
Tamaulipas 0.38 19 0.37 0.39 0.34 0.45 0.42 0.36 0.37 0.36
Tlaxcala 0.38 20 0.40 0.33 0.29 0.49 0.49 0.29 0.34 0.38
Veracruz 0.37 24 0.34 0.31 0.41 0.42 0.47 0.38 0.31 0.30
Yucatán 0.45 1 0.42 0.38 0.38 0.51 0.77 0.38 0.33 0.42
Zacatecas 0.44 3 0.43 0.42 0.43 0.51 0.39 0.42 0.46 0.44
National 0.39 – 0.41 0.35 0.38 0.49 0.40 0.36 0.36 0.38
average
Source Mexico states rule of law index 2018
a
75
4.6 Conclusion
In order to maintain and improve the rule of law, it must be measured and evalu-
ated. This chapter examines the process of measuring the rule of law through the
guiding examples of the global WJP Rule of Law Index and the Mexico States Rule
of Law Index. In particular, it explores the choices made by the WJP in its approach
to defining the rule of law and measuring the rule of law in order to offer insight
into key questions regarding rule of law measurement.
Ultimately, the chapter provides the framework used by the World Justice
Project to measure the rule of law based on a multidimensional, outcome-oriented
and user-based approach of composite indicators. The chapter also describes the
methodology behind the global Rule of Law Index, which has measured the rule of
law in more than a hundred countries, as well as conceptual and methodological
considerations made in producing the Mexico States Rule of Law Index.
Based on these definitional and methodological decisions, results for Mexico are
presented from both the Global Index and the Mexican States Index.
Looking ahead, the WJP recognizes that even producing an index on a subna-
tional level does not capture the full range of experiences across various demo-
graphic groups and populations. Work must be done on designing indicators that
capture the experiences of vulnerable population groups. In an effort to improve the
inclusion of its indicators, WJP is preparing to present thematic data products and
reports that showcase the experiences of people accessing the justice system, per-
ceptions of the criminal justice system, experiences of discrimination, knowledge of
legal rights, legal awareness, and more.
Given the experiences in several countries during recent years, the importance of
the rule of law cannot be overstated. And since no country has ever achieved a
perfect realization of the rule of law, it is fundamental to universally promote and
strengthen it. Measurement is an essential part of that process. It is our hope that the
information provided in this chapter provides additional clarity and encouragement
for continued measurement and evaluation of the rule of law.
References
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mexico-2018/.
Part II
Explaining the Fragility of the Rule of Law
in Mexico
Chapter 5
How Many Constitutional Reforms
Produce Rule of Law?
Abstract The Mexican Constitution is one of the oldest constitutions compared to

the average lifetime of constitutions across the world, but it also represents one of
the texts with a larger degree of amendments compared to the original text. The
existence of a large number of reforms can refer to high levels of flexibility,
something that involves the capacity to integrate new rights and institutions to
respond to political transformations and the demands of an increasingly plural
society but, despite its longevity and undoubted capacity for transformation, the
Constitution has been unable to constitute itself as the effective foundation for the
development of a democratic rule of law in Mexico. This article focuses on two
basic questions: why is the rule of law so weak in Mexico? And to what extent do
the problems of design, coherence and constitutional change affect performance of
the rule of law? In the Mexican case, the logic that understands the Constitution as a
political instrument and the hyper-reformism that emerges from it, affecting the
coherence, meaning, and effectiveness of the text, has made it impossible to
transform the Constitution into exactly the coordination mechanism on which the
development and quality of the rule of law partly depends.
! !
Keywords Amendments Constitution Constitutional change !
!
Hyper-reformism Mexican constitution Rule of law !
Prof. Dr. Juan Antonio Le Clercq, Ph.D. in Political and Social Sciences, Department of
International Relations and Political Science, UDLAP. Ex hacienda de Sta. Catarina Mártir,
72810, San Andrés Cholula, Puebla, Mexico. E-mail: [email protected].

https://doi.org/10.1007/978-3-030-31314-2_5
82 J. A. Le Clercq
5.1 Introduction
Mexico stands out for having one of the world’s oldest constitutions compared to
the average lifetime of constitutions across the globe, but it also represents one of
the texts with a larger degree of amendments compared to the original text. In one
hundred years of life, the Mexican Constitution has suffered 233 amendments
affecting the content of 711 articles; such changes tend to accelerate during the
democratic transition period, especially since 1997, when the ruling party lost
absolute majority for the first time in at least one of the Congress’s chambers.
Despite the different regime changes experienced since the end of the Mexican
Revolution, constitution longevity signals political stability as well as public
recognition and legitimacy. The existence of a large number of reforms can refer to
high levels of flexibility, something that involves the capacity to integrate new
rights and institutions to respond to political transformations and the demands of an
increasingly plural society. It also reflects the willingness to modify institutions
according to the agenda and interests of dominant coalitions or for the purpose of
restricting rights and curbing social demands.
Despite its longevity and undoubted capacity for transformation, however, the
Constitution has been unable to establish itself as an effective foundation for the
development of a democratic rule of law in Mexico. Although the Mexican
Constitution is regularly celebrated by political actors as the cornerstone of
Mexican public life,1 it is more an instrument of political domination that represents
the ideals and aspirations of the winning groups in the different political and mil-
itary disputes of national history than the supreme legal norm and starting point of
the hierarchical order of the laws.
According to The Rule of Law Index (RLI 2018), Mexico stands out as a country
with mediocre performance in measuring the quality of the rule of law. Mexico
obtains a grade of 0.45 and is located in the 92nd place among 113 studied cases;
which involves a setback of four places in relation to the previously occupied
position. In other words, the rule of law in Mexico is very weak and its deterioration
tends to increase. If we analyze each of the eight factors that make up the study,
Mexico’s performance is inefficient in practically all the variables, highlighting the
very negative results in Criminal Justice (0.30), Absence of Corruption (0.31), Civil
Justice (0.40), Regulatory Enforcement (0.44), and Constraints on Government’s
Powers (0.46).
The Global Impunity Index (IGI 2017) (Le Clercq/Rodríguez 2017) and the
Global Impunity Index Mexico (IGI-MEX 2018) (Le Clercq/Rodríguez 2018),
highlight the dysfunctions levels that characterize Mexico in terms of security,
justice and respect for human rights. Such grades place Mexico in position 66 out of
1
The Constitution is celebrated every February 5th, in remembrance of the date of its promulgation
in 1917, as part of the regular ceremonies of Mexican politics. However, the political actors that
used to celebrate the constitution with their annual speeches show no concern over its mandate’s
day-to-day violations.
5 How Many Constitutional Reforms Produce Rule of Law? 83
the 69 countries studied. Up to 28 of the thirty-two states are classified as high or

very high impunity cases, while just two are identified as “atypical cases” in which
statistical impunity prevails due to the inconsistency of information reported by its
state governments.2 The existence of very high levels of impunity in Mexico is
mainly related to problems in the structure of the justice system, inadequate
functioning of the security system, and serious human rights violations.
The starting question is why is the rule of law so weak in Mexico, even when it
has been subject to a large number of constitutional amendments, many of them
made with the intention of updating the legal framework and national political
institutions? We do not mean that a stronger rule of law is a direct function of the
number of amendments in the Constitution, something that relates more to the
quality of its content and the characteristics of the implementation process. Our
interest is to focus precisely on the lack of correlation between reforms and the rule
of law in Mexico, even when a significant number of amendments are actually
meaningful and relevant for institution-building or were designed with a stronger
rule of law in mind.3
To what extent do the problems of design, coherence and constitutional change
affect the performance of the rule of law? From our perspective, the Mexican
Constitution represents a case of incapability of self-imposing compliance and,
therefore, failure to become an effective mechanism that coordinates interactions
and exchanges with political and social actors. In other words, the existence of a
large number of reforms, and especially a growing tendency to change during the
period of democratic transition, has been insufficient to generate processes that
effectively strengthen the rule of law, again even when congress has approved
reforms with quality content. This can be explained by different kinds of factors, but
especially by the interpretation and use of the Constitution as a political rather than
a legal instrument.
Analyzing the “rule of law” implies distinguishing thin conceptual definitions,
centered on “formal legality” criteria, which may include attributes of the law, legal
institution fundamentals, democratic controls over government, and the protection
of individual rights, from thick versions that additionally include qualitative
2
“Statistical Impunity” refers to those cases in which the data is non-existent or insufficient due to
the inability or lack of political will to report statistical information (Le Clercq/Rodríguez 2018:
169).
3
Some of the most relevant amendments in the last decade, even when some of them were
contested, are reforms on class action (29/07/2010), habeas corpus (06/06/2011), human rights (10/
06/2011), education (26/02/2013), telecommunication and economic completion (11/06/2013),
procedures for criminal justice (08/10/2013), energy (20/12/2013), transparency (07/02/2014),
electoral politics and the independence of the general attorney´s office (10/02/2014), corruption
(27/05/2015), torture and forced disappearance (10/07/2015), Mexico City’s political reform (29/
01/2016), and crime victims (25/07/2016). The point, nonetheless, is that even when their contents
are relevant to the goal of strengthening the rule of law, most reforms face implementation and
compliance problems, are poorly fulfilled – especially at state level – or are strongly contested by
political forces, so it’s difficult to translate formal mandates into effective democratic institutions
for the rule of law.
84 J. A. Le Clercq
dimensions and respect for human and social welfare rights (Tamahana 2004;
Bingham 2010; Skaaning 2010). Due to the characteristics of the content and scope
of the Mexican Constitution, it seems more appropriate to understand the challenges
involved in developing and complying with the rule of law, as well as the social
expectations generated, from a thick approach.
In the first part, we discuss the role of a constitution from an institutional
perspective and analyze different approaches that have emphasized its function as a
coordination mechanism and understand change as an endogenous process.
Secondly, we identify the distinctive characteristics of the Mexican Constitution
within the framework of its centenary. Third, from a quantitative perspective we
analyze the process of constitutional change in Mexico throughout its one hundred
years of life, as well as the impact of its reforms in different political cycles. Fourth,
we discuss the political function that has historically determined the life of the
Mexican Constitution and the manner in which this has affected its proper juridical
function. Lastly, we summarise our conclusions.
5.2 An Institutional Approach to the Role

of the Constitution
A constitution represents the fundamental political agreement of a nation, the set of

general legal norms that frame the legitimate exercise of political power. In this
sense, a constitution is a specific type of institution, in fact, the institution of
institutions, which establishes and structures the political order, formalizes the
rights of the citizens and establishes the foundations of the rule of law.
Independently of its extension or particular characteristics, it integrates guiding
principles, encapsulates the values of national identity, organizes public powers and
their attributions, establishes limits to public powers through checks and balances,
creates mechanisms for resolving conflicts between powers, authorities and citizens,
defines spaces for public deliberation, and guarantees the exercise of rights for the
members of the community.
According to Grimm (2006: 33–35, 48) modern constitutions can be distin-
guished from fundamental laws or domination contracts by three main elements:
(1) they constitute political power and do not assume it as a given fact that only
needs to be modified; (2) they do not grant particular obligations, but establish the
broader framework of obligations to political power; (3) their effects and scope are
universal and not limited to contracting parties. Their most important element is
their consensual basis, the prior consensus that allows, in principle, the constitutive
act itself, but also the political and social consensus that emerges from the common
norms that feed back through judicial interpretation and the legislative change.
Friedrich (1950: 27) emphasizes that the essence of constitutionalism is that it
defines the basic “restraints upon the arbitrary exercise of governmental power” by
means of effective democratic institutions for the division of powers and the
protection of individual rights. In this sense, the content of modern constitutions

usually focuses on the recognition of individual rights, the organization of political
institutions, and the separation of powers. In contrast, for Sartori (2016: 233),
modern constitutions should be understood as forms or procedures that “structure
and discipline the decision-making processes”, and in this sense, they define “the
way in which the norms are created” for “ensuring a controlled exercise of power”.
This argument implies that the function of establishing the governance structure is
more relevant than the definition of a bill of rights.
From a perspective of strategic competition, Cooter (2000: 1–2) argues that a
“constitution is the state’s highest law”. This has three important consequences.
A constitution is more general than the laws and therefore focuses on distributing
powers and protection of rights, and not on implementing mandates or regulating
particular behaviors. Its norms trump and prevail over any other type of laws. And,
finally, it is more entrenched and harder to change than other laws. On the other
hand, although the constitution establishes the basic rules and constraints for the
strategic game of politics, where the coordination of individual and collective
actions is central, its first objective is “to impose the rule of law and protect the
liberty of citizens” (Cooter 2000: 11) – something that also implies defining the
legal rules that will determine the distribution of public and private goods according
to criteria such as efficiency or justice.
Also from a strategic competition perspective, Hardin (1999: 87, 103–017)
points out that the constitution is wrongly understood as a kind of contract, but
should rather be viewed as the institution that creates the institution of contract. The
existence of a constitution provides the possibility of contracting by solving the
previous coordination problem of the actions and behaviors permitted socially. That
means that the costs of reform need to be higher in order to fulfil its constraining
function. This perspective has been taken up by North and Weingast (1989), who
understand a constitution to be an institutional equilibrium or self-imposed
focal-point that allows opposing interests to be coordinated in a decentralized way,
and social actors to interpret rules and mandates and to sanction non-compliance
within a single legal order.
Waldron (2016) maintains a much more critical position towards liberal con-
stitutionalism approaches centered on the negative sense of liberties and limitation
of powers. He emphasizes that both the constitution and rule of law imply legal
control over public powers, but also focus on the expansion or promotion of social
objectives: empowerment of authorities, provision of public goods, definition of
public objectives, creation of institutions to address cooperation and coordination
problems, establishment of decision-making centers, facilitation of spaces for
deliberation and public discussion and participation.
From a different perspective but also questioning the strictly ‘negative’ sense of
a constitution, Bellamy (2007) claims a form of political constitutionalism in which
competition, public debate and accountability through democratic processes rep-
resent more effective ways of guaranteeing the exercise of rights, controlling power,
and promoting equal treatment for citizens than strictly legalistic perspectives.
Meanwhile, Sunstein (2001) sees the constitution and its mechanisms of checks and
86 J. A. Le Clercq
balances as a structure aimed at promoting democratic deliberation, especially in

societies where pluralism translates into deep disagreements in relation to common
citizenship values, the provision of public goods, and different ways of under-
standing public affairs.
Finally, from an empirical and comparative perspective, Elkins, Ginsburg/
Melton (2009) focus their analysis on the dynamics of institutional change. While
from this perspective it is important to understand constitutional functions – such as
government control, the existence of rights, national goals and objectives, defini-
tions of authority patterns and government institutions – the emphasis is on how
attributes of constitutional design, such as flexibility, inclusion or specificity, can
explain both performance and the way change occurs. In this sense, a constitution
depends on factors such as its capacity to impose mandates or the political nego-
tiation between elites – elements related to institutional design – rather than envi-
ronmental factors or external shocks.
From this brief analysis, we can highlight four key elements of an institutional
interpretation of the constitution: (1) a constitution is the institution whose prin-
ciples, rules, and norms formalize political order and establish the foundations for
the rule of law; (2) although guaranteeing rights, defining government institutions
and controlling the exercise of power are key elements, their social objectives,
decision-making capacities, and mechanisms for public deliberation are equally
relevant; (3) a constitution may have its origins in or respond to exogenous or
environmental factors, but its creation, interpretation, and alteration respond pri-
marily to elements of its design that arise from political negotiations in which
unequal distributive effects exist; (4) finally, it can fulfill its functions only if it is
capable of endogenously self-regulating its compliance, that is, if political actors
themselves have incentives to respect and fulfill their mandates and, therefore, it is
reproduced as a mechanism of decentralized coordination.
5.3 The Distinctiveness of the Mexican Constitution
The Mexican Constitution has its origin in an armed conflict and, throughout its one
hundred years of life, established the political bases of the social contract that
governed the post-revolutionary regime. As the product of a popular revolution, one
of its main attributes is the inclusion of social rights and the continuous incorpo-
ration of new rights throughout its different reforms, a trend that has increased
during the first decades of the twenty-first century. The second distinctive feature is
the organization of political power in a presidential regime and a federal system
similar to the constitutional design of the United States. This presidential system
has had to coexist first with a hegemonic party rule and later with a pluralist
democracy. However, this model has also been characterized by its flexibility to
absorb changes in both regime and party system design, and in recent decades, as
part of a democratic transition, it has incorporated mechanisms of control over the
Executive and constitutionally autonomous organisms at both the federal and state
levels.
Beyond these regime features and the rights system extension, eight character-
istics are central to understanding its particularity as a political-legal instrument and
the problems involved in the development of a democratic rule of law: longevity,
flexibility, inclusion, specificity, institutional weakness, social character, fetishiza-
tion of change, and institutional inability to establish foundations for the rule of law.
While the lifespan of constitutions is nineteen years on average (Elkins et al.
2009: 2), the Mexican Constitution has recently celebrated its first centenary. This
makes it the eleventh-longest constitution in the world and the oldest in Latin
America, considering the years since its enactment. In terms of duration, it is only
behind the United Kingdom (1215), the United States (1789), Norway (1814), the
Netherlands (1815), Belgium (1831), New Zealand (1852), Canada (1867),
Luxembourg (1867), Tonga (1875) and Australia (1901).4
Along with its longevity, the Mexican Constitution has proved to be extraor-
dinarily flexible and able to adapt to the various regime changes that have happened
since the end of the Revolution, going through the hegemonic party presidentialism
and the democratic transition.5 As will be shown, throughout its hundred years of
life, it has undergone 233 amendments, which involve the reform of 698 articles
and 13 transitory articles. This translates into a modification rate of 2.33 amend-
ments and 7.11 articles per year.
Ginsburg/Melton (2014: 4) point out that flexible and detailed constitutions,
which they call “statutory constitutions”, contribute to constitutional stability, as
they allow design defects and unintended consequences to be remedied, and attach
the constitutional text to changing political practices, thereby renewing the consent
of different generations. Flexible constitutions have the additional virtue of allowing
gradual instead of radical change: “The constitutions of India, Mexico, and Brazil,
to take three prominent examples, are amended nearly every year. Such constitu-
tions have the virtue of being changed through internal mechanisms, avoiding the
costlier route of a total replacement”.
However, several authors have noticed the existence of negative effects that the
excessive amount of reforms have had on constitutional stability and coherence in
the Mexican case (Casar/Marván 2014; Carbonell 2014; Fix-Fierro 2017;
Fix-Fierro/Valadés 2017; Pou; 2018; Rivera León 2017; Martín Reyes 2017;
Salazar Ugarte 2017; Velasco Rivera 2017). According to Caballero (2018), the
constitutional reforms have taken the form of a fetish (thesis shared by Casar 2013),
4
Data from the Comparative Constitution Project. This ranking considers the constitution long-
evity since the year of its enactment; at: http://comparativeconstitutionsproject.org/ccp-rankings/
(27 July 2018).
5
The great quantity of reforms made to the Mexican Constitution have occurred despite the
rigorous procedure established in Article 135, which requires a majority vote in both chambers of
Congress and the approval of the majority of the state’s legislatures. The inability of the ruling
party to achieve an absolute majority in some of the chambers since 1997 did not affect the
dynamic of constitutional change; in fact, the reformist tendency increased.
88 J. A. Le Clercq
a practice that assumes that any type of political policy change necessarily requires
modifying the Constitution, whereby elements corresponding to different legislative
scope are integrated into the main text. As part of the fetish, political actors assume
that everything that is integrated updates, strengthens, improves or even guarantees
coherence, generating a process that reinforces itself through time.
Focusing on the same problem, Pou (2018) argues that the Mexican constitu-
tional change takes the form of “hyper-reformism”, a dynamic of continuously
altering the stability, coherence, clarity and structure of the constitutional text.
Hyper-reformism affects the ability of constitutions to fulfill two central functions
effectively: (1) legal orientation and foundation of the rules, definition of rights, and
constitutional control; (2) organization of power, distribution of functions, demo-
cratic conversation, and historical balance.
Fix-Fierro/Valadés (2017: 1–2) agree that even when the constitutional change
has facilitated the inclusion of new institutions and content in response to recent
political challenges, the amending dynamic has reached a limit: “it is also true that
the continuous reforms and additions that it has undergone have resulted in a text
that is increasingly longer and disorganized, unsystematic and neglected from a
technical point of view.” They propose a complete reorganization and consolidation
of the constitutional text and the creation of a Constitutional Development Law as a
way to guarantee its stability and viability in the long term.
The loss of order and coherence of the Constitution is also related to the
excessive specificity and detail of many of its reforms, a trend that has worsened in
recent years. Emilio Rabasa, one of the main critics of the constitutional project of
1917, questioned the creation of Article 27, among other things, because instead of
just the addition of a specific article, it integrated an entire treatise by itself into the
Constitution (Aguilar Rivera 2017: 25). This same criticism, the tendency to create
extensive and detailed ‘treaties’, can be applied to recent constitutional reforms,
such as human rights, telecommunications, economic competition, energy, electoral
politics, and the struggle against corruption reforms, among many others.
The original extension of the Constitution of 1917 was approximately 21,000 words,
while in 2018 its 136 articles, without counting its title and preamble, reach 66,822
words. In fact, if the transitory regime derived from the 233 amendments is considered,
the Mexican Constitution reaches 121,591 words. This makes it the second most
extensive constitution, only behind India’s 146,385 words and ahead of Nigeria’s
(66,263), Brazil’s (64,488), Malaysia’s (64,080), and Papua New Guinea’s (58,490).6
This extension and specificity, however, has also allowed the Constitution to be
flexible, adapt to changing times and include the demands of new emerging actors,
but also to promote institutional changes according to the agendas and interests of
dominant groups and winning coalitions. In this sense, Ginsburg/Melton (2014) are
6
Constitutions Rankings at: http://comparativeconstitutionsproject.org/ccp-rankings/ (27 July
2018). The data corresponds to information updated April 8, 2016, but for the case of Mexico, I
have added the latest reforms up to September 15, 2017. In the Comparative Constitution Project,
Mexico ranks in position six with 57,087 words, but this does not include five additional
amendments.
right when they identify flexibility as a virtue and a mechanism to guarantee greater
stability through gradual change instead of the complete replacement of the text.
One way to observe the degrees of inclusion and the response to social demands is
through the capacity of legislators to incorporate new rights into the Constitution.
Although the Mexican Constitution stands out for its social compromise since the
moment of its creation, at least 27% of the constitutional reforms had the objective
of increasing or updating political, economic, social, or cultural rights (Chart 7).7
The Mexican Constitution is in eighth position in terms of recognizing rights with a
total 81 rights recognized, only surpassed by Ecuador (99), Bolivia and Serbia (88),
Cape Verde and Portugal (87), Armenia and Venezuela (82).8
These different reforms, and especially those carried out in the context of the
democratic transition, have profoundly affected the design and institutional char-
acteristics of the regime. As mentioned earlier, several changes have been relevant
and timely, with content which is meaningful for the purpose of updating national
institutions, including the creation of several autonomous constitutional bodies,
judicial independence and transformation of the justice system, indigenous auton-
omy and rights, human rights definitions, an anticorruption system, transparency
mechanisms, mandates for education evaluation, new rules for private participation
in the energy sector, a series of political and electoral reforms, and transformation
of local-national coordination through amendments to Article 73 (see in Fig. 5.10
the articles with the most reforms).
From the perspective of institutional change, for Caballero (2018) the dependence
on constitutional reform as an updating mechanism instead of judicial interpretation,
secondary legislation, or public policy highlights a weak constitution with coherence
problems – something exacerbated by the lack of external control over the
amendment process and its content. As a result of fetishization of the reform process
itself, there has been a surge in the perceived need to constantly reform the text and
add elements that more properly correspond to other legal or policy areas.
Finally, despite the amount of reforms that have been carried out over the last
hundred years, the extension and detail of their mandates and their capacity to
incorporate new demands or adjust the institutional structure, the Mexican
Constitution stands out for its inability to generate an effective rule of law.
Therefore, a central problem is the profound disconnection between the norms,
rules, and aspirations that the text gathers and its fulfillment in daily political and
legal practice. A central theme of this chapter is precisely why a constitution that is
able to reform and adapt over time does not translate into the existence of an
effective and democratic rule of law.
7
The fact that there has been a trend in increasing the number of rights formally recognized in the
constitution does not mean that they are successfully implemented or that fundamental rights are
actually respected in contemporary Mexico.
8
Constitutions Rankings, op cit. Updated to April 8, 2016. Although more formal rights are added,
it does not necessarily mean that they are respected or implemented. Mexico has a greater number
of constitutional rights, above the international average, but with the existence of severe violations
of human rights (consulted 27 July 2018).
90 J. A. Le Clercq
5.4 The Dynamics of the Constitutional Reform
To understand the magnitude and scope of the constitutional change in Mexico

throughout the last hundred years, and its capacity to adapt and incorporate ele-
ments and political demands, we can review the number and type of amendments
that have taken place since its enactment on February 5th, 1917. Figure 5.1 shows
the 233 reforms to the Constitution and their distribution per year, as well as the 711
articles altered as a result. It also highlights an increasingly reformist trend and
greater impact on the modification of articles as the century of constitutional life
advances. On average, the Mexican Constitution has been reformed 2.33 times,
affecting 7.11 articles per year.
However, the magnitude of the constitutional change is greater than can be
observed from the identification of the number of amendments and modification to
its articles. Figure 5.2 incorporates into the analysis the number of transitory arti-
cles created for the implementation of the different amendments. Although the
primary objective of the transitory articles is to guarantee the gradual entry into
60
50
40
30
20
10
0
1917
1921
1925
1929
1933
1937
1941
1945
1949
1953
1957
1961
1965
1969
1973
1977
1981
1985
1989
1993
1997
2001
2005
2009
2013
2017
-10
Reforms (233) Ar cles (711) Linear (Ar cles (711))
Fig. 5.1 Constitutional Reforms, 1917–2018. Graphs 1 to 9 draw upon the list of reforms per
year, articles, and presidential periods elaborated by the Chamber of Deputies. However, there are
no coincidences in the number of reforms and reformed articles for two main reasons: (1) the
Chamber of Deputies does not take into consideration the constitutional reform to Article 22 made
December 15th, 1934; (2) we detected mistakes in the listing of articles reformed during the
presidencies of Plutarco Elías Calles, Aberlardo Rodríguez, Lázaro Cárdenas, Miguel de la
Madrid, Ernesto Zedillo, and Felipe Calderón. See [http://www.diputados.gob.mx/LeyesBiblio/ref/
cpeum.htm]. Source The author with information from the Chamber of Deputies of the Mexican
Congress
60
50
40
30
20
10
0
1917
1920
1923
1926
1929
1932
1935
1938
1941
1944
1947
1950
1953
1956
1959
1962
1965
1968
1971
1974
1977
1980
1983
1986
1989
1992
1995
1998
2001
2004
2007
2010
2013
2016
Reforms (233) Ar cles (711) Transitory (553)
Fig. 5.2 Reforms, Articles and Transitory changes, 1917–2018. Source The author with infor-
mation from the Chamber of Deputies of the Mexican Congress
force of the reforms, and therefore their lifespan is limited, at least since the 1990s,
the number of transitory articles integrated per reform has increased. This alters
their original function to become alternative mechanisms for incorporation into the
constitutional text. The number of transitory articles has been added to our different
charts as a complementary indicator of the real magnitude of the constitutional
change in Mexico.
Figure 5.3 presents the modifications to the Constitution of each presidential
period, highlighting the impact of the last two presidential terms, governed by
Felipe Calderón and Enrique Peña Nieto. Although these governments together
cover only twelve years of constitutional life, they made 27% of the amendments,
affected 38% of the total modified articles and, highly relevant, created 48% of the
total transitory articles. In fact, during the presidency of Enrique Peña Nieto, more
transitory changes were created (170) than articles were modified (154). Although
most of the constitutional reforms only create one (153) or two transitory articles
(31), and only 23 reforms contain more than six transitory ones (with extreme cases
of 17, 18 and up to 21 transitory articles), the majority of these are concentrated in
the Calderón (5) and Peña Nieto (11) periods. However, it is since the presidency of
Carlos Salinas de Gortari that the balance was modified in comparison with pre-
vious periods: CSG: R: (15)/A (55)/T (43); EZP: R (18)/A (80)/T (63); VFQ: R
(19)/A (31)/T (40); FCH: R (36)/A (111)/T (94); EPN: R (27)/A (154)/T (170).
Between 1982 and 2018 78% of the transitory articles were created, but in the
92 J. A. Le Clercq
180
160
140
120
100
80
60
40
20
Ar cles (711) Transitory (553) Reforms (233)
Fig. 5.3 Constitutional Reforms by Presidential Period, 1917–2018. Source The author with
information from the Chamber of Deputies of the Mexican Congress
2000–2018 cycle, the years of presidential alternation, more transitory changes

were created (304) than articles were modified (296) (Fig. 5.4).9
That reflects that although many of the recent reforms are increasingly complex
and require a much more specific transitory frame, transitory articles were used to
incorporate additional modifications to the Constitution without modifying the text
itself. They tend to create mandates that correspond to secondary legislation or
broader criteria to establish or limit the interpretation of the new rules. This implies
the intention of containing or distorting the reach of the original constitutional
reform. The increasing creation of transitory articles as part of the constitutional
reforms is part of the climate of political distrust that characterizes negotiations
between parties and, as its consequence, the intention of bound the design of
secondary legislation directly. Chacón (2018) has analyzed the impact of the
change in direction of the transitory articles in particular of the political-electoral
reform of 2014.
Figures 5.4 and 5.5 show the magnitude of the constitutional change in different
stages of modern Mexican history. From 1982 to 2018, 58% of the amendments
were made and 70% of the articles modified, which gives a ratio of 3.72 reforms
and 13.78 modified articles in this period alone, a figure much higher than the
average in the hundred years of constitutional life. It is highly significant that 40%
9
Carlos Salinas de Gortari (CSG), Ernesto Zedillo Ponce de León (EZP), Vicente Fox Quezada
(VFQ), Felipe Calderón Hinojosa (FCH), Enrique Peña Nieto (EPN). Reforms (R), Amendments
(A), Transitory Articles (T).
350
300
250
200
150
100
50
0
1917-1946 1946-1982 1982-2000 2000-2018
Fig. 5.4 Constitutional Reforms by Political Period, 1917–2018. Source The author with infor-
mation from the Chamber of Deputies of the Mexican Congress
450
400
350
300
250
200
150
100
50
0
Reforms (233) Ar cles (711) Transitory (553)
1917-1997 1998-2018
Fig. 5.5 Constitutional Reforms and Democratic Transition. Source The author with information
from the Chamber of Deputies of the Mexican Congress
94 J. A. Le Clercq
250
200
150
100
50
0
1917-1929 1930-1939 1940-1949 1950-1959 1960-1969 1970-1979 1980-1989 1990-1999 2000-2009 2010-2018
Fig. 5.6 Constitutional Reforms by Decade. Source The author with information from the
Chamber of Deputies of the Mexican Congress
of the reforms and 45% of the modifications to articles have occurred since 1997 (a
ratio of 4.5 reforms and 15.38 articles modified per year), when the ruling party did
not have an absolute majority in any of the Chambers of Congress. This implies that
the difficulty in building qualified majorities and the support of local congresses did
not really represent an obstacle to presidents promoting changes to the Constitution.
Figure 5.6 complements the information by distributing the reforms by decade.
As seen in Fig. 5.7, the policy area with the largest quantity of reforms in one
hundred years of constitutional life has been the organization and powers of the
Legislative Branch (27%), which is largely explained by the fact that Article 73 has
undergone 79 reforms aimed at increasing the matters in which the federal congress
can legislate.10 Other areas modified in depth involve the judiciary (14.57%),
federalism and economic stewardship by the State (10.42%). Articles that involve
the recognition of rights reach 27%.11 The specific weight of the modifications for
each of these areas in different historical and presidential periods can be observed in
Figs. 5.8, 5.9 and 5.10.
10
Compared to the overall reforms involving Article 73, Article 124, which structured Mexican
federalism by establishing that the faculties that are not expressively granted to the Federation
correspond to the states and Mexico City, has only been modified once – as part of the political
reform of Mexico City in 2016.
11
Even when they involve the recognition of rights, Article 27, which refers to land and property
rights, and Article 123, which refers to labor relations, are accounted for as part of the faculties and
obligations of the economic stewardship by the State.
General Principles 1.42%
Responsibili es 8.90%
Federalism 10.42%
Judicial 14.57%
Execu ve 7.28%
Legisla ve 27%
Ci zenship 5.71%
Economic Stewardship 10.42%
Security and Jus ce 6.71%
Rights 7.57%
Fig. 5.7 Constitutional Reform by Selected Topics, 1917–2018. (‘Rights’ includes reforms to
Articles 1–12, 24 and 29; Security and Justice to Articles 13–23; Economic Stewardship to
Articles 25–28, 123 and 131; Citizenship to Articles 30–38 and 41; Legislative to Articles 50–78;
Executive to Articles 80–93; Judicial to Articles 94–107; Federalism to Articles 42–48, 115–122,
and 124; Responsibilities to Articles 79, 108–114, 125–128, and 134; and General Principles to
Articles 39, 40, 49, 129, 120, 132, 133, 135, and 136). Source The author with information from
the Chamber of Deputies of the Mexican Congress
General Principles
Responsibili es
Federalism
Judicial
Execu ve
Legisla ve
Ci zenship
Economic Stewardship
Security and Jus ce
Rights
0 20 40 60 80 100 120 140 160 180 200
1917-1946 1946-1982 1982-2000 2000-2018
Fig. 5.8 Reforms by Selected Topic by Period, 1917–2018. Source The author with information
96 J. A. Le Clercq
EPN
VFQ
CSG
JLP
GDO
ARC
MAC
ALR
EPG
AOS
0 20 40 60 80 100 120 140 160
Rights Security and Jus ce Economic Stewardship
Ci zenship Legisla ve Execu ve
Fig. 5.9 Reforms: Select Topics by President, 1917–2018. Source The author with information
90
80
70
60
50
40
30
20
10
0
A3 A4 A27 A28 A41 A73 A74 A76 A79 A89 A94 A97 A104A105A107A111A115A116A122A123
Fig. 5.10 Articles with most Reforms, 1917–2018. Source The author with information from the
Chamber of Deputies of the Mexican Congress
5.5 Constitutional Change as Hyper-Reformism and Rule

of Law Deficit
The Mexican Constitution stands out both for its longevity and its capacity to adapt
and integrate changes as a response to political, economic and social transforma-
tions or as part of presidential agendas. The question is why this longevity or the
magnitude of the changes made – five times the international average – has not
translated into a more effective democratic rule of law, as pointed out by interna-
tional indexes that measure attributes of the rule of law (Le Clercq and Rodríguez,
2017 and 2018; RLI, 2018).
The effectiveness of the rule of law does not depend exclusively on the con-
stitutional design or the scope of its content, nor on its longevity and number of
amendments. However, constitutional norms and mandates establish the founda-
tions of the rule of law and legal mechanisms for decentralized coordination of
individual and social actions. Understanding the way in which constitutional
attributes foster development of the rule of law is a central political problem,
especially in cases such as Mexico’s, in which the Constitution is a permanent
object of political negotiation and expectations of social transformation.
This analysis seeks to identify the relationship between characteristics of the
Constitution and degrees of the rule of law. It reviews the potential relationship
between four variables and its correlation coefficient for 114 countries
(Figures 5.11, 5.12, 5.13, 5.14 and 5.15). These variables are: (1) longevity of the
Constitution; (2) extension of the text according to the number of words it contains;
(3) the scope of its content, understood as “the percentage of 70 major topics from
the Comparative Constitutional Project that are included in any given constitution”;
and (4) rule of law degrees according to the Rule of Law Index (RLI).12
First, the data indicates a relationship between the longevity of the constitutions
and a better performance in the RLI (Fig. 5.11), with a correlation coefficient of
0.57. We need to interpret this result carefully because there are important cases of
younger constitutions with a stronger rule of law than some older constitutions, but
it is relevant that constitutions with more than a forty-year lifespan tend to perform
better according to the RLI. Even when there are cases of young constitutions with a
strong rule of law, some young constitutions find it more difficult to become
established as a mechanism of coordination to regulate the interactions of
12
The first three variables are from the Constitution Rankings, elaborated by The Comparative
Constitution Project with information updated to April 8, 2016. The seventy elements of ‘scope’
include characteristics from general, obligations, rights, institutional designs, elections, regulatory
organs, international criteria, criminal procedures, special issues and amendment rules, [http://
comparativeconstitutionsproject.org/ccp-rankings/] (Consulted 05/09/2018). The information from
the WPJ Rule of Law Index corresponds to the 2017–2018 report, which considers forty-four
indicators arranged in nine factors: constraints on government, absence of corruption, open gov-
ernment, fundamental rights, order and security, regulatory enforcement, civil justice, criminal
justice, and informal justice, at: https://worldjusticeproject.org/our-work/wjp-rule-law-index/wjp-
rule-law-index-2017%E2%80%932018 (5 September 2018).
98 J. A. Le Clercq
250
200
150
Longevity
100
50
0
0 0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9 1
-50
Rule of Law
Fig. 5.11 Constitutional Longevity and Rule of Law. Source The author with information from
the RLI and Comparative Constitutional Project. Red point locates Mexico at the chart
individuals and social groups. The Mexican case represents an exception because
the Constitution is among the ten oldest analyzed, but its performance is very
inefficient in terms of the development of the rule of law according to the RLI.
Second, a negative correlation coefficient of −0.38 is obtained when analyzing
scope and degree of rule of law (Fig. 5.12). This implies that cases with more
elements integrated into their constitution perform worse in the RLI. Again, we
must take this carefully, because the majority of cases are located in a quadrant of
medium scope and rule of law. Most of the cases of low scope tend to have medium
and high levels of rule of law. The more ambitious a constitution is and more scopes
it covers, the more complicated it is to implement its functions and turn them into
an effective coordination mechanism. They also need more fiscal resources to
generate the legal mechanisms and policies necessary to fulfill the constitutional
objectives and mandates (Holmes/Sunstein 1999). Mexico is in a position charac-
terized by the existence of a thematically ambitious constitution with very low
degrees of rule of law.
Third, we observe a negative correlation of −0.48 between longevity and the
scope and levels of rule of law (Fig. 5.13). It is possible that the oldest constitutions
tend to incorporate fewer subjects than those of recent creation; in other words,
older constitutions would maintain a minimal liberal design, and recent ones tend to
incorporate more elements because they have to respond to increasingly plural
societies during the process of constitutional creation, and therefore face greater
political and social pressures. Mexico stands out as one of the oldest constitutions
with the highest percentage of elements integrated, with the same percentage as
0.9
0.8
0.7
0.6
0.5
Scope
0.4
0.3
0.2
0.1
0
0 0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9 1
Rule of Law
Fig. 5.12 Constitutional Scope and Rule of Law. Source The author with information from RLI
and the Comparative Constitutional Project. Red point locates Mexico
250
200
150
Longevity
100
50
0
0 0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9
Scope
Fig. 5.13 Constitutional Longevity and Scope. Source The author with information from the
Comparative Constitutional Project. Red point locates Mexico
Cape Verde and Portugal (.76), and only below Egypt (.77), Ecuador (.79), Angola
(.80), and Kenya and Zimbabwe (.81) – cases with the highest scope level.
Finally, when integrating the extension of the text with the analysis, no relevant
correlation with the other variables is obtained (Figs. 5.14 and 5.15).
These charts show the relationship between different features of constitutional
change and rule of law decrees, although more comparative and qualitative research
100 J. A. Le Clercq
160000
140000
120000
100000
Length
80000
60000
40000
20000
0
0 0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9 1
Rule of Law
Fig. 5.14 Constitutional Length and Rule of Law. Source The author with information from the
RLI and the Comparative Constitutional Project. Red point locates Mexico
160000
140000
120000
100000
Length
80000
60000
40000
20000
0
0 0.1 0.2 0.3 0.4 0.5 0.6 0.7 0.8 0.9
Scope
Fig. 5.15 Constitutional Length and Scope. Source Author with information from Comparative
Constitutional Project. Red point locates Mexico
is needed. Even if factors such as longevity, scope of content, or extension can tell
us much about the difficulty of converting the dynamics of constitutional change
into an effective rule of law in Mexico, political variables such as the forms of
control, the equilibrium generated by competition and conflict, as well as the results
of partisan negotiation, become relevant as explanatory elements. In fact, political
elements are key to understanding the specific characteristics that acquire the
attributes of constitutional design as endogenous factors, for example, political
negotiation and conflict. Several authors have correctly highlighted the importance
of the national political dynamic resulting from the presidential project, partisan
competition and political agreement as the main explanatory factors of constitu-
tional change and the related problems of incoherence and weakness in ensuring
compliance. Emphasis is particularly placed on the preponderance of the
Constitution as a political rather than a judicial instrument, or the willingness of the
actors to integrate political-social aspirations into the text as part of the broader
political project (Casar/Marván 2014; Cossío 2010; Salazar 2017; Valdés Ugalde
2017; Concha 2018).
Cossío’s (2010) argument is especially relevant for understanding the way in
which conflict and political competition have determined the dynamics of consti-
tutional change, establishing a process of path dependency that made development
of rule of law almost impossible. In this interpretation, throughout Mexican history
constitutions were not understood by political actors as the set of fundamental legal
norms to regulate public life, but as instruments to make politics, exert domination,
resolve distributive conflicts, and incorporate into the text the political projects of
the triumphant sides in national conflicts.
During the post-revolutionary period that Cossío defines as the “long regime”
(2010: 50–64), which coincides with most of the Constitution’s lifespan, rather than
establishing limits to the exercise of power and the fundamental legal rule, the
Constitution’s functions became expressing the political project of the regime,
translating the political social ideology of the revolution and reflecting a popular
mandate, all interpreted through the will of the incumbent president:
(…) the Constitution did not have the character of norm, nor even of a regulatory force,
since it consisted only in identifying in a general way what the prevailing social forces at a
certain moment would have considered as politically relevant, without preventing it from
assigning other contents the same character even without being found in the text (Cossío
2010: 51).
According to Cossío, this begins to change with the political transition and the
increasing partisan competition and social plurality trend that limits the role of the
president as the main interpreter and driver of constitutional change. A democratic
context activates parliamentary debate and negotiation and transforms the way the
Supreme Court understands its function of interpreting and responding to disputes
and conflicts over the proper meaning of the Constitution. Gradually “… in a
clumsy and partial manner, it began to be understood as a legal norm, as a limit to
public actions, as a way of conducting social phenomena different from those that
had hitherto been experienced” (2010: 72). In other words, there began to be a
transition from the perception of the Constitution as a political instrument for
serving the needs of the regime towards the Constitution as a juridical instrument
focused on establishing the foundations of a democratic rule of law.
Undoubtedly, the democratic transition implies changes in the way political actors
understand the role of the Constitution and the responsibility of political institutions
to fulfill their mandates – a process that has been gradual, and in many ways
embryonic, and that has resulted both from the growing partisan competitiveness and
an increasing public influence of organized civil society. However, the
102 J. A. Le Clercq
transformation of the Constitution into a fundamental legal norm faces three prob-
lems. Firstly, the understanding of the Constitution as a mainly political instrument
and the consequent logic that requires institutional change to pass through the filter of
the constitutional reform has ceased to be a presidential monopoly in order to
diversify itself and reflect the dynamics of conflict and negotiation between the
different political parties. In other words, rather than being limited, the dispute to
incorporate its own agenda and political objectives into the Constitution now extends
to the different political forces.
Secondly, it is possible to identify a significant change in the way political actors
understand the political significance and reach of the Constitution. A large part of
the amendments made since 1997 focus on adapting the institutional framework to
respond to democratic consolidation challenges, social pluralism and the com-
plexity of international markets. However, this process is far from irreversible. The
result of the 2018 presidential election shows that political actors continue to
understand that the Constitution has as its primary function encapsulating the ideals,
objectives and aspirations of the winning groups of national political disputes.
Finally, even when development of a democratic rule of law does not depend
exclusively on constitutional coherence, a constitution that is not capable of
self-imposing its compliance cannot become an effective mechanism for the
coordination of political, economic and social interactions. The impossibility of
translating the large number of constitutional amendments into a solid foundation
for the rule of law can also be explained by the interaction of six factors:
(1) problems that arise from the design, characteristics and coherence of the re-
forms; (2) difficulties related to the implementation of the mandates through sec-
ondary legislation (Ríos/Wood 2018); (3) weak vertical and horizontal institutional
interplay, understood as a dynamic and conflictive interaction that involves insti-
tutions and actors across and between national and subnational levels; (4) inability
to convert growing number of constitutional mandates into public policy as a result
of scarce financial resources, social conflicts or governance problems; (5) consti-
tutional impunity or the lack of political will to implement the mandates derived
from the reforms both nationally and at state level (Díaz Sáenz 2017; Madrazo/
Méndez 2017);13 (6) high levels of corruption, impunity and institutional capture
that end up distorting the meaning and scope of the reforms, diminishing their
capacity to regulate political competition, social interactions and economic
exchanges (Le Clercq 2018).
13
The project Violómetro Constitucional identifies up to twenty-eight constitutional reforms in
which the Congress has not completed the corresponding adjustments to the secondary legislation.
However, this reflects only legislative omissions by the national congress; an analysis of the
breaches of mandates at state congress level would place this problem in a different dimension. See
Violómetro Constitucional, CIDE, México; at: http://periodismocide.org/eventos/violometro/.
5.6 Conclusion
The analysis of constitutional change in Mexico poses significant challenges to the

study of the development of the rule of law. The existence of an old constitution,
accepted as a legitimate basis for political agreement between political and social
actors over time, as well as an extremely flexible institution, capable of integrating
political and social transformations through its multiple amendments, does not
mean that the Constitution can become self-regulating as the coordination mecha-
nism of decentralized exchanges and interactions.
Although plural debate and negotiation have involved different political forces
and organized civil society has increased during recent decades, when almost
throughout the twentieth century constitutional change was detached from the
presidential will and party rule hegemony, the fact is that the Mexican Constitution
continues to be understood by political actors as an instrument that reflects its
political aspirations and projects rather than the fundamental legal norm. This
implies that it is not usually assumed to be the cornerstone for the development of a
democratic rule of law.
It is striking that constitutional change has become a fetish, that political actors
promote and approve amendments as part of a logic that assumes that institutional
change only occurs if it is incorporated into the constitutional text. Simultaneously,
its implementation ends up being unequal, its compliance conditioned by political
agendas, electoral times and economic interests, and its translation into new laws or
public policies dependent upon the political will of federal and state authorities.
In the first decades of the twenty-first century Mexico needs to develop a
democratic rule of law that allows effective institutional responses to public
problems, improves access to justice, guarantees public security, reduces the very
high levels of impunity, contains corruption, and protects the exercise of human
rights, all within the framework of the consolidation of a more competitive, plural
and inclusive democracy. One hundred years after its entry into force, the Mexican
Constitution is an extraordinarily complex instrument that has managed to integrate
institutional transformations, social demands and an extended system of human
rights – very ambitious aspirations accompanied by the inability of the Constitution
to impose compliance on political actors at the national and subnational levels.
The quality of the rule of law does not only depend on the characteristics of
constitutional change, but is also related to the formulation of the laws and their
content, exercise and daily respect for human rights, the design of institutions, the
independence of powers, the existence of accountability, and the culture of legality
– processes that acquire specific form and practice from the capacity of a consti-
tution to become a more effective mechanism of hierarchical coordination. In the
Mexican case, the logic that understands the Constitution as a political instrument
and the hyper-reformism that emerges from it, affecting the coherence, meaning,
and effectiveness of the text, has made it impossible to transform the Constitution
into the coordination mechanism on which the development and quality of the rule
of law partly depend.
104 J. A. Le Clercq
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Friedrich, Carl J. (1950). Constitutional Government and Democracy (Boston: Ginn and
Company).
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Amendment Cultures and the Challenges of Measuring Amendment Difficulty”, in:
Coase-Sandor Institute for Law and Economics Working Papers, No. 682 (Chicago:
University of Chicago): 1–29.
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Derechos Humanos y Violencia en México (Mexico City: CEIICH, UNAM).
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2017 (Puebla: UDLAP).
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dimensiones en México. IGI-MEX 2018 (Puebla: UDLAP).
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cumpla”, in: Esquivel, Gerardo; Ibarra, Francisco; Salazar, Pedro: Cien Ensayos para el
Centenario, Vol. 4 (Mexico City: IIJ, UNAM): 197–212.
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2017): 9–13.
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Institutional Governing Public Choice in Seventeenth-Century England”, in: The Journal of
Economic History, 49,4 (December): 803–832.
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Constitucional mexicano”, in: Serna, José María; de la Garza, Isidro: La dinámica del cambio
constitucional en México (Mexico City: IIJ, UNAM): 397–408.
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Mexico (Washington, D.C.: Wilson Center).
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Perpetuum Mobile Constitution”, in: Mexican Law Review, 9,2 (June-July): 3–27.
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Chapter 6
Security
Vidal Romero
Abstract A central task of a state is to establish order within its territory. The mere
creation of the state is justified by this statement. A proper order that allows citizens
to develop in all dimensions is based upon the rule of law. An insecure environment
(i.e. disorder) signals a weakness in the rule of law, which is further weakened as
crime and violence unfold. Mexico has been suffering an insecurity crisis since
2007 – which is not unique, or even the worst in its recent history. It is, however,
the worst insecurity crisis since the country’s democratization process began. The
combination of a deficient rule of law, an ineffective war on drugs, a fiscal system
disconnected from citizens’ preferences, and the democratization process itself, has
provided fertile ground for a dramatic increase in crime and violence. Under these
circumstances, strengthening the rule of law is paramount, yet conditions are such
that improving it will prove problematic.
! ! !
Keywords Security Violence Rule of law Mexico Fiscal disconnect war ! !
! !
on drugs Drug trafficking organizations Democratization Homicides Drug ! !
legalization
Vidal Romero is Professor at the Political Science Department at ITAM and Visiting Fellow
(2018–2021) at the Latin America and Caribbean Centre (LACC) at the London School of
Economics and Political Science. He holds a Ph.D. in Political Science from Stanford
University. He was visiting Professor at Stanford University (2012–13). Romero is Co-Director
of ITAM’s Center of Studies on Security, Intelligence, and Governance. His current research
examines the conditions under which governments can establish (democratic) order in their
territories. He has collaborated on different research projects with the World Bank, the Wilson
Center, México Evalúa, the National Endowment for Democracy, and the Inter-American
Development Bank. Email: [email protected].

https://doi.org/10.1007/978-3-030-31314-2_6
108 V. Romero
6.1 Security
The main task of any state is to impose order within its territory. Citizens delegate
the legitimate use of force to the state, as this is a cheaper solution than every
citizen, or group of citizens, attempting to impose order by themselves in a
decentralized manner. Thus, it allows citizens to use their resources in a more
productive manner (Bates 2001).
Those in power face competition for the position of provider of order (North
1981). In a democracy, different alternatives compete in free and fair elections. In
autocracies, they must find other ways to acquire power. Citizens should prefer
democratic order to autocracy since democracy it is based upon the rule of law, and
it respects individual and collective rights. It provides citizens with the assurance
that their property and rights will be protected by the state, and that those who break
the legal norms will be prosecuted under the law.
Yet, even in democracies, there are different degrees of rule of law; sometimes it
can be weak. When the rule of law is deficient – either in its definition or its
enforcement – incentives for illicit behavior tend to increase. Simultaneously, high
revenue generated by illicit behavior gives the beneficiaries of illegality incentives
to maintain, or worsen, the deficient rule of law. A vicious circle is thus created: bad
security negatively affects the rule of law, and a worsening rule of law negatively
affects security. This type of dynamic is usually hard to break.
Weingast (1997: 245) defines the rule of law as “a set of stable political rules and
rights applied to all citizens impartially”. A society based upon the rule of law
implies a state in which governments act based upon rules that are known ex ante.
Citizens can then predict that if they do A, the state will respond by doing X,
X having previously been established as a formal rule.
For instance, suppose that a citizen driving her car runs a red light and a police
officer detects it. In a place in which the rule of law works effectively, the expected
behavior of the police officer is to apply the penalty stated in a formal code. The
citizen knows that, and has incentives to behave or face further penalties. In the
opposite scenario, of a state with a deficient rule of law, there is uncertainty over
whether the police officer would impose a penalty, as stated in the formal rule, or
instead suggest a bribe as an alternate ‘solution’. Even worse, there might be
certainty that the police officer would not follow the formal norm but instead ask for
a bribe.
In a democracy, the rule of law does not just provide certainty regarding the
behavior of public officials; it also has another defining characteristic: it protects
citizens’ rights by limiting the power of the state.
Mexico is immersed in a security crisis dating back to 2007. The Mexican State
already operated within a context of a deficient rule of law. Add to this the com-
bination of a state in the process of democratic consolidation, a senseless war on
drugs, and a fiscal structure whose rules are completely disconnected from citizens’
preferences. Since 2007 these coexisting conditions have generated, among other
calamities, over 250,000 deaths, and around 30,000 missing persons.
6 Security 109
The purpose of this chapter is to analyze this nefarious ongoing episode of

Mexico’s current history and point to potential solutions, emphasizing the rela-
tionship between rule of law and insecurity as a vicious circle (as described above)
that is being maintained by this country’s institutions. In this chapter, I focus on two
of these institutions: fiscal disconnection and drugs prohibition. To do so, I first
briefly describe Mexico’s current security crisis and its noxious relationship with
the rule of law. I will then analyze three core determinants of insecurity in Mexico:
democratization, the war on drugs, and fiscal disconnection. I conclude with a
discussion on specific policies that may improve Mexico’s security conditions.
6.2 Security in Mexico
To fully understand Mexico’s current security crisis, it is important to contextualize

it in time and space. For a start, contemporary levels of homicides are not atypical
for Mexico during the last century. Current events, and the way they are reported,
tend to eclipse the fact that Mexico has always been a violent country. Figure 6.1
shows the country’s homicide rate from 1931 to 2017.
70
60
50
Homicide rate
40
30
20
10
0
1931
1933
1935
1937
1939
1941
1943
1945
1947
1949
1951
1953
1955
1957
1959
1961
1963
1965
1967
1969
1971
1973
1975
1977
1979
1981
1983
1985
1987
1989
1991
1993
1995
1997
1999
2001
2003
2005
2007
2009
2011
2013
2015
2017
Fig. 6.1 Homicide rate per 100,000 inhabitants in Mexico (1931–2017). Source Anuarios
Estadísticos de la República Mexicana and INEGI; at: https://goo.gl/uxrBXK
110 V. Romero
There are various relevant pieces of information in Fig. 6.1. First, if we look at
the period between the 1930s to the 1980s, we can observe a steady decrease in
violence which can be attributed to the formation of the Mexican state after the
Revolution. Second, even as the country was being pacified, the levels of violence
were still very high, especially compared with modern levels. This pacification
occurred concurrently with the creation of the hegemonic party which was to
dominate the Mexican government until the year 2000: the Partido Revolucionario
Institucional, or PRI. Thus, the PRI can be credited with pacifying the country, but
not with ruling a peaceful state. The so-called pax priista – i.e. the idea of a strong
autocratic state under the PRI that was able to impose order in its territory – is just a
myth that is not backed by empirical evidence.
Third, the average homicide rate in the previous decade (2008–2017) is almost
identical to the 1980s average: 19.3 and 19.2 respectively. Thus, what Mexicans are
experiencing is not new for a significant share of the population. Moreover, the
current crime rate is far lower than other violent episodes in the country’s history.
During the Independence War (1810–1821) the rate of deaths in the conflict was
around 700 per 100,000 inhabitants, during the Revolution (1910–1920) casualties
amounted to around 600 deaths per 100,000 inhabitants, and during the Cristero
War (1926–1929) the death rate was estimated at 400 deaths per 100,000 inhabi-
tants – estimated by the author using the median of deaths reported by five history
publications for each event.
Mexico is not even in the top tier of violent nations in the world. There are,
however, specific areas in Mexico in which the rule of law has collapsed at different
times in the previous decade. Specific cities within Mexico have been, or are,
amongst the most violent in the world, including Acapulco, Chilpancingo, Ciudad
Juarez, Culiacan, Los Cabos, Tijuana, and Reynosa.
I do not aim to minimize the gravity of Mexico’s current security crisis, but we
need to place it in adequate context in order to analyze it properly, and devise
feasible solutions. As I have shown above, Mexico’s current problem with violence
lies not with the levels as such, but with the abrupt change upwards that happened
as of 2008, and with the fact that the country has not been able to significantly
reduce violence for the past ten years.
Along with a significant deterioration in public security, a worrisome feature in
Mexico has been the failure to strengthen the rule of law after democratization.
Figure 6.2 shows the Rule of Law index from the Varieties of Democracy Project
from the early 1980s, when the PRI regime began losing some local elections, to
2017. The index goes from 0, low rule of law, to 1, high rule of law. The trend line
does not perfectly follow the trend in homicides, because other variables have also
had an impact, but it shows how rule of law has been systematically lower after the
2007 violent crime shock.
6 Security 111
.7
.6
Rule of Law (V-Dem)
.5
.4
.3
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
2014
2015
2016
2017
Fig. 6.2 Rule of Law in Mexico (1982–2017). Source Varieties of Democracy Project; at: https://
goo.gl/aFRRG7
6.3 Insecurity and the Rule of Law
Mexico’s (in)security circumstances are not random; they can be explained by both
structural and circumstantial factors. There is a significant body of literature
explaining the determinants of violence in Mexico. One strand of the literature has
focused on how increasing political pluralism (unwillingly) detonated violence by
weakening the monopolist structure of the Mexican State, which allowed for col-
lusion between the government and drug cartels (Osorio 2013; Ríos 2012; Dell
2015). Other works focus on the negative effects that the specific strategy of the
Mexican Government against criminal organizations has had on increasing violence
(Osorio 2011; Calderon et al. 2015; Lessing 2015; Phillips 2015).1
In these works, structural causes such as inequality and poverty are also part of
the explanation for Mexico’s levels of violence since 2007. And a variable that is
embedded in all explanations is Mexico’s deficient rule of law.
Figure 6.3 shows the relationship between rule of law (approximated by the
Rule of Law index constructed by the World Justice Project) and the homicide rate
per 100,000 inhabitants (used as a proxy for insecurity), across countries for which
data is available. The WJP index goes from 0, no rule of law, to 1, perfect rule of
1
See Zepeda Gil (2018) for an excellent analysis of the main explanations for violence in Mexico.
112 V. Romero
Fig. 6.3 Insecurity and Rule of Law. Source Homicide data is from the United Nations Office on
Drugs and Crime; at: https://goo.gl/t2pH4J. Rule of law data is from the World Justice Project; at:
https://goo.gl/BxJrTn
law, and, in the aggregate, a negative relationship with insecurity can be observed:
as rule of law worsens, the homicide rate increases. The graph is replicated without
El Salvador and Venezuela, which have extreme values on homicides, and very low
levels of rule of law.
Clearly, high homicide rates are not randomly distributed across societies. No
country in the high end of rule of law has a homicide rate above 2 per 100,000
inhabitants. Many of these are developed countries such as Japan, Norway,
Denmark, the United Kingdom or Sweden, among others. Conversely, countries
with high homicide rates are associated to low rule of law levels.
There is much more variance among countries in the middle levels of rule of law,
which points to additional variables mediating the relationship between rule of law
and insecurity.
A weak rule of law is fertile soil for criminal organizations to flourish. There are
multiple incentives for illicit behavior since the expected probability of being
caught is relatively low, given that the police are overwhelmed, incapable, and/or
corrupt. In the rare event of being caught, the likelihood of being effectively
prosecuted is extremely low. In Mexico, for instance, only 12.5% of intentional
homicides result in a guilty verdict (Zepeda Lecuona/Jiménez Rodríguez 2018).
As illicit businesses thrive and become more profitable for both criminals and
corrupt public officials, there are fewer incentives for governments to improve the
rule of law. This results in further increases in crime and, consequently, there are
even more incentives to weaken the rule of law. The sequelae of this vicious cycle
can be observed at many levels: ordinary crime such as robbery increases, the
6 Security 113
corruption of public officials expands and escalates, organized crime strengthens its
networks, and citizens become both victims and accomplices.
Note that there are societies in which insecurity does not significantly damage
the rule of law; such is the case of specific localities in the United States. There are
also countries with a weak rule of law that remain relatively secure, such as Ecuador
or Thailand. There are distinct circumstances that trigger this vicious cycle between
insecurity and a weak rule of law.
In Mexico’s case, democratization, the war on drugs, and an inefficient fiscal
structure account for a significant share of this deterioration in both security and of
the rule of law. In the following subsections, I analyze these determinants and their
effects. Note that other works in the literature, which I explicitly reference in the
following paragraphs, have explored these determinants, especially democratization
and the war on drugs; my contribution is on endogenously relating these variables
to the rule of law and, in the next section, outlining potential policy improvements.
6.3.1 Democratization
The existing literature agrees upon the ways in which democratization processes
negatively affect order (e.g. Huntington 1969; Dahl 1971; Diamond 1999). As
nations democratize, individuals and groups that were not able to demand rights and
resources from the State can now do so. These actors place strain upon the State’s
institutions, which are in charge of channeling citizen’s demands. However, state
institutions adapt at a much slower pace than people’s claims do. A more demo-
cratic rule of law may be written, yet its effective implementation may take decades,
and resources are always scarce relative to needs.
Within this context, conflict arises and, with it, multiple opportunities for
criminal activities. Moreover, when there are high revenues associated with crime,
as in the case of drug trafficking, there are incentives for actors both inside and
outside the Government to weaken the existing rule of law, and keep their illicit
business profitable. This has been the case in Mexico.
Mexico was part of a democratizing wave and, like many other nations in Latin
America, it initiated a gradual transition to democracy during the late 1980s.
Elections gradually became cleaner and more competitive. The ruling party’s
hegemonic regime slowly began losing power, until it finally lost the Presidency to
the Partido Accion Nacional (PAN) in 2000 (Magaloni 2006). Yet, as the country
democratized, Mexicans began to realize that freer elections do not solve all
problems instantly: poverty has remained high, corruption is still a serious issue,
and crime and violence have acutely worsened.
There is a significant bulk of literature explaining the recent explosion of
homicides in Mexico, and a lot of this work relates it to democratization (e.g.
Osorio 2013; Ríos 2012; Dell 2015). The road to democracy fragmented power
across different authority levels. This made it more difficult for authorities from
different political parties, and at different levels and jurisdictions, to collude. It
114 V. Romero
made it harder for public officials to credibly commit to protecting drug trafficking
organizations, and to enforce local monopolies. DTOs then had to compete directly
for control of a specific locality, detonating bloody turf wars.
Some versions of this hypothesis are based on the previously mentioned
so-called pax priista, which assumed a grand pact between the PRI regime and
criminal organizations. This theory states that in exchange for protection from the
State, criminal organizations would not fight among themselves. Yet, as shown in
the previous section, the evidence does not support this hypothesis. Figure 6.2
shows how the levels of violence were much higher during the PRI hegemonic
regime than they are nowadays.
As security worsens, the process of democratic consolidation is endogenously
complicated. One specific point of concern is public trust in government, as trust is
a key variable to consolidate the democratic regime. Insecurity erodes public trust
in many dimensions (Romero et al. 2015 and 2016). Crime victimization negatively
affects citizens’ satisfaction with the workings of democracy, although fortunately it
does not affect support for democracy itself as a form of government (Fernandez/
Kuenzi 2010; Ceobanu et al. 2010).
Public trust is also a necessary condition for success in fighting criminal orga-
nizations (Magaloni et al. 2018). More directly related to security organizations, there
is strong evidence linking victimization to a decrease of public trust in the police
(Pérez 2003; Ahmad et al. 2011; Blanco 2013). This creates a sort of self-fulfilling
prophecy. A citizen is a victim of a crime, thus decreasing trust in the police;
decreased trust further complicates the police’s ability to do their job, since citizens
stop cooperating with the forces of law and order; crime increases, reinforcing and
increasing citizens’ negative evaluation of the police, and the cycle goes on.
Negative trust in government is reflected in the reporting (or not) of crimes. In
Mexico, only 6.4% of crimes were reported to authorities in 2016, the most recent
year for which there is data in the National Victimization Survey (ENVIPE).2 The
figure is even more alarming with regard to specific crimes such as kidnapping,
which is only reported in 2% of cases.
This is a serious issue during a process of democratic consolidation. When
security worsens, citizens tend to favor combating crime with heavy-handed poli-
cies (Holland 2013; Krause 2014). This can entail serious setbacks to democrati-
zation and the rule of law.
2
Available at: https://goo.gl/YM2qJY.
6 Security 115
6.3.2 War on Drugs
In Mexico, and in many other countries, the fight against drug trafficking organi-
zations is a key variable which simultaneously increases insecurity and damages the
existing rule of law (Valdés 2013; Enciso 2015).
Prohibiting the commerce of goods with an inelastic demand3 creates black
markets with high profit margins. Thus, enforcing such prohibitions usually fails,
and at a very high cost. Such has been the case with alcohol in the 1920s in the
United States (Thornton 1991; Miron/Zwiebel 1995), and with the current war on
drugs that is being fought by different degrees in many countries around the world
(Quah et al. 2014). There are exceptions of drug prohibitions which have not
generated black markets and increased crime, but these are restricted to hard
autocratic regimes that harshly enforce the prohibition, such as in Afghanistan
under the Taliban regime.
For Mexico, there is solid evidence that the government’s attempts to enforce the
drug prohibition by indiscriminately confronting all drug cartels and targeting their
leaders has led to a significant increase in violence and crime (Osorio 2011; Lessing
2015). Regarding criminal organizations, or their leaders, as the enemies of the
State does not solve the problem, since, in fact, the enemy is a market. Markets are
not fixed by attempting to prohibit their existence; they are fixed by regulating
them.
Directly fighting Drug Trafficking Organizations (DTOs) places the State, and
especially a relatively weak state as the Mexican one is, in a vulnerable position.
A weak state can be further debilitated not only by corruption, but also by a lack of
public support because of poor performance.
Trafficking in illicit drugs is a business that is not labor-intensive. It is, however,
intensive in contacts and information, especially in contacts with public officials. It
takes but a few people to transport and smuggle illicit drugs, but you need the right
connections to be successful. From a business viewpoint, having a close agent, or
even someone from a DTO’s own ranks governing a locality (or even a country),
saves on transaction costs. Clearly, this setting incentivizes corruption, and opens
the door for state capture by DTOs.
If DTOs expand their operations to act as retailers as well, the business model
changes. It requires more labor, and also more connections with public officials.
Things now become much more complicated for the State, since not only does it
require more resources to fight criminal organizations, but there are many more
public officials exposed to corruption, and DTOs conduct other illicit business as
complements.
This seems to have been the case in Mexico. Criminal organizations were mostly
occupied with trafficking illicit drugs produced in Mexico (mainly marijuana) or
3
An inelastic demand is one in which a change in price will have a smaller than proportional effect
upon the quantity demanded. If demand is perfectly inelastic, a change in price will have no effect
whatsoever upon the quantity sought.
116 V. Romero
imported from South America (cocaine) and, to a lesser degree, from China (am-
phetamines). These would then predominantly flow into the United States market,
to be retailed there. This circumstance changed in the mid-2000s. Mexican DTOs
expanded their retail operations into Mexican cities, and diversified their activities
to other crimes, such as extortion and kidnapping.
Some explanations for this phenomenon point to a change in the way that buyers
in the United States paid DTOs. Payments that used to be cash only switched to part
cash and part illicit drugs (Poiré 2011). This change induced Mexican cartels to hire
more workers to sell the part payment in drugs in Mexico’s main cities, where the
demand is. It significantly increased the size of DTOs, which meant a more
expensive payroll.
To take advantage of a bigger workforce, and the bribes to public officials
(which are a sort of sunken cost), a natural step was to diversify into other illicit
activities. This in turn required bribes to further authorities, specifically at the
municipal level: those who oversee the local streets. Rule of law further deteriorated
as corruption reached deeper and deeper into government structures, at all levels.
It is clear now that the war on drugs has failed, not only in Mexico, but around
the world. It has not achieved its initial goal of keeping illicit drugs away from
consumers, making countries safer or cleaning police forces. On the contrary, things
have seriously worsened.
6.4 Fiscal Disconnect
A third ingredient deteriorating both security and the rule of law in Mexico is the
existing disconnect between the authority collecting taxes, and the authority
spending public monies. This divergence generates incentives for the misallocation
of resources – corruption and pork projects mainly – that affect the incentives and
capabilities of local governments to fight crime effectively.
To the degree that citizens are not able to estimate how their share of the taxes
they pay is linked to public spending, public officials become relatively unac-
countable. Citizens mostly look at public spending and are unable to connect it to
their tax payments; governments have incentives to invest in projects which are
politically profitable, but not necessarily efficient. There is evidence to show that
this disconnect between central tax collection and local spending creates perverse
incentives for both inefficient spending and corruption (Weingast et al. 1981;
Díaz-Cayeros et al. 2010; Romero 2015).
In Mexico, around 86% of the public funds spent by subnational governments
are collected by the central government (Herrera González et al. 2017). Funds flow
outwards from the center, and officials at all the different subunits (state and
municipal) are faced with this peculiar incentive to undertake as many projects as
they can with money that is transferred by the central government. Thus, the
aggregate spending of the country is bigger than it should be and it would tend to be
inefficiently spent.
6 Security 117
The 86% proportion is replicated in security spending, creating multiple wrong

incentives for efficacy and efficiency in security policy-making, and deteriorating
the existing rule of law.
In this context, the divergence of interests between national and subnational
authorities regarding public security policies complicates effective crime-fighting.
Let us assume that in a democracy, policy preferences are, at least partially,
determined by citizens’ demands. Thus, we can plausibly assume that public offi-
cials at the municipal level would follow the preferences of local citizens, who
would rather invest public monies in fighting ordinary crime (e.g. thefts, break-ins
or simple assaults) than crime related to DTOs. It is precisely their jurisdiction, and
just by the incidence of each type of crime, that this should be the case: in 2017 the
robbery rate was around 20,000 per 100,000 inhabitants,4 whereas the homicide
rate was 25 per 100,000 inhabitants.5
However, federal authorities clearly prefer fighting organized crime related to
illicit drugs. This tier of government is formally in charge of this type of crime, and
it is the one facing pressure from the United States government and other inter-
national organizations to do so.
Since, as stated, 86% of security funds spent by local governments in Mexico
come from federal monies, the federal government has multiple tools to induce
local governments to spend much of their funding fighting organized crime and
drug-related crimes. And because resources are scarce, every peso spent on cap-
turing a small drug dealer implies a peso not spent on other more pressing crimes,
such as robbery.
Further compounding the problem is the fact that local police corporations are
the ones fighting DTOs, making public posts at local level quite attractive to
criminal organizations. This has placed local governments in a vulnerable situation,
opening opportunities for corruption and local government capture by drug traf-
fickers. Thus, rule of law has further weakened at the local level.
In the 2018 Mexican elections, more than a hundred candidates and public
officials were assassinated during the political campaigns.6 It is very likely the
murdered politicians were inconvenient to drug trafficking organizations wanting to
keep or gain power in a particular municipality.
Local governments just do not have the right incentives to fight DTOs, and they
should not do it, if we consider constituents’ preferences. Money laundering
illustrates this issue well. Romero (2017) explains how, regarding money laun-
dering, the divergence in interests between local and federal governments results in
poor local government performance, and an explosion in homicides as a negative
4
Data from to the National Survey on Victimization and Security Perception (ENVIPE). Available
at: https://goo.gl/htQTuy.
5
Data from INEGI. Available at: https://goo.gl/uxrBXK.
6
As reported by Etellekt Consulting to CNN in Spanish https://goo.gl/Ki7J3p. Other media outlets
have reported similar figures.
118 V. Romero
externality. The study shows that atypical increases in local economic activity result
in a significant increase in homicides three years afterwards, on average.
The explanation runs as follows: suppose a criminal organization decides to
launder money at a given locality. Local governments are the best equipped to
detect it as they have more information on who is who, and what businesses they
are up to. However, they also have incentives not to denounce it because the
laundering operation also implies more local jobs, more local taxes, and more
money flowing into the pockets of compliant local officials. On the other hand, the
federal government is formally in charge of fighting money laundering, but does not
have details of local economic activity, relying instead on tax returns and formal
financial statements to detect illicit operations. Local economic bonanzas create
incentives for other criminal organizations to enter the same locality, creating turf
wars that increase violence.
In a nutshell, Mexico’s fiscal institutional setting deters local governments from
fighting the crime that citizens most care about, and fighting organized crime by
local police has proven ineffective, contributing to corruption within this most basic
tier of government. Thus, most efforts by the national government to induce local
governments to fight organized crime would prove ineffective.
6.5 Improving Security and the Rule of Law
In this chapter, I have analyzed Mexico’s security conditions and its rule of law.
I have discussed the current nature of the relationship between these two variables
as a vicious circle in which weak rule of law leads to insecurity, and insecurity
engenders further deterioration of the rule of law.
Looking at the cases of developed countries, two points become clear: first,
improving public security takes time and, second, the level of crime and violence in
any given society is not random. As long as the underlying conditions incentivize
criminal behavior, insecurity will be the outcome.
The challenge Mexico faces is to design and enforce a set of institutions that
creates the right incentives for individuals and officials to behave in accordance
with the rule of law. Two significant institutional changes are necessary in Mexico
for the security situation to improve: legalizing and regulating all drugs that are now
illicit, and fixing the fiscal disconnect.
Regarding legalization, we must begin by recognizing that the magnitude of the
problem is much bigger than the available resources that the Mexican State pos-
sesses to fight it. Even if the State had such resources, it would be socially inef-
ficient to spend them on this issue.
For Mexico, a potential solution is to shrink the problem to a manageable size,
given the existing resources. Legalizing and regulating the whole market for drugs
that are now illicit would achieve this. A regulated market for drugs creates fewer
incentives for corruption and violence. It would also free many resources that can
be utilized to fight the crimes that truly hurt society, such as robbery, kidnapping
6 Security 119
and extortion, thus creating a more adequate alignment between citizens’ prefer-
ences and public policies.
Legalizing and regulating will not magically fix violence or corruption, but it
will shrink the size of the problem, making it more solvable. Enforcement of a
regulated market would, of course, be an issue, given the weakness of the Mexican
State, yet market mechanisms would kick in to help. Additionally, it is much
cheaper, and much less violent, to enforce regulation than to fight the production,
transportation and commerce of illicit drugs in a country of Mexico’s size and
complicated geography.
Note, however, that how illicit drugs are legalized is not straightforward (LSE
Ideas 2014; LSE Ideas 2016; Global Commission on Drug Policy 2018), and fully
discussing it would require more space than is available in this chapter. However, it
is worth including here a few relevant points that would frame this issue and that
have been analyzed in multiple other works. First, there is no conclusive evidence
that legalizing drugs would increase their consumption (Eastwood 2016; Global
Commission on Drug Policy 2018). Second, drugs legalization may generate sig-
nificant spillovers (UNODC 2015), which could be invested in other topics that are
more socially beneficial. And, third, there are strong actors against legalization,
most notably the United States (Enciso 2015; Valdes Castellanos 2013) and dif-
ferent international organizations (McAllister 2012).
Regarding the fiscal disconnect: fixing Mexico’s fiscal structure is a necessary
change which would also contribute towards improving security and the rule of law.
To the degree that municipalities collect a higher share of what they spend, they
become more accountable to their citizens. This would induce governments to spend
more on what citizens actually prefer to fight, which is ordinary crime, not DTOs.
Both institutional changes, unfortunately, seem unlikely in the short-term. As is
common in many other policy areas, many of those with the formal power to
change the status quo are also those with the greatest interest in maintaining it.
Despite the preferences of Mexican politicians, who may agree or not with drug
legalization, the Mexican government faces strong pressure from the United States’
federal government to keep things as they are now.
As I have pointed out in this paper, we are trapped in a vicious cycle. The
obvious question regarding a vicious cycle is where and how we start to break it. In
the relationship between insecurity and a deficient rule of law, it is not trivial to
assess whether we should first combat insecurity, strengthen the rule of law, or
tackle both simultaneously.
Solving this type of problem sometimes requires some sort of shock. It may be a
shock endogenous to the issue. For instance, the fight against kidnapping in the
United States was significantly propelled by the infamous case of the Lindbergh
baby, and the tightening of airport security was only implemented after the 9/11
tragedy in New York.
Alternatively, it could be an exogenous shock, such as a government change.
Democracy provides this opportunity periodically (in the case of Mexico, every six
years). It may create a sort of focal point that allows citizen coordination to demand
120 V. Romero
policy solutions (Weingast 1997). New governments are windows of opportunity

for significant policy changes. In this alternative, public opinion is the force behind
politicians’ incentives to change the status quo.
Regretfully, new federal administrations in Mexico have not historically sought
to implement fresh alternatives. Instead, they have implemented traditional punitive
approaches that implicitly assume that the solution to violence is to combat it with
sheer physical force. It is presumed that somewhere in the policy universe there is
an alternative in which a large enough number of police officials, or of weaponry, or
display of brute force, would solve the problem. But the evidence has clearly shown
that this is not the case. This chapter outlines two possible policy choices to break
the vicious cycle of violence Mexico finds itself in, and to help build the rule of law
it so desperately needs.
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Chapter 7
Human Rights and Unreliable
Institutions in a Globalized World:
The Case of Irregular Migrants
in Mexico
Mauricio Olivares-Méndez and Radu-Mihai Triculescu
Abstract State sovereignty, it has been argued, is starting to be found more and
more in a multiplicity of arenas, but the State no longer plays the only role in the
reallocation of this sovereignty. Globalization has pushed states to accept giving up
some powers, and it seems that as a result they strongly assert others that are mostly
uncontested. Immigration law seems to have become the last bastion of a state’s
ability to unilaterally impose its sovereign powers, this much more so when it
comes to its response to irregular migration. The dynamic between the forces of
globalization and the reaction of the State to those forces pushes irregular migrants
into a grey area where their claim to fundamental rights is not met with the proper
protections expected from a state with a strong rule of law. Mexico, as this book has
made clear, faces significant challenges in rethinking and rebuilding its relationship
with citizens and non-citizens alike. Shining a light on the experiences of the latter
group is a key aspect of designing a better institutional framework that guarantees
the access and protection of human rights. This chapter provides a review of the
interlinked understandings of sovereignty, globalization and the rule of law, then
uses data collected through the Documentation Network of Migrant Advocacy
Organizations (REDODEM) and other civil society organizations to illustrate the
difficulties migrants encounter in their transit and stay in Mexico, and ends with a
series of reflections for the long journey ahead.
Keywords Rule of law ! Sovereignty ! Globalization ! Irregular migration !

Human rights
M. Olivares-Méndez, Universidad Autónoma de Querétaro, Querétaro, Mexico. Email:

[email protected]; R. M. Triculescu, Early Stage Researcher under the Marie
Skłodowska-Curie actions, Horizon 2020 of the E.U., University of Twente, Enschede, The
Netherlands. Email: [email protected].

https://doi.org/10.1007/978-3-030-31314-2_7
124 M. Olivares-Méndez and R.-M. Triculescu
Understanding the state of human rights protections in Mexico cannot be done

independently of the effectiveness of the country’s rule of law apparatus. As May
argues, “human rights cannot be operationalized outside of the context of a func-
tioning state that establishes and enforces a rule of law that is based on a certain set
of universal principles” (2007: 9). The institutional strength needed to achieve an
effective rule of law can be challenged and undermined by the forces of global-
ization and the State’s response to these forces.
The following chapter will attempt to bring these concepts together by exploring
the links that exist between human rights, globalization, and state sovereignty.
Specifically, by analyzing reports and analysis of non-governmental organizations
working on the ground in Mexico, we will argue that the reaction of the Mexican
State to globalization has led it to assert its sovereignty in the field of border
protection in a way that leaves irregular migrants at great risk of suffering violations
of their basic human rights. By analyzing how rule of law in the area of migration is
caught at the intersection of sovereignty and globalization, and how this dynamic
pushes irregular migrants into a grey area where their claim to fundamental rights is
not met with the proper protections expected from a state with a strong rule of law,
this chapter will offer an understanding of the plight that this vulnerable group
faces.
This chapter is organized as follows: in the first two sections, the dynamic
between sovereignty, globalization and rule of law will be analyzed based on
existing literature. Section 7.3 will then offer some conclusions regarding what this
means specifically when it comes to policies regulating irregular migration.
Section 7.4 will explore human rights protections specifically in the Mexican
context, while Sect. 7.5 will analyze the data provided by NGOs that work directly
with irregular migrants in the country. Lastly, there will be a discussion of the
current state of affairs in the context of a push for more and better governance,
paving a way forward to secure human rights protections in Mexico.
7.1 Sovereignty and Globalization: Zero-sum

or Complementary?
There is little to argue against the forces of globalization and their effect on national
political landscapes. Whether it is in economic policies, defense spending, educa-
tion standards, or any number of other policy areas, globalization has deeply
affected a state’s ability to retain full control over decision-making processes. This
is not something happening overnight, and neither is it something that has caught
states by surprise. Be it forces that have pushed a government to adopt certain
macroeconomic measures, or alliances that have pushed defense institutions to
behave in certain ways, states that take part in the current international order
generally gain as much, if not more, than they pay into this regime. Despite this,
however, there is little argument over the fact that trends in globalization have
7 Human Rights and Unreliable Institutions in a Globalized … 125
drastically changed the way sovereignty has come to be understood, defined, or

conceptualized.
Initially, sovereignty was intricately linked to the territoriality of state. Be it a
democratic claim to legitimacy to rule over said territory, or a more violent rep-
resentation of the responsibility to defend it, sovereignty was imbedded with a
geographic characteristic that made the concept, if not tangible, at least pinned to a
physical location. The sovereignty of a state could be defined based on cartographic
characteristics (Sassen 1996). It is on the basis of these definitions that, once
globalization became not just a topic for discussion but a reality of the international
order, the perceived conflict between international and national political forces
could be rationalized as a zero-sum game: if decision-making powers now tran-
scend national borders, sovereignty would stand to lose. Based on all expatiations,
the power of the State to regulate and enforce policy should diminish.
It should be noted that the association between sovereignty and territory is not
one without its critics. States, these critics will argue, never actually exerted full
autonomy over their territories, thus meaning that globalization is not eroding
sovereignty, but rather adding a new layer of complexity to it (Agnew 2009).
Sovereignty, Agnew argues, is not fundamentally being altered by its unmooring
from territorial ties, because such ties were never rigid to begin with. Even if this is
the case, however, the fact is that the forces of globalization are changing the way
we think about the State’s ability to exercise its power in different fields.
Agnew could very well be right in his assertion, and it is not the intention of this
work to challenge his claim. But in practice, governments behaved throughout the
twentieth century in ways that put the (territorial) state at the center. “Political
geographers believe that power is firmly rooted in the physical nature of the world
itself” (Parker 1985). Even if governments have never exerted full control over their
territory, this has always been taken as a metric of political strength and
sovereignty.
So the question is: where does this leave the discussion on sovereignty today?
Even those who, like Agnew, challenge the original conceptualization of the term,
cannot deny that critical shifts are taking place in our thinking about sovereignty,
from both an academic perspective and a practical one (Beeson 2003). Firstly, as
part of the process of being shaped by globalization, the international system is
moving toward a world polity of shared norms and models. Without any state that
controls this system, we can imagine certain national (or corporate) interests being
reflected, but no one establishing authority over these, and they are very much
organic. As climate change becomes an issue of concern, for example, these con-
cerns are challenged toward the building of common models, but not over the
creation of a bureaucratic authority to oversee these (Meyer 2000). It is the same
thought that Cohen (2012) promotes: the move toward a world governed with
nobody ruling. While globalization, therefore, may not be the source of national
policies, it surely shapes how those policies are created. At the very least, a cur-
tailment of powers exists (Dale 1999: 2).
7.2 Sovereignty and Rule of Law in an Interconnected

World
So far, globalization has been largely treated as an economic issue, with its impact
being measured in terms of trade, investment, treaties, etc. Blanton/Blanton (2016)
prove that this approach is incomplete by showing the multifaceted effects of
globalization in the area of labor rights, a field which, at first glance, seems
overwhelmingly economics-centered, and by showing the effects of globalization in
political and social dimensions of this issue as well. Explorations of the effects of
globalization, as they point out, must go beyond economics. Rule of law and the
equality of government resulting from the pressures applied by globalization have
tremendous societal impact that cannot always be measured through the use of
economic indicators (Khan 2016).
Rule of law, in particular, can be greatly impacted by the international forces that
promote globalization worldwide. But what exactly does one mean by “rule of
law”, and what is there about this definition that would make it malleable by
international (f)actors? Indeed, pinpointing exactly what is meant by “rule of law”
can be difficult, especially when considering the saturation of the concept in public
and academic discourse (Stein 2009: 296). Nevertheless, it is precisely because of
this (some would say) overuse of the term that defining it is crucial. Stein (2009)
claims that the best way to address it is through a definition which encompasses the
idea that, first and foremost, the law must be above all members of society,
including those who hold political power. This means that, in the old cliché often
cited on television and in movies, no one can be above the law. Secondly, the law
must be stable, predictable and known. In other words, similar situations under the
law must yield similar results, and legal principles must be applied in a
non-arbitrary fashion. Lastly, members of society must have the right to participate
in creating and revisiting laws, legal frameworks must protect human rights and
dignity, and judicial power must be completely independent from any branches of
power. For there to be adequate rule of law the process of developing and enforcing
laws must be sufficiently strong to ensure complete independence and accessibility
to all members of society (2009: 302).
The general tenets of this definition, it needs to be pointed out, make rule of law
susceptible to the forces of globalization. Undeniably, the law must be superior to
all members of society, regardless of positions, but can it be above an international
system that governs, but does not have a ruler? Laws, according to the above
definition, cannot be subordinated to any ruling power. How, then, can the inde-
pendence from a ruler-less institution be assessed? Similarly, if the norms and
ideologies that dictate the values that drive the forces of globalization are organic,
and the issues of concern are constantly shifting, the predictability of the applica-
bility of rule of law cannot be claimed. This, of course, leads itself to a flexibility of
rule of law in the age of globalization. This is not to say that the latter renders the
former powerless, but rather that the aspect of predictability, stability, and rigidity
of rule of law are no longer a given. In other words, the challenges that
globalization poses to state sovereignty have a direct effect on how rule of law is not
only conceptually interpreted, but also how it is applied in practice. Given the
multiplicity of arenas in which these terms interact, it stands to reason that different
policy areas within a state will be affected differently by these disputations.
Sovereignty, then, can no longer be considered to be unconditional because, in a
globalized system, states cannot be treated as possessors of any intrinsic value.
Their worth comes from the ability to protect and benefit the individuals within, and
these standards of protection are defined internationally (Nijman/Werner 2013;
Dunoff 2013). In other words, sovereignty cannot exist just for the sake of sover-
eignty. The paradox, however, is that the international governance structures that
define the standards of protection are not able in themselves to create binding laws.
Ultimately, it is a state’s ability to enforce its rule of law that defines how well it
carries out the tasks of protecting those within. The following section will focus on
one specific aspect within rule of law, namely the regulation of irregular migration.
In this area, the argument will be made, states are making a strong stand on
sovereignty, as a show of force against all other powers lost to the forces of
globalization.
7.3 Irregular Migration: The Last Bastion of State

Sovereignty
The regulation of migratory flows provides an image of the tug-of-war between

traditional state sovereignty and the effects that globalization has on this. Migration,
by definition, is bound to geography: the relocation from one physical location to
another. Regulating this movement, therefore, fits well into the paradigm of
sovereignty that defines it as the State’s ability to protect and manage the territorial
integrity of its territory. On the other hand, the movement of people and capital
across borders is a staple of globalization “as it cannot be managed unilaterally by
national policies” (Crépeau/Atak 2006: 114). While regulating movements across
borders is a signal of traditional sovereignty, the existence of those very movements
is indicative of forces of globalization at work.
Irregular migration, however, falls slightly outside this paradigm. It does so, in
fact, in such a way that the regulation of this particular type of movement has been
branded, much more than any other form of migration, the last bastion of state
sovereignty (Dauvergne 2004: 600). The argument in this case can be quite
clear-cut: irregular migrants intrinsically undermine the power of the State to
control its border, therefore providing incentives for a fierce crack-down. While
legal mechanisms are influenced by globalization, irregular migrants can be easily
categorized as ‘illegal’, and placed in an us-vs-them narrative which, in turn, allows
the state to reassert its nationhood – in essence, they provide the tool necessary for
establishing complete sovereignty in an age when such opportunities are less and
less frequent.
Dauvergne (2004) further makes the argument that by creating this framework,
essentially one where this category of immigrant is placed outside the scope of the
law, justifications exist for not giving them the benefits of human rights and/or due
process, benefits that international institutions are trying to ensure that all people
have access to. Otherwise put, irregular immigrants, serving as a great tool for
asserting full sovereignty by the State, have no recourse for claiming the rights
which they would otherwise be granted if not for the label of ‘illegal’. Even in
countries such as Mexico, as we will see below, where the Constitution explicitly
states that the rights granted are meant for everyone, not just citizens, this group is
constantly left at the periphery of rule of law mechanisms that should grant them
said rights.
Returning to the discussion regarding the principle of rule of law “the core of the
existing principle is that all persons and authorities within the state, whether public
or private, should be bound by and entitled to the benefit of laws publicly and
prospectively promulgated and publicly administered in the courts” (Bingham
2007: 69). There is little doubt that migration law has, from an international per-
spective, entered the stage of being part of the concept of rule of law (Foster 2015).
What, then, can be deduced from any country where the laws applied to a certain
group, regardless of their status, do not meet the standards for benefits granted
generally? Furthermore, what can be said of states which purposely curtail benefits
available through the law to a certain group? A vicious circle of deficiency seems to
be created, where a weak application in the rule of law creates uneven distribution
of benefits in the area of irregular migration, which in turn feeds back into per-
petuating the weak application of rule of law.1
The globalization of standards for human rights and procedures for dealing with
vulnerable people seem to hit an impasse when these applications reach a state’s
determination to reassert its sovereignty where this can still be done. Through the
construction of illegality, irregular migrants are being kept outside the range of
responsibilities that a state has in ensuring equal protection under the law, in
conformity with the demands of international institutions. The grey area in which
these people find themselves, therefore, leaves them vulnerable to a vast number of
abuses, many of which are well documented and publicized. While, as argued
earlier, international migration law (and therefore national transposition) is clearly
part of the system of rule of law, the only conclusion can be drawn is that in some
aspects rule of law falls short. The case of Mexico, detailed below, shows how this
can be the case, and how irregular migrants here have been subject to conditions
that would not be accepted by any other group under the standards and require-
ments of human rights protection and promotion of human dignity.
1
This is not to say that irregular migrants are the only victims of weak rule of law application in
Mexico. According to the World Justice Project Rule of Law Index (2018), Mexico is ranked 92nd
out of 113 countries in terms of rule of law application. The country scores below average in all
categories, including security, fundamental rights, and criminal justice.
7.4 Human Rights in Mexico: Between Innovation

and Contradiction
For over a quarter of a century, Mexico’s legal system has gone through an
extensive process of reform that has touched almost every corner of the judiciary in
search of improvements to the country’s rule of law (Narváez Medécigo 2015).
During the first semester of 2011, the Mexican Congress enacted a constitutional
reform that would alter how citizens and non-citizens could demand their rights and
how decision-makers should design law and policy for the benefit of all. As Andrea
Pozas-Loyo and Julio Ríos Figueroa explain, “the first reform transforme[d] the
catalogue of justiciable rights” (2017: 32), changing the name of Title One of the
constitution from “Individual Guarantees” to “Human Rights and their guarantees”,
equating the language – and, with it, the meaning – of those rights recognized by
the Constitution to the one used in the literature and international system of
protections.
Along with the change in language, an amendment to Article 1 gave constitu-
tional rank to the international treaties and conventions signed by Mexico, making
the rights recognized in them as exigible as any other that appears in the
Constitution and, with this, giving the judiciary a significant new arsenal for its
rulings (Ginsburg 2017: 4). Furthermore, the human rights principle of pro per-
sonae made clear that in any given case the judicial interpretation that better pro-
tects the person is the one that ought to be used. The first two paragraphs read as
follows:
In the United Mexican States, all individuals shall be entitled to the Human Rights granted
by this Constitution and the international treaties signed by the Mexican State, as well as to
the guarantees for the protection of these rights. Such Human Rights shall not be restricted
or suspended, except for the cases and under the conditions established by this Constitution
itself.
The provisions relating to human rights shall be interpreted according to this Constitution
and the international treaties on the subject, working in favor of the broader protection of
people at all times.
In 2013, however, the Mexican Supreme Court of Justice (MSCJ) struck a blow
to the pro personae principle. In a ten-to-one decision, the MSCJ ruled that
international treaties would apply to any case wherein that rule provided an ampler
protection to the claimant unless it contradicts any specific exception contained in
the Constitution itself.2 This ruling – we posit in agreement with dissenting justice,
Cossío Díaz – violates the principle pro personae itself, effectively producing a
2
Mexican Supreme Court of Justice, 2011: Contradicción de Tesis 293/2011; at: http://www2.scjn.
gob.mx/asuntosrelevantes/pagina/seguimientoasuntosrelevantespub.aspx?id=
129659&seguimientoid=556.
hierarchical relation between the human rights of constitutional origin and those of
conventional origin.3
With this caveat, it is well understood that since the Constitution states that ‘all
individuals shall be entitled to […] Human Rights’ whether those come from the
Constitution or international treaties, the protection of rights also extend to all
non-citizens in the country.4 The right to freedom of expression, the right to live
free from discrimination or to choose one’s religion, among many others, are
protected by the law.
According to the Migration Act of 2011,5 regardless of their migratory status,
migrants have the right to seek medical attention and to receive an education6; the
right to access justice and due process; the right to denounce the infringement of
their rights; the right to receive information about their rights and obligations, the
requisites for admission, permanence and exit from the country, and the possibility
of seeking asylum; and the right to complementary protection or the recognition of
their statelessness. The Act recognizes the inalienable rights at the same time that it
defines the sanctions on officials and citizens who endanger the migrant’s stay or
transit through the country.
So far it seems that the ‘Human Rights Reform’ of 2011 and the cascade of
amendments to other acts and provisions not only gave the judiciary a new set of
tools to judge cases with a human rights perspective, but also empowered citizens
and organizations to demand the protection of the State through writs of amparo
founded upon international instruments. The first article continues:
All authorities, in their areas of competence, are obliged to promote, respect, protect and
guarantee Human Rights, in accordance with the principles of universality, interdepen-
dence, indivisibility and progressiveness. As a consequence, the State must prevent,
investigate, penalize and rectify violations to Human Rights, according to the law.
3
The importance of this opinion is that, on interpretation, a judge may find that a person –
especially one belonging to a group in a situation of vulnerability – falls within one of the
constitutional exceptions, preventing them from receiving the protection of international instru-
ments and curtailing their right to access justice.
4
This interpretation was added in the same amendment process to the article that defines who is a
foreign national, the controversial Article 33. This article has been the basis for extra-judicial
detentions and deportations since its origins in Mexico’s post-revolutionary panic and xenophobia.
It says in its third paragraph: “Foreigners may not in any way participate in the political affairs of
the country”, causing a sense of alienation and uncertainty in some migrants. For a detailed
historical study on this matter, see Yankelevich (2011).
5
Before 2011, Mexico didn’t have a Migration Law but had migratory dispositions within the
General Population Law of 1974 whereby entering and leaving the country without proper doc-
umentation was considered a felony. The 2008 reform to this statute made it possible to treat
irregular migration as a misdemeanor.
6
On the right to a free education the Mexican government has published the “Standards of School
Control related to Registration, Re-enrollment, Accreditation, Promotion, Regularization and
Certification in Basic Education” that define the procedures for the incorporation of migrant
children and teenagers into the national school system regardless of their migratory status.
The reform and the new Migration Act have been undeniable steps forward in
developing a solid framework that would assure migrants’ rights and the effective
prosecution of those who infringe them regardless of their immigration status.7
However, as is the case with other laws and regulations in states with weak insti-
tutional capacities, the spirit of the reform hasn’t been properly translated into
action by government officials, nor has there been proper allocation of training and
resources for those officials’ sanctioned activities. Furthermore, the judiciary has to
undertake more discussions to scrutinise the constitutional implications of the rights
approach of the first title when the enjoyment and access to those rights is regulated
by the Migration Act without giving sufficient clarity on the government’s motives
for exceptions beyond national security and, of course, the preservation of the
State’s sovereignty.8
In 2015 the Auditoría Superior de la Federación (Superior Audit Office) carried
out a performance audit of the National Institute of Migration (abbreviated to INM
in Spanish), the institute in charge of the implementation of most of the policies
whose origins lie in the Migration Act. This audit produced a scathing report that
was clear on the fact that the deficiencies identified in the processes of regulation,
control, verification, surveillance and protection, coupled with the lack of action
protocols for the operation of processes to manage the regular and irregular
migratory flows, place foreigners who enter, transit, remain or intend to leave the
national territory in a situation of vulnerability, and put their human rights at risk,
regardless of their immigration status.9
It seems that after the implementation of what was called ‘Programa Frontera
Sur’ (Southern Border Program), the tasks of the Institute revolved around security
and the management of migration flows other than promoting and protecting
migrants’ rights. This program was set in motion after the government of the United
States transferred resources under the Merida Initiative to Mexico for it to fortify its
own southern border due to the number of Central American migrants reaching the
US-Mexico border, especially unaccompanied migrant children. This, advocates
argue, accelerated a process of externalization of the US southern border to
Mexico’s southern border. The press release from the Mexican Executive stated that
the program had the purpose of protecting and safeguarding the human rights of
7
In addition to these changes, other advancements were possible due to the publication of the Law
on Refugees and Complementary Protection (2011), the General Law to prevent, sanction and
eradicate crimes related to trafficking in persons and for the protection and assistance of victims of
these crimes (2012), the General Law on the rights of children and adolescents (2014), and the
creation of the Investigation Unit for Crimes Against Migrants (2015) (Claderón Chelius 2012).
8
For an in-depth review on the constitutionality of the Migration Act see Castilla Juárez (2014).
9
Auditoría Superior de la Federación (2014) Auditoría de Desempeño: 14-0-04K00-07-0060; at:
https://www.asf.gob.mx/Trans/Informes/IR2014i/Documentos/Auditorias/2014_0060_a.pdf.
migrants who enter and transit through Mexico, and of ordering the international
crossing points to shore up development and security in the region.10
Tellingly, a little over a year later, the Undersecretary of Population, Migration
and Religious Affairs, Humberto Roque Villanueva, stated that the subject was
being carefully handled and the expected results were being reached to the extent
that migrants were not getting through, achieving a containment effect.11 In that
same interview, the Undersecretary made clear that one of the things he regarded as
positive was that the United States government wouldn’t put so much pressure on
Mexico due to the reduction in the number of Central American migrants reaching
the US.12 This illustrates clearly how the international dynamics of globalization
and securitization shape the national ‘politics of policy-making’.
Pillar Three of the Merida Initiative provided funds for what was labeled a “21st
century border”. Over 2.5 billion US dollars have been allocated to the program,
which focuses on preventing ‘spill-overs’ of organized crime by securing the border
through investments in infrastructure and the training of Mexican officials by US
Immigration and Customs Enforcement (ICE) and Customs and Border Protection
(CBP) agents. As Sarabia (2018) has made clear, the pressure from the United
States for Mexico to achieve the goals of the program, including the interception of
Central American migrants, has ‘thickened’ the border. The dynamics of securiti-
zation and the externalization of borders – and responsibilities – can be clearly seen
in both the Merida Initiative and the Central America Regional Security Initiative,
driving much-needed reforms to the justice systems but also effectively criminal-
izing and endangering unauthorized migrants within Mexico. It’s clear to most that
globalization has a severe impact on the reasons why residents of certain places
become migrants; neoliberal policies pushed by international agencies and the
transnational dynamics of capitalism, crime, violence and exploitation push people
out of their places of origin and then those same forces of globalization shape the
way transit and arrival countries outline their justice system, attempt to govern
migration flows and respect the human rights of unauthorized migrants.13
10
Presidencia de la República (2014): “Pone en marcha el Presidente Enrique Peña Nieto el
Programa Frontera Sur”; at: https://www.gob.mx/presidencia/prensa/pone-en-marcha-el-
presidente-enrique-pena-nieto-el-programa-frontera-sur.
11
“Resalta la Segob contención migratoria”, in: Reforma (2 November 2015).
12
In fact, Mr. Johnson, then Secretary of the Department of Homeland Security, released a
statement that in part read: “We are also pleased that the Mexican government has itself taken a
number of important steps to interdict the flow of illegal migrants from Central America bound for
the United States.” Department of Homeland Security (2014): “Statement by Secretary Johnson
About the Situation Along the Southwest Border”. Available at: https://www.dhs.gov/news/2014/
09/08/statement-secretary-johnson-about-situation-along-southwest-border.
13
Kovic/Kelly (2017) posit that “the violations of economic rights of transmigrants within their
sending communities are practically invisible as they attempt to make the journey north. These
violations – created by global capitalism and neoliberal reforms promoted by international
financial agencies – are the very reasons that migrants leave their homes and communities.”
Fig. 7.1 Foreign nationals detained and presented to the National Migration Institute, 2008–2017.
Source SEGOB, Unidad de Política Migratoria; at: http://www.politicamigratoria.gob.mx/
7.5 Migrants in Transit Through Mexico
Just in the first semester of 2018, according to official figures, 64,222 migrants have
been detained and presented to the authorities, an increase compared with the same
period in 2017, which amounted to 43,518 detained migrants.14 51,748 migrants
with an irregular status have been deported in this same period, an overwhelming
majority of them being nationals of the countries of Central America’s Northern
Triangle: Honduras, El Salvador and Guatemala (Fig 7.1).15
In 2016, a petition identified as Case P-652-1616 was filed in front of the
Inter-American Human Rights Commission (IAHRC) by almost forty organizations
against the United States and Mexico for the amount and procedures for deporting
tens of thousands of migrants from Guatemala, Honduras and El Salvador. At one
point, Mexico deported more Central American nationals than the United States
did.17 The petition stated that most of these people were being sent back to dan-
gerous places where they ran a risk of persecution and death, and these states,
14
2017 saw 93,846 migrants with an irregular status detained and processed through the INM.
15
Another 38,000 people from those countries have been subject to ‘voluntary return’ policies
between January and June 2018. In addition to these numbers, another 3,000 non-nationals were
given a letter of exit that allows them to leave the detention facilities to start their regularization
process or leave the country without being deported (Unidad de Política Migratoria).
16
Adolescentes en el camino et al. (2016): “Petition for interim and permanent measures regarding
systematic violations of the American Convention on Human Rights and other international
covenants against Central American migrants in Mexico”; at: https://www.centerforhumanrights.
org/PDFs/IACHR_PFS_Petition.pdf.
17
The Washington Office on Latin America (WOLA) (2015): “Mexico Now Detains More Central
American Migrants than the United States”; at: https://www.wola.org/2015/06/mexico-now-
detains-more-central-american-migrants-than-the-united-states/.
through acts of violence, unnecessarily long detention and violation of due process,
were preventing migrants from applying for and being granted international pro-
tection. This, in turn, violates the principle of non-refoulement.
Holding migrants in one of the fifty-nine detention centers in Mexican territory
seems to be, at the very least, questionable, if not outright illegal or unconstitutional
(Castilla Juárez 2014). Article 111 of the Migration Act gives the National
Migration Institute clearance for arresting and detaining18 migrants with an irreg-
ular status throughout the country. The issues here are, first, that having an irregular
migration status in Mexico is not a crime but a misdemeanor; and secondly,
according to Article 21 of the Constitution, an administrative authority can only
detain someone through an arrest and only for up to thirty-six hours before pre-
senting the case to a judge, who would then be able to set a sentence, set conditional
release, or dismiss the case. However, immigration officers have been known to
detain people for longer spans of time than the rules allow. Article 111 itself allows
the immigration authorities to keep someone in their custody for up to fifteen days,
and if the detainee demands a judicial review of his or her case or a writ of amparo,
the time spent in the detention facility can be longer. This provision in particular
goes further to violate another set of human rights – access to justice, the right to
consular assistance and the right to due process, to name just a handful. These long
stays in detention facilities are particularly difficult for unaccompanied children,
victims of sexual assault and abuse, members of the LGBTTTIQ community and
those who live with other intersecting vulnerabilities (CCINM 2017).
The United Nations Subcommittee on Prevention of Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment (SPT 2017) wrote a report about
its visit to Mexico in 2016 in which it registered conditions of overcrowding in
migratory stations and noted that information is not consistently provided to
migrants about their detention and other proceedings. The Subcommittee also
pointed out that migration officials do not help migrants contact their families or
reach consular assistance, that the detainees claim to have been victims of beatings,
torture (e.g. waterboarding, use of picanas or other electrical prods) and were
themselves witnesses to inhumane treatment in detention facilities with deplorable
conditions. One of the now-famous concluding remarks of the Subcommittee stated
that “torture in Mexico is generalized”. Testimony on this type of treatment has
been documented by several civil society organizations.
Data from the Documentation Network of Migrant Advocacy Organizations
(REDODEM 2018), a network which collects data in a systematic way from
shelters, community kitchens and other organizations that work with migrants,
shows that out of the 28,288 migrants interviewed at these places from January to
December 2017, 2,724 were victims of a crime and an additional 425 migrants were
18
The INM uses the word ‘alojar’, which means ‘host’ or ‘accommodate’, a word legislators
decided would describe their policies better than detaining or incarcerating. It doesn’t.
Table 7.1 Perpetrators of crimes against migrants

Origin of victimizer 2014 (%) 2015 (%) 2016 (%) 2017 (%)
Government agents 20.16 41.51 17.39 25
Non-government Private 25.56 12.72 62 75
actors individuals
Organized 54.27 45.72 11.49 N/A
crime
Private train N/A N/A 6.05 N/A
guards
Other N/A N/A 3.07 N/A
Source Data from the Documentation Network of Migrant Advocacy Organizations 2017 report
(REDODEM 2018)
witnesses to a crime.19 Most of these were committed in the states of Chiapas,

Oaxaca and Veracruz.
Table 7.1 shows the relative amount of times that migrants singled out different
types of victimizers when interviewed at the REDODEM-affiliated centers. The
categories have been changing with every report, but the amount of government
agents identified as perpetrators of crimes against migrants seems to hold constant
at around 20% except for 2015, the first full year where the Frontera Sur Program
was implemented. The data presented relies on the recollection of migrants who
arrive at these shelters, and the routes they take each time are affected by the
knowledge of government raids or checkpoints, criminal activity in specific hot
spots or the availability of transport and other resources. The restrictive migration
policy that comes with the Frontera Sur program is supported on the argument of
safeguarding national security, producing not only a surge in arrests, detentions and
deportations, but also in crimes, including torture, kidnapping, extortion and
murder.
The same report states that the dangers and threats to migrants and refugees
within the known routes have risen in part due to the culture of illegality that
permeates Mexico, a problem that will undoubtedly continue if no action is taken to
reform not only the courts, but also the way law-enforcement officials operate to
stop ‘regime policing’ (see Neild 2001) and develop accountable and trustworthy
practices (Davis 2006; Uildriks 2010). Having said this, government officials are
only some of the actors involved in endangering migrants’ transit through Mexico.
As other research shows, migrants can also fall prey to gang violence and organized
19
It is important to note that the data collected by the REDODEM has limitations. The information
collected conveys the experiences of migrants who actually get to one of the twenty-three different
affiliates, naturally leaving outside of its scope migrants who are apprehended or deported before
reaching a shelter or those who use different routes or means of transportation that would make
them undetectable to the centers participating in the network. It is a reality that migrants are
looking for new paths to make their way through Mexico, but it is also known by them that aid is
provided throughout the usual routes, providing incentives for migrants to use them and hence
making the network’s database more relevant.
crime (Anaya Muñoz/Díaz de León 2012; Correa-Cabrera 2014). Migrant advo-

cates constantly denounce the strong relationship between crimes by private indi-
viduals and the participation of agents of the Mexican State. In many cases,
stretches of migratory routes have been documented in which massive kidnappings
are carried out (REDODEM 2018).
The San Fernando massacre of 2010 is one of the most horrific examples of the
dangers that migrants face without proper protection by the State. In the border state
of Tamaulipas, at least seventy-two migrants from Central and South America were
kidnapped and then murdered by Los Zetas drug cartel, either because of their
refusal to work for the criminal organization or their inability to pay a ransom.
Diamond (1999: 91) pointed out that “in the context of weak states and inefficient,
poorly disciplined police, crime may inspire drastic, illegal, unconstitutional and
grotesquely sadistic responses to try to control it”. The crack-down by Mexican
state officials has led many people with an irregular migration status to find new and
more dangerous routes through the country, risking their lives in the hope that they
can make it to the United States. Mexico, then, is falling short of its obligations to
safeguard human rights not only by not having a standardized framework to protect
migrants – even from the action of its own government agents – but also by its
omissions in confronting criminal activity and by its apparent tolerance of illegality
and corruption, thus further endangering a group that was already in a position of
vulnerability.
7.6 Asking for Directions: A Move Towards Migration

Governance at the Local and Global Level
The IAHRC case described above stated that the governments of Mexico and the
United States create and condone an environment of hyper-violence and impunity,
that the detention of asylum seekers is itself a clear violation of international law –
let alone the conditions of the detention facilities – and that migrants seldom receive
anything similar to a fair procedure to be granted asylum. The failures in protecting
migrant rights are related to the lack of implementation of international law stan-
dards at national level (Martin/Abimourched 2009) in defense of the State’s right to
sovereignty; the lack of an “authoritative global monitoring and oversight mecha-
nism” (Atak 2018: 34) means that states are not held accountable for their inaction
or outright human rights violations.
The infringement of migrants’ rights and the people seeking international pro-
tection is a result of the contradictory nature of different international standards and
local rules that govern migration flows in Mexico. These contradictions are
themselves a result of the interplay between the forces of globalization, the resis-
tance of sovereignty claims and, in the middle, a weak institutional set-up that
won’t respond to the needs of the most vulnerable due to its poor design or the lack
of willingness to implement a transversal human rights approach to migration
management. These conclusions had already been reached over five years ago in a
report by the IACHR (2013) on the human rights of migrants and other persons in
the context of human mobility in Mexico, stating that:
immigration policies, laws and practices that criminalize migration, or those that take a dual
approach – on the one hand recognizing that migrants have human rights, but at the same
time regarding them as a threat to national sovereignty or security – contain an inherent
contradiction and are at odds with what a human-rights-based immigration policy should
be.
Without re-thinking migratory flows as a governance issue that requires the full
cooperation of states instead of regulating only through the perspective of national
security, trade, jobs or other market factors, the assertion of sovereignty will con-
tinue to push people with an irregular migration status into the shadows. In a
globalized world, migration governance with a solid institutional framework based
on a human rights perspective that also disincentives non-compliance or the for-
mation of competing informal institutions is the only avenue to assure complete
respect for and promotion of the rights of those in the margins, in the dangerous
routes, in the desert and on the trains. The Special Rapporteur pointed out that
migration governance would not hinder sovereignty, it would provide the means for
coordination and cooperation between states and it would lead to a more robust
system for the protection of migrants against human rights abuses by states, or-
ganized crime and the private sector (UNHRC 2013). If states are able to ascertain
their domain over the territory with strong institutions and protections that work
within an international cooperation framework, criminal organizations, human
traffickers, coyotes and other actors that take advantage of migrants would find a
less fertile ground for their operations.
After the UN General Assembly’s New York Declaration for Refugees and
Migrants, some new avenues have opened in this direction. The Global Compact
for Safe, Orderly and Regular Migration (GCM) is the first international instrument
to set specific goals and commitments in migration governance involving states,
civil society and the private sector to achieve them. It compels states to produce
data for evidence-based policy, to define more and clearer paths for regular mi-
gration, to strengthen certainty and predictability in migration procedures, and to
work towards the full incorporation of migrants and diasporas into host countries
with the complete protection of national and international law. The Compact rec-
ognizes states’ rights to self-determination and sovereignty, leaving most countries
willing to get on board. The problem is that, again, the instrument is not binding.
Other agreements and frameworks have missed their mark in the past, producing
suboptimal results, or even strengthening border control without improving human
rights protection, oversight or accountability. Money, Lockhart/Western (2016) have
shown that the status quo privileges receiving states, but provides no incentives for
them to bargain with sending states to achieve a more comprehensive mobility
system. For this reason, countries have to push for a set of international standards that
assure compliance with human rights law, and at the same time they also have to push
their own legislative bodies and their own judiciary towards the strengthening of their
institutions, towards the capacity-building of civil society and advocacy groups, and
towards opening more channels for legal migration and the regularization of
migrants. States have to produce better data and base their legislation and policies on
this rather than toxic discourses. Investment in new avenues that assure the protection
of rights can prove to be a more effective way to foster local and regional develop-
ment than the current approach. Migration governance, then, can only work if the
cooperative partners can individually be relied upon to respect and apply the law in a
consistent and predictable way, if they have oversight mechanisms to assure ac-
countability and transparency, if they have well-proportioned sentencing, and if their
actors, policy and laws are gender-sensitive and human-rights sensitive. “Good
governance at the national level is a basis for more effective cooperation at the
regional and global levels” (Crépeau/Atak 2006: 143).
Mexico being at same time a sending and receiving country and also a country of
transit is in a unique position to understand both the push and pull factors that are in
play when people migrate in a globalized arena. The country has taken a central
voice in shaping the international agenda on this matter, but it still has a major debt
to pay to migrants in its territory. The transformation that Mexico has to go through
to strengthen its rule of law has to take into account a human rights perspective
which has to be mainstreamed in the actions of everyone from the police to the
Mexican Supreme Court of Justice, from every public servant to all private sector
actors. The treatment of the most vulnerable in society is a litmus test for a state’s
institutions. The basic tenet of the rule of law is that everyone is equal before the
law; Mexico’s institutional framework has to assure the enfranchisement of its
denizens, providing a clear and predictable path to access justice regardless of their
citizenship or migratory status.
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Chapter 8
Amparo and Administrative Trials
as Accountability Mechanisms in Mexico
Ana E. Fierro
Abstract This paper explores constitutional and administrative trials as account-

ability mechanisms provided by the Mexican legal system. Following Kitrosser
(2015), we understand accountability as the substantive dimension of the rule of
law and part of the overall control of power by Congress and the judicial branch.
We define accountability as the legal norms that establish control mechanisms
whereby a state agency is obliged to inform and justify its action to an authority
which judges and sanctions its performance in order to guarantee its compliance
with state goals, including the protection of human rights, and to demand certain
results (Fierro 2017), We suggest that amparo and administrative trials are powerful
procedures in the hands of citizens for demanding government accountability. We
show how, in the Mexican legal system, nullity trials, state liability trials and
amparo not only protect the rule of law but also serve as tools for bringing the
authorities to account and ordering measures for their improvement. We attempt to
show the challenges these procedures still encounter and suggest ways of over-
coming them.
! !
Keywords Accountability amparo Administrative courts Constitution ! !
! ! !
Human rights Rule of law Nullity trial State liability trial Judicial control ! !
Governance
8.1 Introduction
For most of the twentieth century, Mexico was ruled by a single party, the PRI. It
was only in 2000 that Vicente Fox from the PAN, the main opposition party at the
time, became President. This democratization process developed into a significant
Doctorate in Law from the Instituto de Investigaciones Jurídicas de la UNAM. LLM from the
Georgia University and Master in Philosophy from the Universidad Anáhuac, campus Mayab.
Bachelor in Law from ITAM. Nowadays, Ana E. Fierro is Coordinator of the Master in
Management and Public Policy and research professor at the CIDE. Her interests are
transparency, accountability and responsibility of civil servants. Email: ana.fi[email protected].

https://doi.org/10.1007/978-3-030-31314-2_8
142 A. E. Fierro
effort to strengthen the rule of law by demanding a more transparent, accountable

government, establishing a civil service and implementing constitutional reforms to
protect human rights. Nevertheless, today we still face significant challenges
regarding full respect for the rule of law. This paper explores the accountability
mechanism offered by the Mexican legal system. Following Kitrosser (2015), we
regard accountability as the substantive dimension of the rule of law, and part of the
overall control of power by Congress and the judicial branch. We suggest that
administrative trials and amparo are powerful tools in the hands of citizens for
making the government accountable. We show how nullity trials; state liability
trials and amparo not only protect the rule of law but also serve as tools for bringing
the authorities to account and ordering measures for their improvement. We seek to
show the challenges these procedures still encounter and suggest ways of over-
coming them.
8.2 Rule of Law
Although the rule of law is a commonly used term, its meaning varies from one
legal system to another. In the common law tradition, the main purpose of the rule
of law is to extend the law to all people, thereby guaranteeing equal treatment for
everyone. The German concept Rechtsstaat emphasizes public power as the means
of achieving the State’s goals. In the French case, the rule of law is a way of
limiting state power to guarantee human freedoms through the division of power
and recognition of the universal value of human rights (Cossío 2004). A common
feature of these concepts is the idea that the rule of law serves as a means of
controlling power to prevent its abuse.
As states become more sophisticated by regulating the market, preserving the
environment and providing public services, forms of control must also evolve to be
able to address new challenges. Nowadays, it is not enough to have a division of
power into three main branches and regular elections. We require mechanisms that
guarantee the transparency of public decisions, and state accountability for the
results of its actions (Cossío 2004). Therefore, today accountability mechanisms
should be considered part of the rule of law as a means of guaranteeing state goals
by strengthening our capacities to control public power and demand certain results.
In the Mexican legal system, the rule of law is understood, as in the French
tradition, as a way of controlling power and guaranteeing human rights. Since our
beginning as an independent nation, the division of power and the recognition of
certain rights have been part of our legal system. Nevertheless, our recent history
has shown that these controls are not enough on their own. In the twenty-first
century, the Mexican legal system has undergone major reforms to strengthen the
rule of law, such as the 2011 constitutional amendment of Article 1 to recognize
human rights not only as enshrined in the Constitution but also in human rights
8 Amparo and Administrative Trials as Accountability … 143
treaties, and the renovation in 2013 of the Ley de Amparo, the process for con-
trolling the constitutionality of public acts by the federal judiciary where the citi-
zens have standing. Accountability mechanisms have also acquired importance in
the Mexican legal system. The following sections will explore these judicial pro-
cedures in the hands of citizens as accountability mechanisms, as well as their
results and limitations.
8.3 Accountability
Accountability has gained prominence since the beginning of this century as a

fundamental concept in the rule of law. Nevertheless, as Mulgan (2002), Schedler
(2010) and Bovens (2010) have pointed out, it is used with various meanings and
objectives. Accountability refers to good governance, transparency, efficiency and
sanctions in the event of corruption (Bovens 2010). Unfortunately, accountability
has been also used as an instrument of rhetoric, making it ambiguous at times
(Kitrosser 2015). It is therefore necessary to have a clear definition of the concept in
order to analyse its role in a particular legal system.
Professor Boven distinguishes two main ways in which the concept of ac-
countability is used. The first is accountability as a quality of responsible people, an
ideal to which public servants should aspire. Black’s Law Dictionary (2017) defines
accountability as “the state of being responsible or answerable”. It is the way in
which public servants should act, and involves behaving in a rational, prudent
manner. Accountability in this sense is used to determine whether the actions of a
person, such as a public servant, comply with the qualities expected of them. It
refers to the state of being responsible for your own actions. The second meaning of
accountability is as a mechanism. It is an institutional arrangement whereby an
actor may be held to account by an agency. Here, the focus of accountability studies
is not the behaviour of individuals in the public service, but the way these insti-
tutional arrangements work (Bovens 2010). This second meaning is useful for
guaranteeing the rule of law by strengthening the capacity to control public power
and demand certain results.
In keeping with these distinctions, accountability as part of the rule of law should
be understood as a mechanism that requires formal procedures in which the actions
of public agencies are judged and sanctioned. Ackerman (2008) states that these
mechanisms are proactive controls of power, whereby an authority is entitled to
analyse another person’s actions and determine the consequences they warrant.
O’Donnell (2008) notes that accountability should be understood as a means of
control of the State’s activity in two dimensions: a vertical one through periodic
elections and a horizontal one through a system of checks and balances. These are
bilateral mechanisms designed to ensure the evaluation of actions of public agen-
cies by an authority not only to sanction their possible departure from the law but
144 A. E. Fierro
also to improve their performance (Argyris/Shon 1997). Lapsely (1995) explains

that in any public administration procedure, accountability is an essential element
for evaluating the results of a public agency and its efficiency and for finding ways
of improving its outcomes. In this respect, accountability, as Kitrosser (2015) points
out, is the substantive dimension of the rule of law and part of the overall control of
power by Congress and the judicial branch. Thus, accountability as a dimension of
the rule of law can be defined as the legal norms that establish control mechanisms
whereby a state agency is obliged to inform and justify its action to a different
authority, which judges and sanctions its performance in order to guarantee its
compliance with state goals, including the protection of human rights, and to
demand certain results (Fierro 2017).
If accountability is a legal process, then a judicial review of agencies’ perfor-
mance can be regarded as an accountability mechanism whereby the judiciary uses
legal guidelines to analyse the actions of a given authority to determine its com-
pliance with the rule of law, evaluates the outcomes of its action and provides
solutions and institutional corrections if required (Fox 2008). The other main ac-
countability mechanism is congress budgetary controls. These controls focus on the
agencies’ performance, their outcomes and efficiency (Behn 2001), and are usually
considered accountability measures. Both mechanisms constitute checks for bran-
ches of government in which independence from either Congress or judges is an
essential feature.
Accountability mechanisms are important elements of the rule of law. How they
work and how frequently they are used are key indicators of the strength of the rule
of law itself. Accordingly, the following sections focus on how judicial procedures
operate as accountability mechanisms in the Mexican legal system, exploring their
strengths and challenges. Although we recognize that Congress budgetary control is
an important accountability mechanism, in this paper we concentrate on those
mechanisms that aim to ensure the rule of law, therefore we analyze the adminis-
trative and constitutional trials in the Mexican legal system that fulfil the charac-
teristic of our definition of accountability; both are procedures where citizens have
standing and the authority that judges is from a different branch of government from
the agency being judged.
8.4 Constitutional and Administrative Courts

as Accountability Mechanisms
We defined accountability as the substantive dimension of the rule of law and the
legal norms that establish control mechanisms whereby a state agency is obliged to
report and justify its actions to a different authority which judges and sanctions its
performance to guarantee its compliance with state goals, including the protection
of human rights, and to demand certain results. Since state goals and human rights
are usually part of the Constitution, accountability mechanisms are therefore pro-
cedures which enable citizens to demand that government actions comply with the
constitutional mandate as the supreme law of the land. To ensure the effectiveness
of this compliance, the legal system requires mechanisms to determine the validity
of the authorities’ actions. Constitutional and administrative procedures which
provide these accountability mechanisms guarantee the independence of the agent
that judges from the authorities whose actions are being reviewed.
Ginsburg points out that the evolution from authoritarian regimes to democratic
ones governed by the rule of law is characterized by the transition from the political
control of government actions by ideology and hierarchy to the institutionalization
of legal procedures governed by law, in charge of independent bodies and
respectful of due process. Accordingly, constitutional and administrative courts
gain importance as accountability mechanisms in democratic regimes (Ginsburg/
Tamir 2008). This type of mechanism has the virtue of empowering citizens by
granting them standing in the judicial process in which government actions are
called to account. In this respect, citizens play an essential role in accountability
mechanisms by bringing authorities whose performance is unsatisfactory to court.
These actions not only protect the plaintiffs’ rights but are also a means of con-
trolling agencies’ performances. They function as alarms triggered by citizens when
governments’ actions fail to comply with the law or the Constitution (McCubbins
2011). Involving citizens in these accountability mechanisms also has the virtue of
not requiring ad hoc institutions for the control of agencies’ actions. Moreover,
because it is an adversarial procedure, its quality can be assessed based on the
complaint and the defendant’s response, making it also an efficient, democratic
option (Ginsburg/Tamir 2008). In this respect, constitutional and administrative
courts grant sovereign citizens control of their government, making them demo-
cratic accountability mechanisms (Nohlen 2007).
Administrative courts as an accountability mechanism are the authorities
responsible for ensuring the rule of law. They revise the legality of government
actions through a judicial procedure. They serve as the guarantors of correct gov-
ernment performance through what García Enterría (2007) defines as the protection
of the right to a good administration. Asimov (2015) distinguishes four types of
administrative courts in the various legal systems. These courts vary, depending on
how they function as independent agencies or separate tribunals, in either adver-
sarial or inquisitorial procedures, and according to the scope of the judicial review
that is open or closed to the introduction of new evidence, and whether the judicial
review is conducted by general or specialized courts. The Mexican case follows the
French model by having special independent courts with an inquisitorial system,
open to new evidence.1
1
With the Anti-corruption constitutional reform of 2015, the federal and all the state-level ad-
ministrative courts became independent. See Diagnóstico de Justicia Administrativa; at: http://
repositorio-digital.cide.edu/handle/11651/1496.
146 A. E. Fierro
The procedures by which the adherence of performance to constitutional norms

is evaluated are known as constitutionality controls and constitute accountability
procedures. The analysis is conducted by a diverse, autonomous reviewing body. Its
purpose is to analyse the performance of an agency to determine whether its actions
comply with the rights and principles contained in the Constitution and sanction
them accordingly. Constitutional courts are responsible for the effectiveness of
human rights by empowering citizens to demand from their authorities their com-
plete fulfilment (Ferrajoli 2000). The court reviews all acts of government to
determine their compliance with the observance of human rights and regards the
goals contained in the Constitution as the supreme law of the land. It is therefore an
accountability mechanism that guarantees the adherence of the exercise of power to
the Constitution. There are two main models of constitutional control: the European
model, with specialized Constitutional courts, and abstract control, where decisions
have erga omnes effects. In the common-law model, constitutional control may be
exercised by any judge within the ordinary judicial procedure, and the decision only
has an inter partes effect (Cossío 2011).
In the Mexican case, the main constitutional control in the hands of citizens is
the amparo, which is a combination of the two models. The Mexican case is
paradigmatic, with some authors such as Burgoa (2010) and Tena (1984) consid-
ering it unique. Since it is a specialized procedure undertaken in federal courts, the
decision only affects the parties being tried, except for some cases in which there is
a declaration of general effects by the Supreme Court of Justice of the Nation
(SCJN).
8.4.1 Administrative Courts as Accountability Mechanisms
In Mexico, there are two main ways of controlling administrative agencies: nullity
trials and state liability trials. Both are designed to ensure that administrative
agencies comply with the law. The Constitution regulates these procedures differ-
ently for each level of government. For the Federation, the Mexican Constitution
(Article 73, XXIX, H) empowers Federal Congress to issue laws that create ad-
ministrative courts, which are responsible for both nullity and liability proceedings.
Through these lawsuits, individuals may sue agencies whose actions they regard as
unlawful. At the state level, in accordance with the provisions of the Mexican
Constitution (Article 116, Section V and 122, 5), local administrative courts are
authorized to resolve this type of controversy. In turn, the Mexican Constitution
(Article 115) also empowers local congresses to establish procedures for the res-
olution of disputes with municipal authorities. These are procedures in which, based
on a request by an individual, a judge sanctions a government action. Since this
accountability procedure takes the form of a trial, individuals play an important role
as plaintiffs. A citizen’s complaint serves as an alarm, indicating that they have been
affected by an action that departs from legality. The type of cases commonly taken
to these courts are administrative decisions, such as government purchases, permits,

licenses, or fines. The decision of the Court may:
• declare the validity of the contested action with respect to the powers conferred
by the legal order. as a result of which the action remains;
• declare that the contested action departs from the normativity, in which case it
proceeds to:
– decree the full nullity of the action, since the problems cannot be corrected;
– or decree partial nullity, since it is possible to correct the problems of the
contested action;
– and/or request redress or payment of damages where appropriate.
The purpose of the nullity trial is therefore to verify the compliance of gov-
ernment actions with the law and, in the event of a mistake, to order it to be
corrected, which constitutes an accountability procedure as defined earlier.
The second trial in administrative courts operating as an accountability mech-
anism is the state liability procedure. This procedure focuses on repairing the
damage caused by the acts or omissions of public administration, at the federal and
local levels. Article 109 of the Mexican Constitution states that irregular admin-
istrative activity makes the State liable. The Supreme Court of Justice of the Nation
(SCJN) has declared that the Constitution establishes the substantive right of
individuals to receive compensation when irregular administrative activity has
caused damage. The purpose of this right is “to redress damage, through financial
compensation, as well as to ensure, through legislation and the corresponding
ordinary channels, a procedural vehicle to secure compliance.2 Article 109 of the
Mexican Constitution establishes a substantive right in favor of the people. The
SCJN concluded that irregular administrative activity alone constitutes the object of
this procedure, which excludes judicial error or failures in Congress, and that it
should be understood as state action undertaken without meeting the legal
requirements for the undertaking of this administrative act. Its purpose is to repair
the damage caused to individuals by irregular administrative activity – in other
words, activity which, by action or omission, fails to comply with established legal
obligations – or by a performance failure on the part of the public sector.3 State
liability can therefore be understood as an accountability mechanism whereby ad-
ministrative courts judge the acts of state agencies as well as the damage caused and
the way the latter can be redressed. Redress can create a system of incentives to
prevent the repetition of certain actions and, in the long run, improve agencies’
performance, since it causes the internalization of the costs caused by irregular
actions (López/García 2017), which in turn makes them effective accountability
mechanisms, since they foster the improvement of government actions.
2
Semanario Judicial de la Federación and Gaceta, Vol. XXIX. 167386. 1a. LIV/2009. Primera
Sala. Novena Época (April 2009): 590.
3
SCJN[TA]; 10a. Época; T.C.C.; S.J.F. and Gaceta; Book XVIII, Vol. 3 (March 2013): 2077.
148 A. E. Fierro
Once again, the citizen as plaintiff plays a key role in this procedure by high-
lighting the irregular performance of public administration. The SCJN has pointed
out that the Constitution establishes the substantive right of citizens to receive
compensation when the irregular administrative activity of the State has caused
them harm. The aim is to provide proper redress, as well as a vehicle to secure
compliance.4 Regarding the purpose of this procedure, and in keeping with the
concept of accountability, the SCJN has established that state liability procedures
have four main purposes:
(i) to compensate damage;
(ii) to create incentives designed to prevent damage and accidents;
(iii) to guarantee the proper functioning of government,
(iv) to ensure that administrative actions are free from liability.
State liability trials are therefore important accountability mechanisms that create
a direct system of incentives to correct illegal actions by agencies. They are a
powerful tool for improving government. Even the SCJN has established that the
reason for the existence of state liability procedures is to guarantee that adminis-
trative activity complies with the law and that public services are delivered in
accordance with certain quality standards, which constitutes a fundamental right to
an efficient public administration, because if these standards are not met, the right to
compensation is guaranteed.5 Accordingly, the SCJN considers that it is a form of
control designed to ensure that public administration functions efficiently, noting
that an efficient public administration is a fundamental right. The state liability
procedure is one of the procedures in the accountability system with the clearest
corrective purpose.
8.4.2 Weakness and Challenges
As established by Ginsburg/Tamir (2008), in authoritarian regimes, conflicts with

the administration are not resolved through legal channels such as trials but by
informal means. This was true of Mexican administrative courts in the twentieth
century. These courts were not very well known, and their use was limited mainly
to federal tax conflicts; only twenty-nine states had administrative courts (López
et al. 2010). By the end of the twentieth and the beginning of the twenty-first
century, the coming to power at the state and federal level of parties other than the
PRI (the state party) led to the creation of more administrative courts, and today all
thirty-two states have one. Nowadays these courts play a greater role in the control
of the administration and preservation of the rule of law. A recent paradigmatic
case, popularly known as Teresa y Jacinta, involved two indigenous women who
4
SCJN[TA]; 9a. Época; 1a. Sala; S.J.F. and Gaceta; Vol. XXIX (April 2009): 592.
5
[TA]; 9a. Época; 1a. Sala; S.J.F. and Gaceta; Vol. XXIX, (April 2009): 592.
were accused of kidnapping soldiers and were wrongfully imprisoned. They sued
the federal prosecutor in a state liability trial at which the court ordered not only
redress but also a public apology, thereby showing its effectiveness as an ac-
countability mechanism.6 Nevertheless, access to justice in these courts is still far
from simple. The process is extremely formal and sometimes lengthy. These courts
at the state level are still underfunded and the personnel require better training.
(López et al. 2010). This is especially true of state liability trials: a recent study
shows that, even at the federal level, between 2005 and 2017 only 398 cases were
taken to Court (Morsi 2007).
Judicial independence is another challenge these courts must overcome. The
judge’s appointment by the legislative branch from candidates suggested by the
President or governor without a clear profile or justification lacks the necessary
transparency to guarantee the autonomy of judges. The SCJN has stated that for the
appointment of administrative judges, the proposals must contain elements related
to their performance. Those reviewing the candidates must determine whether they
comply with the constitutional principles of efficiency, probity, honesty, good
reputation, proven ethics and professionalism which all public servants should
follow (Amparo, AR 753/2015). Nevertheless, these criteria are seldom met.
Limiting state liability trials to administrative irregular activity undermines the
potential of these procedures to operate as comprehensive accountability mecha-
nisms. In other legal systems, such as the Colombian or Spanish, state liability
procedures encompass actions from the three branches of government (Gil Botero
2013). This strengthens the capacity of citizens to bring all authorities to account. In
this sense, the Mexican legal system should expand the competence of state liability
trials to judicial and legislative errors.
To ensure that authorities abide by the rule of law, greater efforts must be made
to guarantee access to these courts and to make their procedures and decisions
comprehensible to everyone. Moreover, the professionalization of the Court and the
guarantee of its independence through autonomous appointment procedures and
adequate funding are required for this accountability mechanism to work fully as
part of a democratic state governed by the rule of law.
8.4.3 The Amparo Trial as an Accountability Mechanism
Within the Mexican legal system, the Amparo Trial constitutes the main procedure
for ensuring constitutionality. Because of the democratization movement at the
beginning of the twenty-first century, a series of constitutional reforms were
undertaken to strengthen the rule of law, including the 2010 Human Rights Reform
(National Human Rights Commission 2012) and the 2011 Amparo Reform (Official
6
See at: http://centroprodh.org.mx/?option=com_content&view=%20article&id=2250%3A2017-
02-18-06-00-48&catid=278%3Ainfografias&Itemid=220.
150 A. E. Fierro
Journal of the Federation 2011) The Constitution regulates this trial in Articles 1,
103, and 107. In accordance with Paragraph 3 of Article 1 of the Constitution, all
acts of government must promote, respect, protect and guarantee human rights, and
constitutional control procedures are a way of ensuring that this in fact happens.
The amparo is the jurisdictional procedure whereby individuals can challenge any
action they consider contrary to the Constitution, regardless of the level or branch of
government by which it was undertaken. Given this range of subjects, the amparo is
the most powerful accountability mechanism in the Mexican legal system.
Moreover, as a result of the amparo law reform of June 2011, its scope for pro-
tection was expanded in line with the constitutional reform of Article 1, known as
the Human Rights Reform. This reform stipulates that in Mexico human rights will
be recognized not only as expressly stated in the Constitution but also in interna-
tional treaties. Subsequently, the SCJN, in decision 293/2011,7 reinforced this new
mandate, stating that both the constitutional norms and the human rights norms
contained in international treaties signed by Mexico should be considered part of
the Constitution. In addition, the SCJN ruled that all precedents of the
Inter-American Court of Human Rights (CIDH) will be mandatory within the
Mexican legal system. Consequently, all judges must observe both the human rights
mandates contained in the Constitution, the treaties, and the decisions issued by the
SCJN and the CIDH. Accordingly, amparo should now be used in violations of
constitutional articles and the international treaties signed by Mexico concerning
human rights. Thus, amparo exercises both constitutional and conventional
control.8
Moreover, the 2010 and 2011 reforms not only broaden the scope of the review of
actions involving human rights and constitutional principles, but also make the
requirements for beginning an amparo more flexible, thereby giving people greater
access to it. Nowadays, it suffices to prove that an act or ruling has caused or could
cause unlawful damage and that the person coming to court has a legitimate interest
in preventing it, without necessarily having to prove the infringement of a subjective
right. Citizens can now also present a class action. Since the 2011 reform, it has been
possible to use amparo to sue not only traditional government agencies but also
private entities if they provide a public service. Moreover, in the case of adminis-
trative activity, the Constitution expressly allows a citizen to protest against omis-
sions, as indicated in Section IV of Article 107 of the Constitution. On a number of
occasions, the SCJN has emphasized that the timely exercise of the powers of state
bodies is part of individual guarantees, and therefore that the omission of this
exercise constitutes a violation of the Constitution. This flexibility in amparo pro-
cedure has strengthened it as an accountability mechanism enabling people to sound
the alarm when an action of any authority threatens the Constitution.
7
See at: https://sjf.scjn.gob.mx/sjfsist/Paginas/DetalleGeneralScroll.aspx?id=24985&Clase=
DetalleTesisEjecutorias.
8
In the SCJN decision A.R. 293/2011 conventional control was limited. This decision determines
that when the Mexican Constitution establishes a restriction to a human right it should be upheld
regardless of what human rights treatises mandate.
When opposition to an administrative act or a law is brought before a district

judge, it is called amparo indirecto. In this case, after a procedure with the
appropriate procedural stages of merit (claim, response, hearing, and allegations),
its outcome may be:
• to grant an amparo, in which case the sanction consists of determining that the
action opposed contradicts the Constitution and must be corrected;
• to refuse an amparo, in which case the judge considers that the action complies
with the Constitution or that the defendant has not engaged in an omission;
• that the judge deems it inappropriate to try the case due to its failure to comply
with the legal requirements.
The decision may be appealed. The Courts of Appeals or in some cases the
SCJN may confirm, modify or revoke the decision.
Amparo is also a mechanism to control judges. This is called amparo directo. In
this case, if a citizen deems that a decision contravenes the Constitution he or she
comes to amparo before a Tribunal Colegiado federal court with three judges. The
decision has the same outcomes as an amparo indirecto but without an appeal in
general, though exceptionally the SCJN can grant a review in these cases.
Regarding sanctions, Section XVI of Article 107 of the Constitution establishes
measures to guarantee compliance with the judgment and therefore the achievement
of the purpose of the accountability procedure. At the same time, it provides
deadlines for the agency to comply with the resolution or request more time to
achieve it and establishes forms of substitute compliance for cases in which it is
impossible or extremely burdensome to comply with it. In this last case, it is
essential for the violation to be redressed through the payment of damages.
Recent cases where an amparo has been granted due to an omission on the part
of the government include Ward 13 (AR378/2014), in which HIVS patients sued a
public hospital for failing to build a special ward to prevent them from becoming
sicker after the funds for doing so were granted, thereby undermining their right to
health. In the Acueducto Independencia (AR 323/2014, www.scjn.gob.mx) case, an
amparo was granted to an indigenous community because the aqueduct was
approved without the prior consultation which should have taken place in com-
pliance with the ILO Convention 169. These are good examples of the way the
amparo is used as an accountability mechanism that ensures what Kristosser calls
the substantive dimension of the rule of law, in other words, the effectiveness of
human rights.
8.4.4 Weakness and Challenges
The amparo is the main procedure under Mexican law for the protection of human
rights and a means of bringing any part of government to account. The 2010 and
2011 constitutional reforms not only strengthened the rule of law in Mexico but
152 A. E. Fierro
also sought to guarantee an efficient way to ensure this. Nevertheless, access to

justice is still an issue in amparo cases. The number of formalities it involves still
causes over 60% of cases to be dismissed. Only 9.6% are granted an amparo and
only 16% of the appeals reverse the judge’s decision. The reason for the high rate of
dismissal is usually case overload in courts (Soberanes 2018). Experts such as
Magaloni consider that this situation makes the amparo only available to rich
people who can afford a sophisticated lawyer from a firm that is able to overcome
the formalistic barriers (Magaloni 2017). Efforts must therefore be made to make
the amparo accessible to everyone.
Another aspect of the amparo that is deemed to be one of its weaknesses as an
accountability mechanism is its limited ability to guarantee full redress for human
rights violations. Since its inception, the amparo has been regarded as an effective
means of protecting human rights and was even used as a model at the American
Convention of Human Rights, (Quintana 2016). Particularly in health matters, the
SCJN has upheld the right to a solution and even the obligation to oversee the
changes required to prevent future violations (AR152/2013). Nevertheless, authors
such as Quintana (2016) have pointed out that the amparo has often fallen short of
fully redressing violations. Moreover, the SCJN declared that the amparo is limited
with regard to the remedies it can provide and, in general, these should only take the
form of financial compensation.9 This decision undermines the amparo as an ac-
countability mechanism. Limiting redress to payment reduces the scope for
improving government actions. Moreover, democratic exercises such as the
recognition of wrongdoing by ordering public apologies are denied. Hopefully, the
SCJN will reconsider this decision since the lower courts seem to continue to
consider the amparo an important tool for countering arbitrary government actions.
For example, following the disappearance of forty-three students in Ayotzinapa, the
Court of Appeals decided, given the gross violations of the prosecution in the
investigation of this case, to establish a Truth Commission overseen by the national
ombudsman and with the participation of the victims (Medellín 2018).
8.5 Final Thoughts
In the past twenty years, Mexico has undergone a process of democratization

whereby political control of power has lessened and transparency and account-
ability mechanisms have become more common. Today, administrative and con-
stitutional courts have become key actors in the protection of the rule of law by
bringing government to account in significant matters regarding human rights.
Nevertheless, these courts still have major challenges that must be met for them to
fulfil their role as accountability mechanisms.
9
Gaceta del Semanario Judicial de la Federación. Medidas de reparación integral por regla general,
2014342. 1a. LIII/2017 (10a.). Primera Sala. Décima Época Libro 42 (May 2017): 469.
Judicial independence, particularly in administrative courts, must be reinforced.

At the state level, the influence of the incumbent governor in the appointment of
judges as well as the control over the courts’ budgets is undermining the efficacy of
administrative courts as accountability mechanisms. In this area, the recent
involvement of civil society pushing for open appointment procedures where
decisions must be deliberated has helped.
Access to justice should also be facilitated. The public´s lack of awareness of the
existence of administrative trials and their purpose as well as excessively formal
procedures have resulted in their underuse (López/García 2017). Regarding state
liability trials, their scope should be broadened to include not only administrative
agencies’ actions but also judicial error. In the case of the amparo, although it is
better known, universal access to it is far from guaranteed. Efforts must be made to
ensure that every citizen has access to these accountability mechanisms and only
then will the Mexican legal system fully comply with the rule of law.
The 2018 elections have resulted in a significant concentration of power by the
elected President Andres Manuel Lopez Obrador. His party Morena has the
majority of both houses of Congress, therefore traditional checks and balances
might be weakened. To minimise the danger of going back to a government that
concentrates all power in one party and where loyalty to the President is more
important than the law, it is essential that people learn about the accountability
mechanisms explained in this chapter and use them to guarantee their rights and the
compliance of authority to the rule of law.
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Chapter 9
Citizenry, Civic Education and Rule
of Law
Abstract This chapter argues that living under the rule of law requires not only
efficient and effective government agencies but also the extensive and responsible
cooperation of ordinary people. This argument relies on a thick perspective of the
rule of law (see Chaps. 2 and 4), implying a democratic life where people can
exercise their human rights, among other things. Moreover, based on a reviewed
version of the Principle of Fairness, the author maintains that individuals have to
actively participate in public affairs and cooperate in community life as a moral
implication of living together under the rule of law. And, in order to meet this goal,
he contends that it is necessary to strengthen a public policy of civic education.
Finally, the author argues in favor of that public policy because it helps to develop
the virtue of reciprocity, a quality that is conducive to human flourishing and living
together, taking into account that our social nature coexists with a liberal
self-centred culture nowadays.
! ! !
Keywords Rule of law Civic education Citizenry Moral obligation Principle !
!
of fairness Reciprocity
9.1 Introduction
The human being is social. We live in society. Moreover, we see ourselves as part
of a community (Sandel 1981). 86% of people1 agree with this statement on a local
level, and 93% see themselves as part of a country (WVS 2018). But human
relationships are also complicated by nature. Individuals care about multiple things;
we have different priorities, which are frequently in conflict or competition.
1
Data from the World Value Survey Wave 6, based on the views of people from countries within
the European Union, America and Oceania.
Prof. Dr. Jose Pablo Abreu Sacramento, Ph.D. in Law. Department of Law, Tecnológico de
Monterrey, Campus Santa Fe, Mexico City. E-mail: [email protected].

https://doi.org/10.1007/978-3-030-31314-2_9
156 J. P. Abreu Sacramento
Disagreements of that kind, combined with other elements that are part of the
increasing complexity of societies where scarce resources are one of the realities,
have made some philosophers propose a structural order for living together,
pointing out which institutions are justified and how they should work.
In addition to the institutional structure, there has been permanent concern and
discussion about people’s behavior and the moral implications for each of us since
we, in fact, live together. In this sense, the three main approaches to normative
ethics use different criteria to define what is right and wrong: virtue ethics defends
how one ought to be, deontology emphasizes one’s duties or binding rules, and
consequentialism the outcome of one’s actions. However, it is recognized that each
approach accepts features of the rest (Hursthouse/Pettigrove 2016) – as you will
notice I do when expounding my arguments.
This book analyses where Mexico stands in relation to the rule of law and why
this occurs. In accordance with this, this chapter focuses on how members of a
community should behave because of this membership, if they aspire to live under
the rule of law. And I assume in this chapter that we aspire to accomplish that,
because it is the starting point to bring about the equity, prosperity and peace to
communities that Gutiérrez, Martinez, Ponce and Solís highlight in Chap. 4.
In order to support my arguments, I base them on a thick conception of the rule
of law – a conception that includes some of the attributes that Sarsfield describes in
Chap. 2 of this book, such as the necessity for institutional equilibrium, where civil
servants and social actors obey the law and this law is neutral and independent of
any power; a conception that also includes a democratic life where people can
exercise their individual rights.
This chapter therefore argues that if democracy and the exercise of human rights
are necessary conditions to ensure the rule of law, efficient and effective govern-
ment agencies are not sufficient to grant democratic life and personal liberty.
According to political theory, the basic elements of a state are a territory, a
government, a legal order and a population. But when people try to analyze the way
a particular state functions they usually focus on the government design or the legal
content.
In this chapter it is argued that people should be required to participate in public
affairs and to contribute towards the life of the community; and I strongly believe
that there is an individual moral obligation to have this attitude, beyond a legal one.
I therefore advocate a wider civic education policy to generate a civic culture and
foster an autonomous, cooperative and responsible citizenry that strengthens the
rule of law.
To be clear, in this chapter civic education is viewed as a formative process that
cultivates the knowledge, attitudes, values and skills to dispose individuals to
participate in public affairs and cooperate in community life (Conde 2016).
9 Citizenry, Civic Education and Rule of Law 157
In this sense, this chapter answers two questions: Where, if anywhere, does a
moral obligation to participate in public affairs and cooperate with the community
originate? Why is it relevant to strengthen civic education in Mexico?
Section 9.2 recommends fostering in individuals a moral obligation to collab-
orate with the community based on the Principle of Fairness, considering that this
collaboration indirectly ensures the existence of some essential and necessary
measures for the public good (i.e. the rule of law).
Section 9.3 contends that a wider policy of civic education in Mexico would
build up the disposition to collaborate in an autonomous and responsible way.
9.2 Citizenry, Rule of Law and the Principle of Fairness
In this section the individual moral obligation to participate in public affairs and
cooperate in a community is advocated on the Principle of Fairness. Thus, first the
section shows how people in Mexico are not participating in public affairs or
cooperating within community life, thereby affecting the status of the rule of law.
Then Hart’s concept of the Principle of Fairness (1955) is analyzed and some
objections and adjustments proposed by Nozick (1974), Otsuka (2017) and Klosko
(2004) are discussed, before reaching the conclusion that, based on this principle,
there is a moral obligation to collaborate with the State and the community, even if
the received benefit – which in this particular case is related indirectly to the
aforementioned attributes of the rule of law – is neither requested nor essential.
9.2.1 How People Participate in Public Affairs

and Cooperate in Community Life in Mexico
In this chapter the concept of democracy accords with the definition provided in
Article 3 of the Mexican Constitution: “a life system founded on the constant
economic, social and cultural improvement of the people”. This conception of
democracy also agrees with Article 2 of the Inter-American Democratic Charter
when it mentions that “(r)epresentative democracy is strengthened and deepened by
permanent, ethical, and responsible participation of the citizenry…”. In fact, people
in the occidental world have the vision that individuals must be politically involved
(Almond/Verba 1989).
Moreover, it is assumed that we value the deliberative character of democracy
outlined by Elster: “All agree, I think, that the notion includes collective
decision-making with the participation of all who will be affected by the decision or
their representatives: this is the democratic part. Also, all agree that it includes
decision-making by means of arguments offered by and to participants who are
committed to the values of rationality and impartiality: this is the deliberative part.”
(1998: 8).
In other words, in a democracy it is not enough to have free and periodic
elections; the relevant participation of the people in public affairs is also necessary.
And this requirement of civic – not only political – participation is even more
urgent since representative democracy has been in crisis for the last few decades,
with people usually distrusting and rejecting politicians and parties. Additionally,
for a democracy to be truly deliberative, there is a belief that people participation
has to incorporate some degree of epistemic autonomy at the moment of discussing
and making collective decisions.2
But in this chapter it is also held that cooperation between people is necessary to
bring about a system of life whereby people’s economic, social and cultural con-
ditions are improved. We will not succeed in creating such a system by the per-
formance of effective and efficient government agencies alone.3 Moreover, it is
arguable that this effectiveness and efficiency is unattainable without the coopera-
tion of the people.4
However, it looks as though not all people are playing their part in Mexico.
In the electoral field (INE-COLMEX 2015), the participation of Mexicans is
acceptable on election day (62%), compared with countries like Germany (72%),
Spain (69%), USA (68%), Canada (61%), France (55%) and Chile (49%). But if we
extend this field to other areas where people can express their political opinion, that
participation plummets.
Even though Mexicans have been able to propose legislative initiatives since
2012, they have exercised this right just ten times (Murillo 2017). Also, for the last
six years they have been entitled to ask for a popular consultation on topics of
national concern, but they have never requested one.5
People can additionally choose what kind of projects should receive public funds
in some federal entities. But just a small percentage of them participate in these
2
It is accepted that the ideal of epistemic autonomy in all citizens is just that – an ideal; but there is
a belief that any democracy needs a balance among its population, whereby some of them would
come closer than others this ideal.
3
This chapter is not suggesting that institutions don’t matter. They do, but even from the insti-
tutionalism perspective, political scientists and philosophers have dropped the classic treatment of
political institutions and now they admit that it is necessary to look beyond arrangements of
representation and government and to expand the analysis to social organization (Lowndes/
Roberts 2013; March/Olsen 1989).
4
See Chap. 2 to explore some arguments on this topic.
5
Political parties have tried to use the constitutional consultation, and President Lopez Obrador
sounded out public opinion to define some of his projects before beginning his term in office.
civic exercises – for example, just 3.82% of the voters in Mexico City showed up in
2016 (IEDF 2017).
Also, only 10% have shared political information on social media, 9% have
signed a protest document and 6% have been part of a public demonstration
(INE-COLMEX 2015).
Moving on from the political field to other public affairs, the result is no better.
The prosecution of crimes sometimes requires people’s reports, and even if their
evidence is not essential it strongly helps to clarify the investigation. However,
Mexican victims report just 6.8% of the crimes they have suffered (INEGI 2018a).
Mexico is in 135th place out of 180 countries on the Corruption Perceptions
Index 2017 (International Transparency), and 62% of Mexicans have had contact
with or heard about a corruption act. However, only 5% denounced it (INEGI
2017).
Public policies depend on tax collection. Nevertheless, 57% of the Mexican
population works informally, avoiding taxes (INEGI 2018b).
Earlier I stated that we need not only people’s participation in public affairs, but
also individuals’ cooperation in community life.
However, it appears that a large group of Mexicans are not interested in this sort
of exchange. For example, 46% of people have never been a member of any kind of
social organization (INE-COLMEX 2014). Maybe this correlates with 87% of
Mexicans believing that you have to be careful before trusting people, 40% thinking
people will try to take advantage of you if they get a chance and 18% feeling you
should not trust your neighbor at all – this last percentage is double the distrust
percentage of the world percentage (WVS 2018).
Furthermore, 20% of Mexicans have been discriminated against and 23% have
been denied the exercise of a human right (CONAPRED 2017) because of a per-
sonal condition or preference. For example, it is estimated that women earn 34%
less than men for identical jobs (Solís 2017).
This data shows how Mexicans are not actively participating in public affairs –
neither electoral nor other sorts. It is difficult to affirm that our electoral democracy
is doing well when this data is contrasted with the deliberative democracy
conception.
It also demonstrates that a huge group of Mexicans are not cooperating with
public agencies, which is affecting crime prosecution and therefore security; tax
revenues and thus public budget; and the labor market and hence social security. It
also reveals that there is considerable indifference to cooperating in community life,
and there is a worrying level of distrust and discrimination, which impacts on
people’s economic, social and cultural life.
Therefore, if you agree that this participation and cooperation are essential for
the rule of law, you will think that some kind of obligation should exist. In the next
section I will argue for a moral obligation to participate and cooperate, beyond a
concrete legal obligation that could apply in some of the aforementioned cases.
9.2.2 The Extent of the Principle of Fairness
This section will explain the moral obligation to participate in public affairs and
cooperate in community life, derived from the Principle of Fairness. But first it is
important to clarify what an obligation implies.
An obligation (Brandt 1964) generally involves (a) an action from one indi-
vidual; (b) two parties – the aforementioned who has to perform the action and
another person for whom the action has to be done; (c) a previous action – promise
or transaction – that generates the obligation. For example, if I promise to take you
to the airport if you leave on a Sunday, I will have an obligation to take you to the
airport next time you travel on a Sunday. And this also implies that you have a right
to require me to take you to the airport when you travel on a Sunday.
In that sense, when Hart held that those persons who have jointly made an
individual effort to bring about a collective good “have a right to a similar” effort
from anybody else who has enjoyed the benefits of that good (1955: 185), he also
meant that the latter has an obligation to make a similar effort for the persons who
acted jointly to bring about the collective good. For example, suppose you and a
colleague agree to buy a coffee machine for the office and to split the cost of any
repairs. According to the Principle of Fairness, if I want to drink coffee from that
machine, I will have an obligation to pay you a proportional fee. It will be unfair if I
enjoy coffee for free from your machine. The Principle of Fairness appeals to “the
just distribution of benefits and burdens” (Lyons 1965: 164).
However, to maintain a fair balance it is not always necessary to limit your
liberty by encumbering you with an obligation. There are different possible
movements to assure fairness (Klsoko 2004): (a) restructuring things in such a way
that you don’t enjoy the benefits of the collective good; (b) liberating the rest of the
group from their mutual restrictions; or (c) sharing the restrictions that are required
from the group to bring about that collective good. Returning to the case of the
coffee machine, you and your colleague can lock it up every time you finish using it
so that I won’t be able to enjoy your coffee unless you invite me. Or, imagine that
before you buy the machine, your boss decides to offer the employees free coffee,
avoiding your sacrifice. Only if it is impossible to apply (a) or (b) will one have an
obligation of the kind of (c).
It is this logic that is used to support the argument that members of a specific
community acquire a moral obligation to perform some participation and cooper-
ation that generates and maintains the rule of law. However, the argument is not
straightforward since public goods are not strictly equivalent to collective goods
because there are different categories of them and multiple ways to generate them.
Collective goods are goods generated jointly by two or more individuals. In
contrast, public goods (Olson 1965) are collective goods that have two main fea-
tures: (i) enjoying the benefits of a public good doesn’t threaten consumption for
other members of the community; and (ii) if the good is available to one, it is
available to all the members of the community. For example, if we talk about
national border security, it doesn’t make a difference if you or a thousand more
people enjoy its benefits. Securing national borders will have the same effect – no
one without a passport is entitled to cross the border. But also, if the government
offers national security by policing the borders, it will be impossible to exclude you
or more people from the benefits of that action.
It has been mentioned that participating and cooperating in community life is a
moral obligation derived from the Principle of Fairness for bringing about the rule of
law and its benefits. In this way, the Principle of Fairness would avoid free-riders of a
public good.6 Nevertheless, it is necessary to justify why some public good derived
from the rule of law should be included, since, for some authors, it makes no sense to
argue for an obligation of this kind if the collective good is non-excludable – such as
public goods – and one has received it without asking for it.
In this sense, Nozick (1974), in his argument for a minimal state, has rejected an
obligation to perform specific actions inside a community to bring about
not-requested public goods. He presents the case of a coordinated neighborhood
where 364 of its 365 members (you are the last member) sweep the street during the
year – one per day – in order to have a clean street. He criticizes those who try to
apply the Principle of Fairness to justify your obligation to sweep the street on the
365th day. Even if members of a community have restricted their liberty to jointly
generate the public good and you have been enjoying the benefits of that clean
street while living there, it doesn’t follow that you should have that kind of obli-
gation. Maybe you would prefer not to enjoy that benefit. Therefore, the impos-
sibility of avoiding the benefits of that clean street shouldn’t justify that kind of
obligation against your liberty – it would be ridiculous to close your eyes or
imagine a dirty street to avoid the benefit.
Otsuka (2017) offers a revised version of the Principle of Fairness to beat this
Nozickean objection. To do so, he presents the case of members of a community
living on a little shelf by a riverbank who have to raise a wall of sandbags to avoid a
flood that would otherwise cause their death. Therefore, they decide to raise the
wall. He argues that this public good, even if passively received by one of the
members of the community – received without that member’s consent – generates
an obligation on the basis of the Principle of Fairness. And this is because of the
urgency and essentiality of the good. Unlike a clean street, which can be considered
non-essential, it is vital that no inhabitants die from the flood, and it would therefore
be unfair to take advantage of the hard work of others without sharing the effort to
secure the benefit of that wall.
Klosko apparently agrees with that limit of the Principle of Fairness for public
goods. Such benefits should be indispensable to the individuals who have passively
received them. He also specifies, and in these next two points concurs with Arneson
(1982), that the balance between the received benefits and the required effort should
6
A free-rider is an individual who deliberately receives the benefits from a collective good without
doing their fair share to bring about that good (Arneson 1982). For a thorough explanation of the
free-rider concept, see Hardin (2013).
be positive – i.e. it would not be fair to require help to build the wall if it were
known that the wall wouldn’t stop the flood. And, at the same time, there must be a
balance of burdens and benefits among members of the group. Finally, we have to
consider that even if the benefits have been reached at one point, it is necessary to
maintain the fair share of them, since achieving things for the public good generally
requires an unbroken chain of coordinated actions.
At this point, it becomes clear why the Principle of Fairness also entails an
obligation to cooperate and bring about indispensable public goods. In the con-
tractualist view, someone who is properly informed will sound unreasonable by
rejecting a rule of this kind that represents some cost – one’s fair share – when other
alternatives impose more cost – death or putting oneself at risk of a deadly threat
(Scanlon 1982).
Klosko appears to agree with Otsuka’s limitation of public goods, because he
relates the qualification of essential goods with their indispensability. However,
Klosko’s idea is less restricted than Otsuka’s. Otsuka’s description of the flood case
is clear: the benefits of the wall are “vital and urgent” (2017: 12). If they don’t build
that wall, they will die. In contrast, Klosko widens the criterion a little and starts
including goods required by all individuals to enjoy a satisfactory life. Because of
their need to enjoy a satisfactory life, every member of the community will want, as
a rational being, to have those goods (Rawls 1999). But even if Klosko reduces the
list to public and not private goods, and later to “physical security… and provisions
for satisfying basic bodily needs”, he leaves the door open when he considers the
possibility of including “others as well” (2004: 40).
9.2.3 Citizenry, Democratic Life and the Principle

of Fairness
These positions have been recapitulated because they could be clear objections to
applying the Principle of Fairness to some public good that can be achieved through
citizenry participation in public affairs and cooperation in community life, like
sharing political opinions, reporting crimes or joining social organizations.
Nozick’s own example of the clean street will now be used to argue against the
limits he places on the Principle of Fairness. Maybe you agree with Nozick that it is
not vital or indispensable to sweep your street daily or periodically. But remember
that Nozick is thinking in terms of a minimalist state, in which case there wouldn’t
be any public cleaning services. Therefore, if you and your neighbors don’t clean
your street, nobody else will. Litter will accumulate and flies, cockroaches, and rats
will proliferate, bringing diseases. In a neighborhood with no public cleaning
services, residents need to cooperate in order to keep the street clean. One can
object, “Well, no cleaning will be necessary if neighbors don’t litter”. But even
then, cooperation to clean the street will be necessary because animals in the
vicinity – e.g. birds and foxes – die, tourists litter and other scenarios could threaten
the health and well-being protected by clean streets. The relevant benefit to justify
the application of the Principle of Fairness is the impact of that clean street on
neighbors’ health, not on how it looks.
Now let’s take the case of a community with more than a minimal state. Some
people, using Otsuka’s criterion, could object that there is no need to involve
neighbors in keeping the street clean in order to secure healthiness. Moreover, there
is no urgency. Well, somebody could disagree again because this may be true for a
regular European city, but not necessarily for other kinds of cities or towns. Let’s
look at a small town where the public budget is reduced and government employees
are few – just enough to maintain security, the medical center, the school and the
construction/renovation of one public space every year. This political community
will require the cooperation of neighbors to ensure healthiness. And even if not
urgent now, it will become urgent at some point, and that point will be cyclical.
Let me introduce a real-life example related to health. In tropical countries,
during the rainy season, the threat of mosquitoes and mortal diseases such as
dengue is commonplace. It is therefore necessary to avoid leaving water storage
containers in backyards as they are mosquito breeding grounds. Even if the gov-
ernment supplies medicines or fumigates towns, this standing water will be a threat
to neighbors’ health. A coordinated action of the neighbors is necessary to avoid
such threats, and it is fair that each neighbor does his or her share – removing items
that can harbor eggs – to enjoy the benefit of healthiness.
In sum, the problem with Nozick’s rejection of the obligation to maintain a clean
street is that he takes only the simplest benefit from it. The problem of Otsuka’s
case to develop a criterion of vitality and urgency is that he presents an extreme
case where nobody will refuse the vitality and urgency of the good and he over-
looks the unbroken chain of coordinated actions that are necessary to sustain goods
of this kind, and that could mislead people to reject public goods like a clean street
from their classification.
A similar objection can be made to Klosko’s analysis of the Principle of
Fairness’s application using cases that involve physical security. In extreme cases,
nobody will reject the indispensability of the public good, but I have just demon-
strated that cases with more nuances can challenge the limited application of the
Principle of Fairness and that there are more than extremes or catastrophic cases in
real life.
It could be said that Klosko accepts the application of the Principle of Fairness
beyond essential public goods. He agrees that there could be an obligation to
cooperate in the generation of other ‘discretionary’ public goods (2004: 86) when
they are necessary to provide an essential one. I will not reject this argument, but I
think he has other kinds of goods in mind with his indirect argument defending the
application of the Principle of Fairness when it is practically indispensable to
provide some discretionary public goods in order to generate the essential one. For
example, he mentions that national security will require a transportation and
communication infrastructure. In this way, he is thinking about an interdisciplinary
cluster of public goods, but in this part of the presented argument, this particular
chapter is not.
I believe that some public goods are directly related to the essential public good.
They could be called “quasi-essential” public goods; i.e. goods that are a necessary
but not sufficient condition to ensure the essential public good.7 In the aforemen-
tioned examples, the clean street and the avoidance of breeding grounds are those
quasi-essential public goods. They don’t guarantee the healthiness of a neighbor-
hood, but they are necessary to guarantee it, because of the direct relation that exists
with the healthiness.
Practical objections could be presented against my argument. It could be held
that opening the list would demand us to consider as essential or quasi-essential
dozens of public goods, a number too demanding to sustain. Requiring people to
cooperate to pay taxes for essential public services such as the armed forces, and to
develop an attitude to participate and cooperate for quasi-essential public goods
such as clean streets, would diminish their liberty to decide their plan of life. “And
surely you don’t want that.” And indeed, that is not the purport of this paper. My
point here is only to show that more than those extreme essential goods are nec-
essary to have a satisfactory life. And even those extreme essential goods can
appear not that essential for some communities. For example, Costa Rica is a
country without an army, a national public good that I am sure is seen as vital and
urgent for countries such as the USA and Russia.
People’s cooperation in community life is also a necessary obligation to bring
about some discretionary goods that are indirectly connected to essential public
goods: those goods that are part of the “basic societal infrastructure” (Klosko 2004:
88). For example, Klosko views as discretionary goods a basic level of public
education and a policy that maintains a stable economy. In the same way, people’s
cooperation can generate social capital through habits that reinforce the network
among members of different communities. The custom of students sharing relevant
information about previous experiences at a university could develop into an alumni
society. The habit of reporting crimes could lead to a victims’ association. It has
been said that social capital is a necessary good to sustain the democratic system
(Putnam 2000) – and if you accept a thick conception of the rule of law, you will
agree that democracy is vital for our liberties, including personal freedom. This
example demonstrates the diverse nature of the cluster of interdisciplinary discre-
tionary public goods that are necessary to bring about an essential public good.
An objection to my application of the indirect argument is that I could be forcing
the necessity of those discretionary public goods to bring about essential public
goods. Some could say that periodic and authentic elections guarantee democracy,
period. But even Klosko recognizes the ‘fraught’ area that we enter when analyzing
the connection between essential and discretionary goods, the multiple ways to
bring about essential goods and the deliberative process that every community
should follow to define them (2004: 89). Therefore, it is valid to consider discre-
tionary goods such as social capital.
7
To examine further the difference between conditions that are necessary, but not on their own
sufficient to bring about the desired results, see Mackie (1965).
It could be argued that including all these public goods justifies perfectionism,8 a
mindset which this chapter is not proposing to endorse. However, as Klosko
mentions (2004), we value different public goods in different ways, qualifying
violations of them to different degrees. The law considers not paying taxes to be
worse than ignoring a traffic sign, even if disregarding the sign could be more
dangerous and obeying it more crucial for an essential good such as personal
physical safety. In the same way, I am convinced that some ways of cooperating
with community life have to be protected by the political structure and others
should not be. Moral – not legal – obligations are sometimes enough.
Another objection that could be raised in response to my argument in favor of
moral obligations is that such an obligation might successfully bind people where
the rule of law is actually ruling, but why should it bind people where impunity,
crime and violation of human rights are a constant? There are people who are not
enjoying the benefits of a public good such as the rule of law. However, the
argument for a moral obligation still stands because I started this chapter assuming
that we aspire to establish a general rule of law in Mexico and I have used cases
where members of a community have to do their fair share to bring about a public
good, just as Mexicans need to do.
Commensurate with my arguments is a revised version of the Principle of
Fairness: when an individual enjoys a benefit available to everybody and this
benefit exists just because of the sacrifice of others, that person has an obligation to
do his or her fair share to maintain that benefit, if that benefit is necessary and
directly connected to an essential benefit, even if this benefit is received passively.
That means that we are morally obliged to participate and cooperate to guarantee
those public goods related to democratic life when that collaboration with the State
and community is necessary to accomplish the rule of law.
9.3 A Starting Point: Strengthen Civic Education Policy
The individual moral obligation to participate in public affairs and cooperate in

community life finds its base in the Principle of Fairness: if people value the rule of
law, democratic life and their human rights, it is necessary to do their fair share to
sustain that regime. Participating in public affairs (voting, paying taxes, reporting
crimes, getting involved in public debates, etc.) and cooperating in community life
(not discriminating, being part of organizations, collaborating with neighbors) is
that fair share. In John Stuart Mill’s words (1861):
… that political machinery does not act of itself… The people for whom the form of
government is intended… must be willing and able to do what is necessary to keep it
standing. And they must be willing and able to do what it requires of them to enable it to fulfill
its purposes. The word “do” is to be understood as including forbearances as well as acts.
8
Perfectionism as a moral theory demands us to take care of perfection in human life. For a general
review of perfectionism, see Wall (2012).
However, it has been shown that people in Mexico are not doing their fair share
and this has negatively affected the rule of law, democratic life and the exercise of
human rights.
Collaboration is insufficient to produce a State where the law rules, people enjoy
their liberties, and economic, social and cultural life continuously improves.9 It is
necessary for individuals to do more to achieve that goal.
Thus, if Mexicans have a moral obligation to participate in public affairs and
cooperate in community life as members of a State aspiring to ensure the rule of
law, but we as members of the community are not recognizing that obligation, wide
civic education programs will be necessary to generate the required mass culture.
There is a necessity for a social ethos that “informs individual choices” (Cohen
2008: 16).
A wide conception of rule of law demands a series of values, beliefs, attitudes
and orientations from citizenry. To consolidate and maintain democracy, it is
necessary to develop a mass political culture, and its development cannot be
assumed (Diamond 1994a). Citizens need to be aware of their political system, their
rights and obligations and how they could affect political processes, public policies
and outcomes. If they live in a representative democracy, they must select their
representatives and state their needs and preferences. Individuals should be able to
access information that relates to public affairs and should have the capacity to
analyze that information.
But that culture also requires a broader culture, a civic one, that nudges indi-
viduals to cooperate and fosters social trust.
This conception of civic culture is closely related to what Almond/Verba (1989)
understand as a set of norms and attitudes of the political elites, but also of the
ordinary people who live in a political society. They describe their conception of
civic culture as the required political culture “plus something else” (Almond/Verba
1989: 29), underlining the relevance of trust, cooperation, solidarity and compro-
mise among members of the community in general, and adding from Lasswell’s
communication model (1948) an inclusive attitude toward individuals and values.
My concern to highlight that kind of program takes into account the fact that for
the last twelve years the Mexican Government has concentrated its efforts on a
security and criminal justice strategy. Congress has approved different reforms,
Executive has spent millions of pesos, Judicial has trained thousands of people – yet
crime, corruption and impunity are still in the news every day.
But security and criminal justice are only two of the many elements of the
institutional areas that validate the rule of law. In the World Justice Project mea-
surements, for example, they constitute just two of the eight factors (see Chap. 2).
9
There are other factors which affect the status of the rule of law in a nation, such as historical
experience, international influence, socio-economic changes and a strong migratory flow.
Therefore, it is time to invest more in those who have to take part in the
deliberative process of public affairs and who could affect other people’s rights and
life: Us.
Decades ago, Almond and Verba identified a large gap between what people
from non-stable democracies – including Mexico – believed they should do, they
could do and they actually do. Moreover, they underline this gap in the country as
the “most interesting imbalanced pattern of commitment and involvement”
(1989: 363).
This gap is still present in the country. For instance, even though 71% of the
population thinks cheating on taxes is never justified, only 43% pay their taxes.
Although 73% of Mexicans strongly believe it is wrong for someone to receive a
bribe in the course of their duties, 62% have experienced or heard about a cor-
ruption act but not denounced it. Additionally, 68% of Mexicans think it is
important to do something for other people, but only 48% believe unselfishness is
an important aspect of children’s education, and just 18% mention that the
Government should care about progressing toward a less impersonal and more
humane society (WVS 2014).
That gap is also present in the political field: 75% of the population thinks it is
important to develop in children the feeling of responsibility, 64% believes
democracy is essential to protect people’s liberties and one in every four Mexicans
believes that the Government should give people more say in important public
decisions, but just 8% of the citizenry it is very interested in politics, only 10% has
shared political information on social media, 9% has signed a protest document and
6% has been part of a public demonstration (WVS 2014).
Civic culture helps to maintain a balanced and responsible government. Once
again, a State doesn’t need people to participate in politics all the time, but when its
government is not working properly, if people don’t believe they should do
something, they won’t do it, and without accountability that government that is
working poorly, inefficiently or against people’s interest, will continue on that path.
Almond and Verba (1989) also linked political participation with social
participation and attitudes toward fellow citizens. If individuals don’t trust other
people, how would they participate in political actions? How would they stand
together in front of the Government?
In ordinary circumstances, these people would trust their government and focus
their attention on their personal business. But when public agencies are threatening
the public common good, people will demand a change in public policies.
Mexico’s civic education policy has been through seven stages during the
twentieth and twenty-first centuries (INEE 2018): as a nationalist course (1908–
1971), as part of the Social Science course (1971–1993), as a citizenship course
(1993–1999), as a civility and ethics course (1999–2006), as a comprehensive
program focused on the development of competences (2006–2011), as a reloaded
version of that program directed to the individual, ethics and citizenship (2011–
2017), and finally, with the new model of education approved in 2017, as a for-
mative process that starts in preschool and finishes in high school. Before this last
stage, this policy only focused on elementary and secondary school.
Despite this, that policy has been qualified as ineffective (Morales/Martínez

2012) or insufficient to develop the required cultural path (Booth/Seligson 1994).
Mexico is one of the bottom three countries out of twenty-two states evaluated on
civic knowledge, and this poor performance could be related to a higher approval of
antidemocratic attitudes and illegal behaviors (INEE 2016).
Mexico needs to change that pattern of behavior, and it looks as though what the
Government has done is not enough.
At a time when the President of Mexico is announcing a Moral Constitution,
Mexicans feel part of a community, but we don’t trust that community. As a
consequence, we don’t invest our time and money in that community. And, without
the cooperation of the people, a government cannot raise the rule of law.
Silvia Conde stands for a policy of “pertinent, critical, practical, relevant and
humanist formation” for the Mexican population (2017: 54).
Schools and universities have a transcendental role to play in this task by
internalizing norms and values, generating identity and beliefs, and developing
social and political participation skills through new ideas, knowledge and inno-
vative curricula. For example, in the United States, the Stone Brook University
School runs a project on news literacy to develop in students the required skills to
analyze the information they constantly receive through social media and traditional
media (Klurfeld/Schneider 2014). These skills are required to counteract fake news
and the radicalization of people’s perspectives. If individuals are able to acquire
these skills it could diminish some of the distrust in fellow citizens that is generated
nowadays, and empower them to participate in political and social processes.
The task of equipping people with these skills should not be confined to the
education system, because the civic culture we should foster includes attitudes and
feelings that are harder to learn in the classroom and best developed through regular
social experience.
Therefore, a strategy of this kind should involve institutions like autonomous
organizations from society, independent agents of cultural change related to social
education and the promotion of legality, democratic and human rights culture, and
government agencies like the National Electoral Institute (INE), the National
Council Against Discrimination (CONAPRED) and the Ministry of National
Affairs (SEGOB).
People need experiences more than knowledge to develop a culture of civility.
Therefore, different institutions need to be involved: family, workplace, social
groups and associations, churches, labor unions, neighborhood committees.
Institutions where people live their daily lives and can learn about support and
solidarity. Social spaces where children, youths and adults can get used to listening
to discussions about politics and government.
In Germany, for example, labor unions, churches and political parties receive
public funding to develop programs related to civic culture. These three institutions
offer diverse circles of community life where people seek and find professional,
spiritual and political experiences.
Maybe these institutions are not the best options in Mexico, but we could call on
business associations, neighborhood committees and community centres to coop-
erate in this task.
Reich (2016) describes how foundations working with private or public funds
can support democracy, using pluralist and innovative arguments, and Lamarche
(2014) adds the criteria of transparency, effectiveness, integrity, and inclusion.
There are also good examples of society working on matters such as neighborhood
design (RESIDential Environment Study 2018), the promotion of groups for mutual
support (Society for Community, Research and Action 2018), and multicultural
integration (9 Barris Accul neighbors’ association 2018).
The role of autonomous social groups in fostering a civic culture and supporting
democracy has already been explained in recent decades (Diamond 1994a, b;
Sadowski 1994; Putnam 2000); however, in Mexico, these kinds of organizations
need to strengthen their institutional design and cover other cities in addition to the
capital.
Government agencies should build up a strong partnership with social groups, as
the INE tried to do a couple of years ago via the National Strategy of Civic Culture
(2016). Sadly, this document didn’t become a fundamental public policy because of
the lack of budget to develop it, among other reasons.
This is not the place to delineate the contents of that policy,10 but the diversity of
subcultures that exist in Mexico should be underlined, and this requires recognition
of political subcultures as well. Therefore, it will be necessary to involve regions
and local communities in the process of defining the values, attitudes, beliefs and
orientations that should be reinforced or discouraged without losing the desired
balance in the country.
Another benefit of civic education for individuals and community life is that this
kind of formative policy could develop the virtue of reciprocity, a virtue that is
relevant for human flourishing and living together, taking into account that our
social nature coexists with a liberal self-centred culture nowadays.
Aristotle appealed to virtues as a necessary, but not sufficient, condition to reach
happiness (Hursthouse/Pettigrove 2016). In this sense, there is a relationship
between the sociopolitical structure, the individual’s behavior, the common good
and individual happiness. What I mean, in a nutshell, is that even the best basic
sociopolitical structure requires people’s help, and virtuous people are the kind of
help I imagine – people who show their excellent character traits through their
attitudes and actions (Foot 2002).
Specifically, reciprocity has been identified as one of the virtues required to
sustain a balance of spontaneous social exchange that will help to foster the
common good (including the rule of law) and individual happiness. In this chapter
10
Just to illustrate, Diamond (1994a: 12) takes from Inkeles a list of components for a democratic
culture: “flexibility, trust, efficacy, openness to new ideas and experiences, tolerance of differences
and ambiguities, acceptance of others, and an attitude toward authority that is neither blindly
submissive nor hostilely rejecting but rather responsible… even though always watchful.” But I
have said that civic culture is broader than a political culture; so we will need to add other attitudes.
Becker’s conception of reciprocity is used (1986), which, following Anscombe’s

requirement to describe a virtue through types of characteristics (1958), is based on
these maxims: One should return good for good and not return evil for evil. One
should resist evil received and restore evil done with good. The recipient of good
should return the favor and the doer of evil should make restitution. One’s returns
and restitutions should fit and be commensurate with the good or evil. One’s returns
should be made for any good received, even if it wasn’t requested. And one should
be willing to reciprocate because it is a moral obligation.11
When considering the relevance of this virtue for social balance, we must note
that there are some psychological states of mind related to this virtue. Virtues work
as correctives of our desires (Foot 2002); by maintaining a general reciprocal
attitude, an individual collaborates to sustain a social equilibrium, since people
grow up expecting to receive a proportionate good for what they have done. In the
same way, this disposition to return the good one receives and restore the evil one
does is related to self-esteem. Since people expect from others a general attitude to
reciprocate, when an individual fails to perform in this way, others start to see that
person as worthless for social interaction, and because individuals value their
self-worthiness, even if it is not the only factor, this can decrease self-esteem.
Conversely, behaving with a reciprocal attitude can strengthen a person’s
self-esteem (Becker 1986). Consequently, reciprocity as a virtue will reinforce a
social condition of self-respect, a very important primary good – the most important
for Rawls (1999) – because it reflects an individual’s value and boosts confidence,
making it easier to achieve life goals.
This is not an observation about the necessity of being altruistic. It is a call for a
self-interested attitude that recognizes the needs and interests of other people,
especially those who live in the same community. This civic virtue requires us to
have a helpful, respectful and trustful attitude towards each another (Putnam 1993).
Moreover, in the political arena, this attitude is perfectly aligned with the “ori-
entation to action” that Diamond (1994a: 8) describes as a component of political
culture, and the engagement in cooperative activity that Almond/Verba (1989)
identify as a fundamental mindset for sustaining democratic culture.
A culture of reciprocity is an essential component of harmonious community
life, and civic education is a good way to learn about citizenship and help people
develop the character traits that foster reciprocity and other civic virtues. It therefore
follows that civic education should be promoted in every community as a vital tool
in the process of understanding the moral implications of living together and
inculcating a spirit of public mindedness.
11
This kind of disposition relates to the communal reciprocity presented by Cohen (2009).
Recognizing that we live in a world where everybody needs help from other people, you choose to
have the disposition to maintain the social balance of exchanges because of another individual’s
needs and, at the same time, because of your own need of their help. Returning good for good in
this form of reciprocity implies recognition of human social nature, whereby I notice your – and
my – limits and decide to continue with this virtuous social balance that you need to reach your
happiness and that will allow you to help me reach mine.
The aim of the rule of law is to expand the enjoyment of human rights. This is
how political authorities and structures justify their existence. The more liberties a
society can exercise, the more legitimacy the State has. The fewer opportunities,
essential goods and security individuals have in a society, to the detriment of
people’s rights, the more complaints will arise in the State, generating instability
and affecting the State’s legitimacy (Abreu/Le Clercq 2011).
However, the political structure cannot guarantee the common good or enable
everybody to flourish without the cooperation of society. A constitution secures
liberties, but does not secure the best use of individuals’ liberties. Moreover, it does
not secure adequate exercise of those liberties in favor of the community; rather, it
encourages selfishness (Isensee 2011). This individualism should be balanced by a
public spirit that ensures the common good (Diamond 1994a) through the coop-
eration of a civic community (Putnam 1993).
Even the best political structure is insufficient to assure well-being and happi-
ness. The attitudes and behavior of individuals can have a profound effect on other
people’s well-being and happiness, making cooperation, collaboration and re-
ciprocity essential aspects of community life. People need to cultivate a much
greater willingness to participate in community endeavors, and promoting a wider
civic education policy for living together under the rule of law is the starting point.
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Chapter 10
The Challenge of Developing a New
Human Rights Culture in Future
Mexican Lawyers
Eduardo Román González
Abstract The 2011 constitutional amendment on human rights had a profound

impact on the Mexican legal system. This impact needs to be reflected in the legal
education that future lawyers receive. This paper analyzes the main challenges
posed by the reform for Mexican law schools to provide a new generation of
lawyers with a greater culture of human rights awareness, who are more sensitive
and better prepared, both in knowledge and skills, to advocate human rights cases.
! ! !
Keywords Culture Human rights Challenges Legal education Lawyers ! !
! !
Mexico Constitutional amendment Law schools Teaching Rule of law! !
10.1 Introduction
In 2014 the First Chamber of the Mexican Supreme Court ratified the amparo en
revision 4102/2013 – two years after the constitutional amendment of human rights
of 2011, in which the incompatibility of national law with the Universal Declaration
of Human Rights was alleged. The First Chamber ruled that the provisions of the
Declaration “invoked in isolation, cannot serve as a parameter to determine the
validity of Mexican legal norms, as it does not constitute an international treaty
signed by the Federal Executive and approved by the Senate.” (SCJN, T.A. 1a.
CCXVI/2014 (10a.)).
Doctor in Law, Government and Public Policy from Universidad Autónoma de Madrid, Spain;
Coordinator of Research at CEEAD, a Mexican independent research center focused on legal
education; Professor of Constitutional Law, Human Rights and Public International Law at
Facultad Libre de Derecho de Monterrey and Tecnológico de Monterrey, Monterrey Campus;
Member of the Mexican National System of Researchers (Sistema Nacional de Investigadores,
SNI) E-mail: [email protected].

https://doi.org/10.1007/978-3-030-31314-2_10
176 E. Román González
That same year, a Federal Circuit Court ruled that the test of compatibility
between a national law and a human rights treaty – the so called, conventionality
review – “is carried out in substitution of the deficiency of the internal regulations”.
That is to say, that the judge must first analyze how the human right in controversy
is recognized in the Constitution and Mexican law, and only when he or she
concludes that the human right is either not protected at all or is not sufficiently
protected is it justifiable to carry out the conventionality review (TCC, T.J. (III
Región) 5o. J/8 (10a.)).
More recently, another Federal Circuit Court has held that the principles of
universality, interdependence, indivisibility and progressiveness of human rights,
established in Article 1 of the Mexican Constitution, are not applicable to personal
freedom, since, although it is a fundamental right, it cannot be considered a human
right (TCC, T.A. I.10o.P.13 P (10a.)).
The above are just three examples – of the many that we could document – of
misconceptions of human rights law after the 2011 constitutional amendment on
human rights. This reflects a lack human rights culture between legal operators,
such as lawyers and judges, but also a lack of basic notions of human rights that
should be acquired in law school, especially after the above-mentioned constitu-
tional amendment.
The challenge of making the content of human rights reform a reality for all
Mexicans is huge because it implies, among other things, a cultural change among
legal operators. A cultural change that must be promoted by law schools. In this
paper, I point out some of the most urgent challenges that Mexican law schools are
facing in relation to human rights teaching in order to promote a new human rights
culture among future lawyers.
10.2 Legal Education and Human Rights Culture
For several years, legal education in Mexico has been facing two major problems.
First, the uncontrolled growth of the number of law schools and the lack of
mechanisms that guarantee the quality of the legal education and the optimal
preparation that its students are receiving for professional practice. Second, the
traditional teaching techniques that are used in Mexican law schools and their
effects on the legal profession.
10.2.1 The Uncontrolled Growth of the Number of Law

Schools and Their Quality
According to the most recent Center for Studies on Teaching and Law Learning
(CEEAD) data, in the 2017–2018 academic year there were about 1,822 law
10 The Challenge of Developing a New Human Rights Culture … 177
schools in Mexico. This number continues to grow, with one new law school every
week, which is the rate of growth since 1991 (CEEAD 2017; CEEAD 2018a).
Mexican States like Guerrero, Guanajuato and Nayarit have more law schools than
Germany, Spain and Canada, respectively (CEEAD 2014).
Although there is no official data about the number of new lawyers per year,
some information related to the expedition of licenses to practice law (cédulas
profesionales)1 is available. CEEAD (2018b) estimates that in the period between
2010 and 2014, approximately 179,790 new licenses to practice law were expe-
dited. Also, the Mexican Supreme Court (@SCJN, 2017) published through its
Twitter account an infographic which indicated that the number of licenses to
practice law in ten States was more than 500,000. In contrast, information published
by INEGI (2016) indicates that in 2016 the number of people employed as lawyers
was approximately 342,000. The disparity between these figures can be explained
by the well-known fact that many people who study law do not practice it
professionally.
The above data makes it possible to estimate the number of people dedicated to
the legal profession. In a country like Mexico, with high levels of corruption, a low
degree of rule of law, and with multiple human rights violations, it may not seem a
bad idea to have many lawyers. If we also consider, as demonstrated by Pérez
Hurtado (2009: 103), that a high percentage of future lawyers enter law school with
the desire to help other people and make a change, it could be thought that the large
number of lawyers who are authorized each year to practice law will contribute
significantly to solving some of the country’s major problems.
Unfortunately, the high number of law schools and lawyers has not led to a
greater strengthening of the rule of law, or to an improvement in the human rights
situation. This is a clear indicator that something is not working in legal education
and the access to the legal profession. Therefore the problem, as pointed out by
Garza (2017), is not whether the number of lawyers we have is too many or too
little, but whether legal education and the mechanism for access to the practice of
law guarantees the quality of the legal profession. We believe it does not, since the
requirements to open a law school are relatively easy to fulfill and the procedure
itself does not guarantee the quality of the content of the program or the quality of
professors. Another problem is the absence of any mechanism to guarantee that new
lawyers have the necessary knowledge and abilities to practice law.
The high number of law schools which were opened with very few requirements,
and of lawyers authorized to practice law without any additional requirement
beyond the university title, have magnified deep-rooted problems within legal
education, such as the use of traditional methods of teaching law.
1
In Mexico, the only requirement for practicing law is an undergraduate law degree from an
authorized institution. Once the person has the university qualification, he or she can obtain a
license to practice as a lawyer (cédula professional) through a simple administrative procedure at
the Federal Department of Education.
10.2.2 Teaching Law and Human Rights in Mexico
In most Mexican law schools, the kind of teaching methods used respond to the
idea of the teacher as the exclusive owner of knowledge, whose function is to
transfer it unidirectionally to the students. The education of future lawyers usually
encourages the memorization of content, but not the development of analytical
skills to understand how to face and solve legal problems (Magaloni 2006: 64–65).
The typical legal education that law schools offer in Mexico is, in general,
disconnected from the legal and social problems that the lawyer will face in
practice. This is because, as Magaloni (2003) points out, legal education is focused
mainly on the theoretical and conceptual study of norms, and teaching methods
emphasize memory over the development of any other skills in the students. In this
educational system, “the law student dedicates most of his education to knowing the
set of rules that make up the system, to deciphering its possible meaning in the
abstract and to organizing the normative material in a coherent, complete, logical
and without contradictions system” (Magaloni 2003: 3).
This way of teaching law is inadequate for the teaching of human rights and for
the purpose of generating a culture of human rights in Mexican lawyers because, as
García and Vaño (2015: 13) point out, human rights cannot be learned; they must
be apprehended. Here reiteration, literality, even memory do not work, if what is
desired is that students have their own critical capacity and are able to autono-
mously investigate the context and background of each problem, confront debates
and support opinions, exchange opinions, know the main mechanisms and causes
of complaint and act to safeguard them beyond official rhetoric.
Indeed, if the purpose is to educate lawyers with a greater human rights culture
and knowledge, it is necessary to be sensitive to the problems of serious and
systematic violations of human rights that our country is facing. And this can only
be achieved if the teaching of human rights is done in a contextual way, analyzing
the application of the human rights law to concrete cases and, above all, making the
future lawyer see the usefulness of human rights law in preventing or remedying
injustices. The abstract study of human rights law sensitizes very little, and does not
allow students to notice the real extension of a right that is reflected in concrete
cases (Asúnsolo et al. 2016). In this sense, Escamilla/De la Rosa López (2009) have
argued that human rights are experienced as a human condition of citizens, both in
the public sphere and in the private sphere, and therefore “cannot be taught as
transmission of contents to be memorized decontextualized from those living
conditions” (Escamilla/De la Rosa López 2009: 59).
In general, there are many historical deficiencies in Mexican legal education,
and, in particular, in the teaching of human rights. The result of this is that Mexican
law students do not receive pertinent education in human rights law, and, much
more important, they do not develop a human rights culture at law school.
The implications of the 2011 constitutional amendment on human rights urges us
to transform the teaching of human rights in Mexican law schools. Next, I will refer
to some key aspects of the reform that, from my perspective, have the greatest
impact on the teaching of human rights.
10.3 The 2011 Constitutional Amendment on Human

Rights
The 2011 constitutional amendment on human rights establishes a new paradigm

for the Mexican legal system and this should impact on legal education, especially
in the teaching of human rights. The amendment introduces in the Constitution
some principles and contents that change the way of interpreting and applying the
law. In the following lines I’ll explain some of the most important.
10.3.1 The New Supremacy Clause
The 2011 constitutional amendment changes the Mexican supremacy clause of the
Constitution. On the one hand, Article 1, first paragraph, states that people who are
in Mexican territory are entitled to enjoy the human rights recognized by the
Constitution and the international treaties signed by Mexico. On the other hand, the
second paragraph of the same Article establishes that the norms related to human
rights must be interpreted in accordance with what the Constitution and the inter-
national treaties on human rights say, though it also asserts that the most favorable
interpretation of the law for the guarantee of human rights should apply (the so
called, principio pro persona).
That is to say that the new supremacy clause includes at the top level of the
hierarchy of norms not only the Constitution but also the human rights norms of
treaties signed by Mexico.2 Therefore, it raises the need to reinterpret the hierarchy
of norms in Mexico. Before the constitutional amendment the only relevant article
for the interpretation of the supremacy clause was Article 133, but after the
amendment this clause should be interpreted in conjunction with Article 1, since
this article gives the human rights norms of treaties the status of constitutional
norms.
It seems that there is a consensus in legal scholarship and judicial doctrine in the
sense that human rights norms from international treaties are part of the supremacy
clause. However, there is disagreement on the understanding of the way that norms
belonging to the supremacy clause interact with each other. We have two possible
2
It should be noted that the new text of Article 1 of the Mexican Constitution refers to human
rights norms in international treaties and not to international human rights treaties, thus contem-
plating not only treaties whose main object are human rights, but also the human rights norms that
should be found in international treaties of a different nature (Carmona 2011: 45).
interpretations: that all the norms of the supremacy clause have the same hierar-
chical level; or that the same hierarchy does not exist between those norms.
The first option implies that any hierarchical relationship between the Mexican
Constitution and the human rights norms from international treaties has been
erased. For some, like Arenas (2013), the supremacy clause includes any human
rights norm regardless of its source – such as, for example, human rights recognized
by the Constitutions of some Mexican States. From this perspective, any incom-
patibility between the norms that form part of the supremacy clause must be
resolved according to the pro persona principle (applying the most favorable
norm), because the hierarchies between them have disappeared.
The second option considers that the norms of the supremacy clause do not have
the same hierarchy, because the Constitution maintains a superior status in relation
to any other norm. From this perspective, any incompatibility between the
Constitution and any other norm of the supremacy clause must be resolved
according to the principle of constitutional supremacy. The Mexican Supreme
Court has taken a position in favor of this last interpretation of the supremacy clause
when resolving the contradiction of thesis 293/2010 (SCJN, P./J. 20/2014 (10a.)).
What I am interested in highlighting here is how the changes introduced by the
2011 constitutional amendment to Article 1 modify the hierarchical order of the
legal system to place the human rights norms recognized in international treaties
above any other legal provision, even international treaty norms relative to other
disciplines. Since the amendment, human rights, both those recognized in the
Constitution and international treaties, have been introduced to the supremacy
clause, functioning as a parameter for the validity of any other norm of the legal
system. This conditions the way that the legal system should be interpreted and
applied, making it necessary for existing and future lawyers to develop a better
knowledge of human rights law above all, a deeper culture of human rights.
10.3.2 Constitutional and Conventional Review
The constitutional amendment on human rights and the ruling of the Inter-American
Court of Human Rights (IACHR) in the Radilla case3 – in which the IACHR
ordered that all the Mexican judges should analyze the compatibility of the laws
they apply with the American Convention of Human Rights (ACHR) – forced the
Mexican Supreme Court to overrule its own doctrine of judicial review.
For several years, the Mexican Supreme Court established that only federal
judges could exercise constitutional review. After the constitutional amendment and
the Radilla case, the Mexican Supreme Court changed its doctrine to establish that
3
IACHR, Radilla Pacheco vs. Mexico (23 November 2009).
all judges – including state courts judges – should exercise a constitutional and
conventionality review in every case.4
For the Mexican Supreme Court, the implementation of the conventionality
review was inconsistent with the constitutional review model concentrated only in
federal judges. In its own words, “the ex officio conventionality review on human
rights should be in accordance with the general model of constitutional review”, so
it was necessary to recognize the existence of a new model of judicial review that
combines the concentrated and the diffuse review.
In its new doctrine, the Court established that exercise of the double review
(constitutional and conventional) should follow these three steps:
First, judges must interpret the law in accordance with the human rights rec-
ognized in the Constitution and international treaties signed by Mexico. Second,
when there are several reasonable interpretations of the law, judges must prefer the
most favorable interpretation for the protection of human rights. Third, if none of
the reasonable interpretations of the law are compatible with the human rights
norms (constitutional or conventional), judges must not apply the law to that case
(SCJN, P. LXIX/2011(9a.)).
Besides the methodology for exercise constitutional and conventional review,
the Supreme Court also defined the group of norms that must serve as a parameter
for that review. According to the Court, this group is integrated by the Constitution,
the constitutional interpretation given by the federal judges, the human rights
recognized in international treaties and its interpretation given by the official
interpreters of those treaties (international courts, commissions, committees, etc.)
(SCJN, P. LXVIII/2011 (9a.) y P./J. 20/2014 (10a.)).
10.3.3 Pro Persona Principle
The pro persona principle is an interpretive tool by which one must select the most
favorable norm, or, to use its most extensive interpretation, for the broadest pro-
tection of human rights. Also, this principle implies the selection of the more
restricted norm or interpretation when it concerns restrictions on the exercise of
human rights (Pinto 1997: 163).
This principle has several possibilities of application. The first one, says
Henderson (2004), refers to the application of the most protective norm. This occurs
when, in a specific case, it is possible to apply two or more current norms, national or
international, and, whatever their hierarchy, the judge must select the one that con-
tains a better or more favorable protection of human rights (Henderson 2004: 93).
On the other hand, Castilla (2009) points out that, in this case, the pro persona
principle allows the use of the most protective or least restrictive norm, depending
4
See: SCJN, Expediente Varios 912/2010 (14 June 2011).
on the case, regardless of their hierarchy. According to the same author, this
principle makes it possible to overcome classic arguments about whether the
national or international norms should prevail (Castilla 2009: 72).
The pro persona principle can also refer to the application of the most favorable
interpretation. This is a case of different application, since it does not refer to the
dichotomy of applying one norm or another, but different interpretations of the
same norm. There are cases in which a judge “is faced with a human rights norm
where there could be several possible interpretations, that is, when there is doubt
about a plurality of possible interpretations of the norm” (Henderson 2004: 96). In
these cases, the pro persona principle operates as a method of interpretive pref-
erence that implies “giving a norm that contains human rights its broadest inter-
pretation…or, the minimum possible interpretative scope if it is to limit or suspend
its exercise” (Castilla 2009: 76).
Finally, in what would be its most controversial dimension, the pro persona
principle can be used for the conservation of the most favorable norm. For some
authors, the pro persona principle can also be applied in cases of substitution of
norms, as an interpretive mechanism to preserve the one that is most favorable for
the protection of human rights, regardless of whether it is the norm that it is
intended to replace. In these cases, by applying the pro persona principle to a
substitution of norms, “a later norm would not repeal or disprove another previous
norm, regardless of its hierarchy, while the former establishes better or greater
protections that must be conserved for people” (Henderson 2004: 94). What is
sought with this criterion is the prevalence of human rights, “above rules of hier-
archy and temporality, in order to achieve the preservation of the most favorable
norms for the exercise of human rights” (Castilla 2009: 75).
The ICHR recognized this principle in its first decision on a contentious case.5 In
another decision, the Court ratified the application of the pro persona principle
based on Article 29 of the ACHR, in the sense that “if the American Convention
and another international treaty apply to the same situation, the most favorable
norm should prevail to the human person”. Therefore, if the ACHR itself estab-
lishes that its interpretation cannot imply the restriction of human rights recognized
more broadly in other treaties, it is not acceptable that the interpretation of other
treaties establishes restrictions for the human rights recognized by the ACHR.6
All the above changes require Mexican lawyers to acquire knowledge and
develop argumentative skills that are not typically taught in Mexican law schools.
On the one hand, the scope of protection of human rights is significantly
expanded by incorporating international human rights law at constitutional level.
Now, the Mexican lawyer requires greater knowledge of international human rights
law, as well as interpretative and argumentative skills for the correct application of
it.
5
IACHR, Viviana Gallardo et al. Costa Rica (3 November 1985), paragraph 16.
6
IACHR, Opinión Consultiva 5/85 (13 November 1985), paragraph 52.
On the other hand, human rights norms operate as parameters of validity in any
other law (criminal, civil, family, etc.). This is also an enormous challenge for the
Mexican lawyer, since human rights have a transverse effect throughout the legal
system.
The implications of the human rights constitutional amendment analyzed in this
section represent a huge challenge for law schools. Legal education and, particu-
larly, the teaching of human rights in law schools are key aspects of the success of
the amendment. If law schools do not change the way they teach human rights, it
will be impossible to achieve all the benefits that the amendment could have.
10.4 The Challenges of Human Rights Teaching
It is clear from the preceding discussion that there are great challenges for legal
education in general and human rights education in particular. These are challenges
that we have faced for many years but, particularly since the 2011 human rights
constitutional amendment, they have become more acute. Next, I will refer to those
that I find the most important in terms of the characteristics of legal education and
human rights education in Mexico, and the main changes introduced by the con-
stitutional amendment.
10.4.1 From Theoretical to Practical Teaching of Human

Rights
One of the main problems of legal education in Mexico, as already mentioned, is

the predominantly theoretical teaching, focused more on the study of the content of
the law than on its application to specific cases. The teaching of human rights has
not been exempted from this, and this is probably one of the main reasons why
Mexican lawyers are less sensitive to the identification of human rights violations
and not very empathetic with the defense of these cases. But it has also fostered a
significant technical deficiency in the interpretation and application of human rights
standards to specific problems.
Is not my intention to argue that the teaching of human rights cannot involve
some predominantly theoretical issues. For example, a recent book (Román
et al. 2017) suggests that, as part of the human rights course, contents such as
history, foundations, legal theory and critical perspectives of human rights must be
addressed. Nonetheless, it is important to specify that we propose its approach
based on activities that foster in students awareness of a critical analysis of pre-
dominantly theoretical contents.
Of course, it is essential that students know the content of both constitutional and
conventional norms where human rights are recognized. However, this knowledge
is only part of what is necessary for a lawyer to know about human rights. Another
fundamental part is the one that has to do with the different mechanisms and
procedures that serve to process cases of human rights violations, as well as the way
in which the authorities in charge of resolving these procedures are interpreting the
content of constitutional and conventional norms.
This, of necessity, implies the use of jurisprudence and legal standards related to
human rights, which results in a more practical than dogmatic approach to the study
of rights. It involves analyzing human rights not as static normative figures, but as
rules in action that, when applied to specific cases, display all their dimensions –
something which cannot be seen from abstract analysis of them in legal texts. Thus,
for example, the different dimensions and scope of freedom of speech can only be
appreciated when analyzing a specific case concerning the exercise or violation of
this freedom; it is insufficient to merely analyze the way it is recognized in con-
stitutional or international norms.
To introduce students to a practical approach to human rights, the lecture class,
which has been the traditional way of teaching law in Mexico, is insufficient. Even
when a lecture deals with the analysis of human rights in light of specific cases, it
does not allow students to develop critical analytical tools on their own for the
interpretation and application of human rights norms in specific cases.
Alternative pedagogical tools – such as the case method and, even better,
problem-based or challenge-based learning – are more effective ways to address the
content of human rights norms and the functioning of protection systems. These
allow students to not only appreciate the normative deployment of human rights in
specific cases, but also to develop a certain interpretation about the scope of these
human rights and the way they should be applied in specific cases.
This contributes to greater awareness among future human rights lawyers, since
it allows them to detect in real situations the possible violation of human rights as
recognized by the legal system, as well as to appreciate the legal system’s practical
utility for facing and solving social injustices. But it also contributes to better
technical training of the lawyer in terms of his ability to interpret and apply human
rights standards to specific situations.
Therefore, one of the main challenges in the human rights education of future
lawyers is to overcome the predominantly theoretical and dogmatic approach to
human rights, and instead implement a more realistic and significative way to teach
human rights, developing more sensitive lawyers who are better equipped to
identify human rights violations and technically better prepared to defend them in
real cases.
10.4.2 The Use of Different Sources of Human Rights
One of the great challenges faced by both teachers and students of human rights,
especially since the 2011 constitutional amendment, is to properly handle two
different sources of human rights: constitutional and international human rights law.
Each uses interpretive rules and principles that do not always coincide.
This is because human rights are recognized both in national (mainly in the
Constitution) and in international (mainly in treaties) norms. Despite our lack of
constitutional culture and our little experience in the management of a normative
Constitution, it seems to me that it is not the constitutional norms that represent the
main problems for Mexican teachers and students, but the still lower degree of
knowledge that we have regarding Public International Law in general and
International Human Rights Law in particular.
Thus, in the Mexican legal community, including academia, we are not as
familiar with the diverse sources of Public International Law or the principles of
interpretation of one of these sources: international treaties. Therefore, for example,
it is difficult for us to differentiate between an international custom and a rule of ius
cogens, between a declaration and an international treaty, between binding
jurisprudence and international soft law in the field of human rights. The legal
categories of Mexican law do not coincide with those of international law and this
causes difficulties in both understanding and applying international standards.
An example of this is found in the methods of interpretation. In Mexico, tra-
ditionally, the main method of interpretation of the law has been to resort to the will
of the legislator (González 2001: 244), a method that is not the main one for the
interpretation of treaties according to the Vienna Convention of the Law of Treaties,
where it has a subsidiary nature. In fact, in accordance with this Convention, the
preparatory work for the treaties – which would be the most similar to the leg-
islative debate where the will of the legislator is embodied – is something which,
for the purposes of interpreting the treaty, must be used only when all the other
rules of interpretation have been exhausted and the meaning remains ambiguous,
obscure, absurd or unreasonable.7 In other words, one of the most relevant methods
of interpretation for a national law is only a complementary method for interna-
tional law.
Another example of the different treatment given to the same source in the
national and international legal system is custom. At national level, custom is
usually of limited relevance: it is valid only in certain matters and to the extent and
with the conditions defined by law. In international law, by contrast, it is an
autonomous source from which general obligations can be derived for the entire
international community, and therefore has the potential to be a more widespread
legal force than treaties that only bind the parties.
From my perspective, neither law schools nor legal operators in general have
given this diversity of sources and interpretative methods the importance they
deserve. The consequence is several cases of sources of international law being
used incorrectly at national level, such as claiming in amparo an autonomous
violation of the Universal Declaration of Human Rights, as in the example referred
to at the beginning of this work.
7
See: Articles 31 and 32 of the Vienna Convention of the Lawlaw of Treaties.
In this sense, any human rights course taught in Mexican law schools should
take into account these differences and make them apparent to future lawyers, so
they can familiarize themselves with them and understand how to use both national
and international sources properly.
10.4.3 The False Dichotomy between Constitutional

and International Human Rights Law
Another problem facing human rights teaching in Mexican law schools is the
apparent dichotomy between Constitutional and International Human Rights Law.
This usually takes shape in various law degree programs that divide the teaching of
human rights by, on the one hand, establishing a course, usually mandatory, that
focuses on the human rights recognized by the Constitution and, on the other hand,
another course, usually optional, that focuses on international human rights law.
The new content of Article 1 of the Constitution, especially with the integration
of international human rights norms at constitutional level, and with the mandate to
interpret constitutional and international human rights norms harmonically, estab-
lishes the need to address the teaching of human rights simultaneously. Human
Rights courses whose approach is only constitutional or only international are no
longer meaningful or useful to future lawyers. Each right must be addressed at all
times in its double dimension (constitutional and international) because otherwise it
can easily fall into the error of interpreting rights incompletely by failing to consider
more advanced standards developed at constitutional or international level. The
relationship between constitutional and international human rights law is not one of
substitution – as judges seem to think in some of the cases referred to in the
introduction of this paper – where the international dimension of human rights
acquires relevance and meaning only when the national is insufficient or unsatis-
factory, but of reciprocal complementarity and this must be fully reflected in the
curricula of all law degrees.
From a practical perspective, it is also necessary to teach constitutional and
international human rights law simultaneously, since most of the legal problems
related to human rights that future lawyers will face will suppose the simultaneous
application of constitutional and international norms. For example, the arbitrary
detention carried out by a police officer supposes a violation of the arrested person’s
human rights that are recognized in both constitutional and international norms, and
in respect of which both constitutional and international courts and organizations
have developed standards that define its scope. With this reality faced by lawyers, it
is little use for students to analyze in one course the human rights recognized in the
Constitution and in another, if they decide to take it, the human rights recognized in
international law. It is as though a doctor were taught, separately, to cure a broken
arm and skin lesions, but never to attend an open fracture.
It is necessary, then, that law schools unify in one or several courses the
simultaneous teaching of human rights with both a constitutional and an interna-
tional approach. The only division that still makes sense regarding human rights
education is that related to the teaching of national and international protection
systems – a division that, in any case, should not lose sight of the generally
subsidiary and complementary character of international systems. It should also not
be forgotten that, ideally, national systems should be sufficient to effectively remedy
any violation of human rights. This is why law schools should encourage future
lawyers to acquire the proper knowledge and professional skills to operate both
types of systems.
10.4.4 Encapsulation of Human Rights in the Law Degree

Program
It has been mentioned above that the teaching of human rights in the training of
future lawyers is encapsulated in one or a few courses. This represents a problem in
a double sense.
In the first place, it is illusory to pretend that the teaching of human rights fits
into one or a few courses. One of the evolutionary lines of human rights is its
specification, which means the recognition of new human rights in contexts and
with respect to more specific groups.8 The constant signing of new international
treaties, as well as the multiplication of protection systems, implies a greater
number of international organizations that interpret these treaties, thereby gener-
ating new standards. The continuous expansion of human rights law makes it
materially impossible for one or a few courses to be sufficient for future lawyers to
enter this universe.
In the second place, human rights are present in virtually all areas of social life,
therefore it is very likely that some of them are present in the vast majority of legal
problems faced by lawyers. Of course, there are some areas of law, such as criminal
or family law, where the incidence of human rights is greater, but we can also see
their presence in almost any area of the law. Consequently, training in human rights
cannot be limited to one or a few subjects, but must be transversal throughout the
curriculum of the law degree. This means that law schools must review their
curriculum not only to incorporate more human rights subjects, but also to identify
in each of the subjects of the curriculum the human rights content that needs to be
incorporated in every course.
8
About this tendency, see: Peces-Barba Martínez (1999: 180–197) and Román et al. (2017: 29–31).
10.5 Conclusion
The 2011 constitutional amendment of human rights had a profound impact on the
Mexican legal system because it imposed a new way of interpreting and applying
legal norms under the paradigm of human rights. This necessitates a thorough
transformation in the way law is taught in Mexico. It is necessary for law schools to
contribute to the development of a human rights culture in future lawyers, providing
law students with the knowledge and an appropriate environment to develop the
professional skills needed for a better approach to human rights cases.
If the teaching of human rights in Mexican law schools does not change, the
2011 constitutional amendment is destined to fail or, at least, to limit its trans-
forming potential or dilute it for many years. A country like Mexico, with a serious
problem of systematic violations of human rights, cannot afford to waste any tool
that could serve to reverse this lacerating reality, especially an educational one
which has the power to eradicate some of the main causes of that problem. As we
are beginning to appreciate with the criminal justice system constitutional
amendment of 2008, changes implemented in the legal education of future lawyers
make a significant contribution to the change in paradigms and the consolidation of
a new culture in the practice of law.
This chapter identifies some of the main problems and challenges facing human
rights education, especially since the 2011 constitutional amendment. It does not
intend to be a comprehensive list but only illustrative of those that seem to me to be
the greatest priority to address. In any case, all have the common denominator of
shaping law schools as key actors for the implementation of the reform and, beyond
that, they show that among the many measures that must be implemented to end the
serious crisis of human rights facing the country, is the urgent transformation of
human rights education and culture that future lawyers receive. It is time for law
schools to assume their responsibility and reinforce their commitment in the for-
mation of more sensitive, committed and technically capable lawyers who defend
human rights more effectively. Until this happens, an essential part of the formula
for the success of the constitutional amendment will be absent, and we will be
waiting, in vain, for a change in the country’s human rights situation that will
otherwise never come.
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Part III
Structural Reforms and Their
Implementation Challenges
Chapter 11
How Does Criminal Justice Work
in Mexico?
María Novoa and Karen Silva Mora
Abstract Mexico’s criminal justice reform aimed to drastically transform the

country’s criminal justice system, making it more efficient and effective in order to
improve the quality of justice and to guarantee the rights of both victims and those
accused of crimes. More than ten years after Mexico passed this constitutional
reform, the results of the accusatory criminal justice system have come short of
achieving these goals. As a result, Mexico currently ranks as one of the countries
with the highest levels of impunity not just in Latin America, but worldwide. This
has created a deep mistrust in the institutions responsible for providing justice and
security. It is clear that the consolidation of Mexico’s criminal justice system poses
great challenges. Reform efforts must continue if Mexico wants to strengthen its
rule of law, which is the foundation for peace and equality.
! ! !
Keywords amparo Criminal justice system Impunity Public policy Rule of !
law
María Novoa is Coordinator of the Justice Project in México Evalúa. She has worked in the
World Bank, the Inter-American Development Bank, PNUD, the European Union and USAID.
She has also been part of different projects for institutional strengthening in El Salvador,
Mexico, Paraguay, Guatemala, Venezuela, Honduras, Bolivia, Ukraine and Azerbaijan. She
has a Master’s degree in Public Policy from the Universidad Simón Bolívar. Email: maria.
[email protected].
Karen Silva is a researcher of the Justice Project in México Evalúa. Previously, she coordinated
the Drugs Policy Program at the CIDE. She has a Bachelor’s degree in Law from the UNAM.

https://doi.org/10.1007/978-3-030-31314-2_11
194 M. Novoa and K. Silva Mora
11.1 Context
Over the last decade, Mexico experienced one of the most severe security and
justice crises since its transition to democracy. Impunity has been one of the main
factors that has led to the fragmentation of the country’s rule of law. In addition to
decades of violence and criminality that have plagued society, the criminal justice
system has not been able to effectively respond to its citizens’ needs, despite
significant regulatory reforms and institutional changes.
Today, Mexico is one of the countries with the highest rates of impunity not only
in Latin America, but also in the entire world (UDLAP 2017). At the same time, the
systematic violation of human rights, in particular through the commission of
torture and mistreatment, is embedded in its public security and law enforcement
institutions (Novoa/Silva Mora 2018). Furthermore, institutions are incapable of
guaranteeing effective access to justice. According to the 2017 National
Victimization and Public Security Opinion Survey (Envipe), in 49% of the inves-
tigations and preliminary probes carried out by the Attorney General’s Office in
2016, either no resolution was reached or the investigation was dropped.
As a result, citizens deeply mistrust security and judicial institutions, which, in
turn, contributes to the fact that the country’s crime rate is one of the highest in
Latin America. Only one in every ten crimes is reported to the authorities and thus
recorded in the official crime rate. This distrust of authorities is the second reason
why victims do not report crimes (16.5%), following the belief that filing a criminal
complaint is a “waste of time” (33.1%) (Novoa/Silva Mora 2018).
In this context, there is a clear need to continue efforts to consolidate the criminal
justice system as a mechanism to strengthen the rule of law, which is the basis for
achieving peace and equality.
11.2 Rule of Law and Criminal Justice System
In order to address the strengthening of the rule of law, it is first necessary to clearly
define the concept. What do we mean by “rule of law”? What are its implications?
How does it relate to the criminal justice system? A minimalist definition of rule of
law is the enforcement of publicized laws which are clear and evenly applied by
independent courts that reach verdicts through an ordinary trial process. This def-
inition, however, does not reference fundamental rights, equality, or justice
(Maravall 2003).
A more modern definition points out that the rule of law has two fundamental
pillars: limiting the state’s power and abuse, and the recognition and protection of
individuals’ rights and freedoms (Rodríguez Zepeda 2001; De la Madrid 2004).
The combination of these two ideas translates into what some scholars consider to
be the fundamental value of the State: security and legal certainty.
11 How Does Criminal Justice Work in Mexico? 195
In the words of Borja (1997), “the fundamental characteristic of the rule of law is
its complete submission to legal norms. Only in this way can people’s rights be
guaranteed and society can be confident and free under the rule of law, not in
arbitrariness. This principle describing the scope and effectiveness of the law is
called legal certainty, which is a value that must be fundamental to the State.
Without security, freedom, democracy and justice cannot flourish; without security,
a country’s development is not possible.”
Although these definitions provide us with a starting point to analyze the rule of
law, it is also essential to consider the definition and function of institutions
(González Guerra 2009). Several authors have outlined a theoretical framework for
the democratic rule of law. In addition to the uniform application of standards that
guarantee rights, freedoms and legal security by independent courts, this broader
notion takes into account the institutional design of the legal system and the per-
formance of the justice system’s institutions (Aguiar Aguilar/Azul 2015). This more
comprehensive definition of the rule of law includes the following elements (Aguiar
Aguilar/Azul 2015):
(a) Protection and guarantee of fundamental rights and freedoms.
(b) Exercise of power subject to a legal framework.
(c) Separation of powers.
(d) A modern justice system with independent, competent and impartial courts,
prosecution services and public defenders.
(e) Institutional capabilities and the professionalization of public officials.
(f) An effective fight against corruption, illegality and the abuse of power by state
authorities.
(g) Police that respect human rights, and civilian control over security forces.
This definition, which goes beyond law enforcement and considers the existence
and development of criminal justice system institutions, gives us a broader picture
of the foundations of the rule of law and what is at stake. Rule of law, in this case, is
not limited to formal rules that apply to the courts and their independence, but also
applies to a wide range of institutions and actors, including public security insti-
tutions, law enforcement agencies, public defenders, the penitentiary system and
human rights commissions (Aguiar Aguilar/Azul 2015).
From the empirical perspective, the World Justice Project (WJP 2018) designed a
conceptual framework and methodology in order to develop a Rule of Law Index,
which serves as a quantitative tool that measures the rule of law in practice. The
Index’s methodology and comprehensive definition of the rule of law is based on the
experiences and perceptions of the general public and in-country experts worldwide.
It presents a portrait of the rule of law several countries worldwide by providing
scores and rankings based on eight indicators: (1) constraints on government
powers; (2) absence of corruption; (3) open government; (4) fundamental rights;
(5) order and security; (6) regulatory enforcement; (7) civil justice;
(8) criminal justice. Many of the dimensions of the index – particularly the last one –
are directly related to the criminal justice performance (WJP 2018). In this instance,
the rule of law is considered to work properly within a country if factors such as its
effectiveness and impartiality are fulfilled.
In order to discuss democratic rule of law, establishing rules that guarantee the
citizens’ freedoms and human rights on paper is not enough. Comprehensive public
policy on security and justice which translate into the capacity of institutions to
efficiently and effectively deliver results must also be implemented. The criminal
justice system, in this context, has a key role to play in preventing impunity,
providing legal certainty to citizens, and ensuring respect for human rights. This can
be achieved through building robust institutional capacities that generate citizens’
trust (Novoa/Silva Mora 2017).
11.3 Criminal Justice Reform: From Implementation

to the Consolidation of the Criminal Justice System
During the last decade, Mexico’s criminal justice system has undergone an insti-
tutional transformation, following a process that other Latin American countries
started years before. On June 18, 2008, the Criminal Justice and Public Security
Reform (better known as criminal reform) was approved, through which Article 16
and paragraphs 2, 3, 4, 5, 7, 13, 17, 19, 20 and 21 of the Mexican Constitution were
modified. This radically changed the country’s criminal justice system, transitioning
it from a discredited mixed-inquisitorial system to an adversarial and accusatory
criminal justice system, in order to bring it in line with the democratic rule of law.
The ultimate aim of this change to the justice system was to make it efficient and
effective in order to improve the quality of justice and guarantee the protection of
the fundamental rights of victims and defendants.
To achieve such a radical change, profound institutional and legal transforma-
tions were required that relied upon three main factors: time, resources, and political
will. Taking this into consideration, the legislature established an eight-year time-
line to carry out the necessary steps to implement the new justice system, and
earmarked a large amount of resources in the federal budget for the criminal reform.
It also created a national coordination body in order to implement the reform
systematically and homogeneously on all three levels of government.
Congress set June 2016 as the deadline for the implementation of the criminal
reform. Today, ten years after the reform was passed and two years since its
implementation across the entire country was supposed to be completed, the
accusatory criminal justice system remains in the early stages of consolidation. The
reform was implemented heterogeneously at local and federal levels, which has
produced good practices and success stories, but remains far from the system
Congress envisioned ten years ago. This is partly due to a lack of clear political will
during the early stages of the reform, when many authorities, including local
governments, were reluctant to invest in one of the most ambitious projects of the
last century, foreseeing the possibility that the reform would be reversed in the
future. In fact, as a result of these reservations, most states did not begin imple-
mentation until 2014, when the deadline for the implementation of the reform was
imminent (CIDAC 2016).
As a result of this uneven and incomplete implementation process, despite the
enormous amount of resources invested in its transformation, the criminal justice
system still has significant gaps and deficiencies and lacks institutional capacities,
which hinders access to quality justice. Particularly since 2016, the uneven
implementation has been a challenge for the consolidation of the criminal justice
system. This stage has had to focus on addressing the existing gaps between states,
rather than on evaluating and monitoring the justice system’s operation and its
results, and therefore identifying areas of opportunity and making the necessary
improvements. These assessments must consider the context of a weakened rule of
law that the new justice system has faced, which results from: a public insecurity
crisis that impedes the measurement of the real impact of the system, the lack of a
citizen culture and general knowledge about the reform, but most importantly, the
defects carried over from the mixed inquisitorial system. These deficiencies, cou-
pled with the uneven implementation in the states, make it difficult for institutions
to implement the necessary work to achieve the accusatory system’s objectives.
11.4 How Does the Criminal Justice System in Mexico

Work Today?
Evaluations of the criminal justice system cannot ignore the fact that it is a public
policy that forms part of a broader security and justice system which must be
analyzed comprehensively. Its functioning depends on the interaction between
various institutions, which would ideally all have symmetrical capacities.
Therefore, before evaluating the justice system’s results, it is necessary to study
public policies, the decision-making process about how they are carried out, and
available institutional capacities in order to produce satisfactory results.
11.4.1 Public Policy
From a public policy standpoint, effective coordination of the different institutions

that are involved in the justice system is the foundation for its proper functioning,
consolidation, and progress. Unfortunately, comprehensive coordination does not
currently exist.
The Coordination Council and its Technical Secretariat (SETEC), which made
up the coordination body during the implementation phase, were dissolved at the
end of the implementation process. In 2016, the federal government designated the
Executive Secretariat of the National Public Security System (Spanish acronym:
SESNSP) as the body in charge of coordinating the consolidation of the criminal

justice system. Coordination has not been an easy task for SESNSP, since it has
limited legal powers for distributing resources and planning. SESNSP cannot create
policies that involve judiciary and public defenders, or give them federal funding in
order to make improvements. This means that SESNSP can only impact public
security institutions, which include the police, prosecutors and the penitentiary
system (México Evalúa 2018). As a result, there are significant asymmetries
between justice sector institutions, which have compromised the consolidation of
the system as a whole.
At local level, progress has been uneven. At the conclusion of the implemen-
tation process, the logical step was for the implementing bodies in each state to
transition into monitoring and evaluation bodies in order to ensure continuity and
progress. Contrary to expectations, this process has been heterogeneous. In some
states, the implementing bodies have been replaced by consolidation bodies, in
others the institutions have not changed, and in the rest consolidation tasks have
been transferred to the State Executive Secretariats, which are also unable to adopt
policies that affect judicial powers and public defenders. It is necessary to provide
the states that still have implementing institutions with legal certainty and legal
powers to carry out monitoring and evaluation. This demonstrates that, in addition
to the problem of coordination at national level, it is important to tackle the crisis of
technical institutional coordination at local level. These two challenges obstruct the
continuity of the system’s operation and jeopardize its consolidation.
On the other hand, there is a clear lack of comprehensive and continuous
planning for the consolidation of the system. SESNSP, the designated national body
for consolidation, developed a plan that included ten action points that were related
to the implementation or strengthening of necessary figures, offices or evaluation
models regarding police functions and alternative justice in particular, and criminal
justice in general.1
However, these actions alone do not constitute a consolidation plan. First, they
are subject to annual change and do not consider the medium to long term.
Secondly, the actions aim to close the gaps or address pending tasks in the
implementation stage instead of achieving the monitoring and evaluation process
that would help identify areas of opportunity in order to make the necessary
adjustments to the system. On the other hand, a consolidation plan must be based
on previous diagnosis and evaluation, defined goals, objectives and priorities,
expected outputs and results, as well as the monitoring and evaluation of the
system’s results, which is not currently the case. In addition, the plan does not take
into account the systemic and integral approach required for consolidation, and the
actions instead focus on particular institutions. Likewise, the actions proposed by
the SESNSP do not respond to the specific needs of each state and institution
responsible for operating the system, since, as previously said, they do not take into
1
See: https://www.gob.mx/justiciapenal/articulos/10-acciones-que-impulsara-en-2017-el-sesnsp-
para-avanzar-en-la-consolidacion-del-sistema-de-justicia-penal-120501.
account the judiciary and public defenders. Again, this makes it an unsuitable
consolidation plan.
Finally, the importance of monitoring and evaluation of the criminal justice
system needs to be emphasized. One of the crucial public policy tasks is to create
registration, processing and reporting systems that generate reliable, updated, ver-
ifiable and timely statistical data to ensure a comprehensive assessment of criminal
justice. However, due to a variety of factors, monitoring and evaluation have been
omitted since the accusatory system began to operate. First, there are no set
guidelines for collecting data and, as a result, each state and institution collects data
according to its own arbitrary method. On the other hand, the limited available data
collection does not consider the logic of the accusatory model. Finally, since
interconnected computer systems and shared databases that allow states and insti-
tutions to exchange information do not exist, it is impossible to have a compre-
hensive view of the justice system’s operation (México Evalúa 2018).
11.4.2 Institutional Capacities
There are also critical deficiencies in institutional capacities that have directly
impacted the operation and results of the justice system, and thus the perception of
impunity.
In the first place, even after the conclusion of the implementation phase of the
penal system, Congress has continued to pass reforms which have serious impli-
cations for the system’s operation. Congress passed the latest reform in 2016, and,
during the following months, various actors tried to promote a new reform that
would tighten the rules of the accusatory system with the intention of limiting its
guarantees. However, not all of the regulatory problems originate in the laws;
judges’ decisions and the federal courts’ criteria have also influenced the operation.
The jurisdictional function at times contradicts the logic and principles of the
accusatory model – such as immediacy, continuity and contradiction – privileging
the form over the substance and making the processes more inefficient. On the other
hand, the amparo trial, as it is currently regulated, has led to the paralysis and
prolongation of trials, affecting the essential principles of the criminal justice sys-
tem, such as concentration, speed, immediacy, contradiction, and free evaluation of
evidence. This interaction between the amparo trial and the criminal justice system
has yet to be reviewed.
In relation to technical issues, there are continued shortcomings in collecting
data and implementing computer systems. Although there are efforts to systematize
data collection, standardized criteria that provide the necessary information for
evaluation and measurement of results are still lacking. During this new stage, the
mere collection of operational data is not enough. Rather, the data must also be
useful for evaluating public policy from both quantitative and qualitative approa-
ches. Many institutions continue to use improvised platforms that generally cannot
be connected with other institutional operating systems. This puts consolidation at
risk because, as mentioned previously, only monitoring and evaluation can detect
areas of opportunity, in order to continuously adjust the system’s operation.
Regarding the working institutional models, no comprehensive models have
been developed to strengthen criminal investigation in prosecutors’ offices; efforts
have focused on managing the volume of cases, but not the quality of the inves-
tigation. As a result, although a small number of prosecutors’ offices have increased
their levels of efficiency in the resolution of cases, most of the cases they solve are
either filed temporarily or are uncomplicated cases that involve a flagrante delicto,
and therefore do not involve complex criminal investigations.
The federal government and the majority of the states (75%) are moving from a
procuratorial to a prosecutorial system, with the aim of guaranteeing greater effi-
ciency and independence in criminal prosecution. Nonetheless, these transitions
have occurred without reconstructing institutional models to ensure their opera-
tional independence and criminal investigation capabilities. Until now, these
‘transformations’ have been limited to transferring staff and material resources from
the former prosecutors’ offices, resulting in a simple name change. Likewise,
despite the existence of organizational manuals, the management models used by
different areas and units have not been standardized. Although this can create space
for beneficial improvisation and adjustment, it also makes it impossible to develop
institutional evaluation, and for operators to become truly specialized and
professionalized.
Although judiciaries continue to be the bodies with the greatest institutional
development, they have encountered various problems related to their management
models, which has put the operation of the system at risk in the medium and long
term. These problems relate particularly to the delay, suspension and efficiency of
hearings. That is, since there are no processes and mechanisms to distribute case-
loads and monitor hearings, hearings tend to last longer, to be postponed, or to be
re-scheduled over long periods of time. These problems, while managerial, also
reflect the inability of operators to conduct themselves effectively during hearings.
On the other hand, despite the crucial role of Public Defenders’ Offices in
defending the rights of the accused, they are at a great disadvantage compared to
other justice system operators. This is not only due to an asymmetric allocation of
resources, but also to the lack of effective management models that are used in other
institutions. Public defenders lack support staff for case management and investi-
gation to assist them in managing their high caseloads, attending an average of 209
defendants simultaneously (México Evalúa 2018). This makes it impossible to allot
sufficient time to each defendant to guarantee high-quality technical and legal
defense.
Similarly, victims’ support and legal assistance services are among the most
disadvantaged institutions in the criminal justice system. In the first place, these
services do not have their own institutional structure, and their location and dis-
tribution varies by state. While the Care Commissions provide these services in
some states, public prosecutors’ offices or even public defenders’ offices offer them
in other states. This situation leaves victims vulnerable because they are often
unaware of their right to be represented by a lawyer and to obtain care and support.
In addition, a significant number of the State Victim Care Commissions only have a
legal assistance area and do not have the capacity or personnel to provide com-
prehensive care and support for victims, as required by law.
On the other hand, the strengthening of the Supervisory Units for Precautionary
Measures (Spanish acronym: UMECAS), which are essential for the establishment
and monitoring of precautionary measures, continues to be a major pending con-
cern. The UMECAS have, in general terms, two functions: (a) to provide reliable
and verified information on the people being prosecuted, in order for the judge to
determine the most appropriate precautionary measure for the specific case; and
(b) to supervise compliance with the precautionary measures ordered by the judge
at liberty, through follow-up with the prosecuted individuals by a specialized
official. However, despite the fact that there is an UMECA in all thirty-two states,
only five have made high-level progress, while eleven have made low-level pro-
gress and the remaining states mid-level progress. Weak institutional capacities
have probably had a negative impact on the goal of minimizing the use of pre-trial
detention, which continues to be the most requested and granted precautionary
measure by the Public Prosecutors’ Office.
Finally, with regard to public security institutions, the police remain a weak link
in the system. However, mechanisms have been developed to strengthen and
improve the function of the police, and new responsibilities, such as first responder
and prosecutorial police, have also been considered. Among these new measures is
the “optimal model of police operation”, which simplified the Homologated Police
Report (HPR), the form that police officers must fill out when they are the first
responders. Criminal justice system training has also been implemented.
11.4.3 Results of the Operation
It is necessary to evaluate the data collected by the institutions in charge of oper-

ating the criminal justice system in order to assess the impact of the various public
policies that have aimed to implement and consolidate the 2008 criminal justice
reform on the management and resolution of issues. The results will reflect the
capacities of all the institutions involved in the criminal justice system.
First, the primary purpose of the accusatory criminal justice system is to ensure
access to effective and quality justice, yet this does not necessarily imply that all
cases must be resolved through a lengthy criminal proceeding. Therefore, in order
to respond to and satisfy the needs of victims efficiently, the accusatory system
contemplates measures such as the use of alternative solutions.
The data show that the prosecutors’ offices are not processing cases effectively
and there is already a significant backlog only two years after the system went into
effect countrywide. According to data from the National Census of Local
Prosecution Offices (Censo Nacional de Procuración de Justicia Estatal – CNPJE)
(INEGI 2017a, b, c), a decision was reached on only 50.8% of the investigations
that were initiated in 2016. This indicator is not that different from the
investigations initiated through the traditional system. According to the first census
of local prosecution from INEGI, which contains information about 2010, at
national level a decision was reached in only in 65.3% of the investigations (INEGI
2011).
However, this does not necessarily mean that cases that have been prosecuted are
actually being dealt with by the justice system. If we analyze the way in which
decisions are reached on prosecutions’ investigation files, we observe that in 2016
most of the cases were temporarily archived (27%), while only 1.8% were dealt
with by alternative justice (such as a reparatory agreement) and prosecutors use the
discretionary prosecution principle in only 0.9% of the cases, even though alter-
native justice is the backbone of the justice system. This tendency has been
maintained from the traditional system.
It is important to analyze the use of the temporarily archived files (known as
‘reserve’ under the traditional system). Procedural law allows public prosecutors to
close a case temporarily when there is not enough data during the initial investi-
gation to establish clear lines of investigation to clarify the facts. This is a tem-
porary decision, as it involves only ‘pausing’ the investigation. The indiscriminate
use of this measure highlights the inability of the police and public prosecutors to
clarify the facts, that is, to complete the investigation. On the other hand, the
authority benefits from pausing cases because they do not count as unresolved cases
in the data, since technically a decision was already reached on them. This situation
has not changed with the criminal justice system reform. Within the traditional
system, 31.4% of the total of decisions reached on prosecutions’ investigation files
were determined through the reserve (a figure similar to temporarily archived), and
only 24.5% were resolved as execution of criminal action, according to the CNPJE
(INEGI 2011).
On the other hand, the type of cases prosecutors select reveals their poor
investigative capabilities. As prosecutions’ institutions develop the ability to per-
form higher quality investigations, they will be able to resolve more complex cases,
in addition to those when the suspect is arrested at the time of the crime, which
reduces the complexity of the investigation. Although the data show that the
majority of cases that prosecutors bring before a judge did not involve an arrested
suspect (54%), this does not necessarily imply that they are complex cases. In fact,
according to data obtained by México Evalúa through an information request, in
2017 in some states almost all the cases that prosecutors brought before a judge
were with a detainee, which suggests that they have little to no effectiveness in the
investigation (México Evalúa 2018). In addition, that figure may also include cases
in which a suspect was detained, but the prosecutor released him or her with a
notice to appear before a judge in the future.
Another indicator that has impacted the perception of impunity is the frequency
with which public prosecutors release suspects who were arrested in flagrante
delicto. The procedural law gives this power to the prosecutors in order to prioritize
managing the high workload and the individuals’ freedom. This does not imply
impunity, since even if the suspect is released, the prosecutor has the obligation to
continue the investigation and bring the case before a judge. Nonetheless, this
power is being used excessively, and not all these cases are being brought before a
judge. This means that many of the investigations remain open, creating greater
congestion in public prosecutors’ offices.
According to INEGI, of the total number of investigation files initiated by
prosecution offices in 2016, the local judiciaries handled only 4.6% of the cases,
and only 0.2% of the investigations ended in oral trials. This data is not necessarily
negative, since, as mentioned above, the accusatory model provides – and, in fact,
privileges – the use of alternative and anticipated solutions, which allows matters to
be resolved without reaching the last stage of a criminal proceeding. However, there
is also a significant backlog in the resolution of cases before courts, with only 2.7%
of the initiated criminal cases concluded in 2016.
Since the 2008 reform passed, and in accordance with the presumption of
innocence principle, additional non-custodial precautionary measures were intro-
duced in addition to pre-trial detention. The hope was that pre-trial detention would
be used only in exceptional circumstances. In this regard, the task of the prosecutor
is to ensure that only necessary precautionary measures are used to guarantee the
purposes of the criminal proceeding and to avoid the excessive use of pre-trial
detention. However, pre-trial detention is still the precautionary measure most
frequently requested by public prosecutors and imposed by judges (México Evalúa
2018). This could be the result of inquisitorial practices that still remain from the
former system and the lack of effective precautionary measure monitoring units that
perform risk studies with adequate monitoring systems.
The results we analyzed provide us with an overview of how justice works in
Mexico. The accusatory criminal justice system favors the use of alternative or early
exits, in order to avoid resorting exclusively to the prosecution of cases. It also
seeks to minimize legal resolutions that may reduce the pressure on the system but
also incur a high social cost in terms of justice, since they do not resolve the core of
the conflict. In this regard, impunity reflects the inability of the criminal justice
system to seek and deliver justice. In addition to the unreported cases, impunity also
persists when crimes are reported to the authorities but they do not provide a
satisfactory response.
According to the Accusatory Criminal Justice System Impunity Index developed
by México Evalúa (2018), high levels of impunity are widespread throughout
Mexico, with a national average of 87.3%. This index measures the proportion of
cases that were reported to the authorities and investigated, but went unpunished or
unsolved. In this sense, impunity is understood as the percentage of cases in which
there was no resolution or consequence. The following graph shows that even the
states with the lowest rate of impunity exceed 50% (Table 11.1).2
2
The following states were not included in the analysis because they did not provide the necessary
information to create the indicator: Aguascalientes, Campeche, Colima, Michoacán, Puebla,
Sinaloa, Sonora, and Tamaulipas.
Table 11.1 Impunity in the accusatory criminal justice system. Source México Evalúa
At a first glance, it could be inferred that these results are related to the states’
progress of developing public policies to improve the criminal justice system and
strengthen institutional capacities. In other words, as public policies are developed,
the quality of justice improves, which leads to a lower level of impunity. Analyzing
the public policies and impunity rates of each state shows us that there is indeed a
relationship; states with the greatest deficiencies in public policies are those with the
highest levels of impunity, while those with the lowest levels of impunity have the
most robust public policies.
To summarise, the information currently available shows that the current justice
system has not achieved the expected outcomes. This is a result of the fact that the
system has not been able to operate under optimal conditions due to significant
implementation gaps that make it impossible to evaluate its actual results. As a
consequence, policy reforms and institutional transformations have not been
enough to reduce impunity, as the new criminal justice system is not able to
satisfactorily respond to citizens’ demands for justice.
11.5 Conclusions
The current criminal justice system in Mexico jeopardizes the country’s already
fragile rule of law, since it is not able to respond to demands for justice. However,
the greatest obstacles do not lie in legislation but in the system’s operation. Before
any additional reforms are passed, efforts must be focused on solving the day-to-day
operational challenges, ranging from the creation and implementation of public
policies to reorganization to strengthening legal operators’ competencies.
But, above all, it will not be possible to observe progress in the system’s results,
much less to reduce impunity, if there are no comprehensive evaluation processes in
place that assess how the system currently works in order to identify areas of
opportunity.
References
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159–172.
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Carbonell Sánchez, M. (Coord.), (2002). Derechos Fundamentales y Estado. Memoria del VII
Congreso Iberoamericano de Derecho Constitucional (Mexico City: Instituto de
Investigaciones Jurídicas UNAM).
Centro de Investigación para el Desarrollo [CIDAC]. (2016). Hallazgos 2015: evaluación de la
implementación y operación a ocho años de la reforma constitucional en materia de justicia
penal (Mexico City: CIDAC); at: http://cidac.org/wp-content/uploads/2016/05/HALLAZGOS_
2015.pdf.
De la Madrid, M. (2004). Constitución, Estado de Derecho y Democracia (Mexico City: Instituto
de Investigaciones Jurídicas, UNAM).
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movimiento de los trabajadores (Mexico: Konrad Adenauer Stiftung).
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Justicia Estatal [Database]; at: http://www.beta.inegi.org.mx/programas/cnpje/2011/.
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Justicia Estatal [Database]; at: http://www.beta.inegi.org.mx/programas/cnpje/2017/.
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Victimización y Percepción sobre Seguridad Pública [Database]; at: http://www.beta.inegi.
org.mx/proyectos/enchogares/regulares/envipe/2017/.
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Justicia Estatal [Database]; at: http://www.beta.inegi.org.mx/programas/cnije/2017/.
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Maravall, J.M. (2003). “The Rule of Law as a Political Weapon”, in: Maravall, J.M.; Przeworski,
A. (Eds.), Democracy and the Rule of Law (Cambridge: Cambridge University Press).
México Evalúa. (2018). Hallazgos 2017: Segumiento y evaluación del sistema de justicia penal en
México (Mexico City: México Evalúa).
Novoa, M.; Silva Mora, K. (2018). “Transformar la Procuración de Justicia para reducir la
Impunidad”, in: Pantin, Laurence (Coord.) Léase si quiere gobernar (en serio) (Mexico City:
Mexico Evalúa–CIDAC); at: https://www.mexicoevalua.org/2018/04/11/lease-quiere-
gobernar-en-serio/.
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Electoral).
Chapter 12
The Monster Within: Mexico’s
Anti-corruption National System
Cristopher Ballinas Valdés
Otra característica notable del Estado mexicano: a pesar de

que ha sido el agente cardinal de la modernización, él mismo
no ha logrado modernizarse enteramente. En muchos de sus
aspectos, especialmente en su trato con el público y en su
manera de conducir los asuntos, sigue siendo patrimonialista
[…] lejos de constituir una burocracia impersonal, forman una
gran familia política ligada por vínculos de parentesco,
amistad, compadrazgo, paisanaje y otros factores de orden
personal. El patrimonialismo es la vida privada incrustada en
la vida pública.
The Philanthropic Ogre, Octavio Paz
Another notable feature of the Mexican state: although it has
been the cardinal agent of modernization, it has not managed to
modernize itself entirely. In many of its aspects, especially in its
dealings with the public and in its conduct of affiars, it remains
patrimonial […] far from constituting an impersonal
bureaucracy, forming a large political family linked by ties of
kinship, friendship, compardrazgo, peasantry and other factors
of a personal nature. Patrimonialsim is the private life
embedded in public life. Paz (1978: 92)
Abstract Classic institutionalism claims that even authoritarian and

non-democratic regimens would prefer institutions where all members could make
advantageous transactions. Thus, structural reform geared towards preventing and
combating corruption should be largely preferred by all actors in any given setting.
The puzzle, then, is why governments decide to maintain, or even create, inefficient
Cristopher Ballinas Valdés is a specialist in the study of executive government, regulation and
public sector reform. A Doctor of Philosophy in Politics from the University of Oxford, his
research agenda explores the effects of politics and institutions on policy outcomes – the politics
of policies. Dr. Ballinas Valdés presents a broad high-level experience in policy instrumentation.
As a result, he has developed a portfolio focusing on the areas of public sector reform,
regulation, social policy, re-engineering, transparency, corruption control and border security.

https://doi.org/10.1007/978-3-030-31314-2_12
208 C. Ballinas Valdés
institutions. A perfect example of this paradox is the establishment of the National

Anti-corruption System (SNA) in Mexico. This is a watchdog institution, created to
fight corruption, which is itself often portrayed as highly corrupted and inefficient.
The limited scope of anti-corruption reforms in the country is explained by the
institutional setting in which these reforms take place, where political behaviour is
highly determined by embedded institutions that privilege centralized
decision-making. Mexican reformers have historically privileged those reforms that
increase their gains and power, and delayed and boycotted those that negatively
affect them. Since anti-corruption reforms adversely affected rent extraction and
diminished the power of a set of political actors, the bureaucrats who benefited from
the current institutional setting embraced limited reforms or even boycotted them.
Thus, to understand failed reforms it is necessary to understand the deep-rooted
political institutions that shape the behaviour of political actors. This analysis is
important for other modern democracies where powerful bureaucratic minorities are
often able to block changes that would be costly to their interests, even if the
changes would increase net gains for the country as a whole.
!
Keywords Democratic institutions Mexican presidentialism National !
!
Anti-corruption System Partido Revolucionario Institucional (PRI)
12.1 Introduction
Studies regarding the impact of political institutions on government restructuring

are hardly a novel idea, although they are relatively new in Mexico. They have been
a central unit of research for institutional economists and political scientists for the
last four decades, leading to multifarious conclusions. Mancur Olson (1982a, b,
1984), when analysing the rise and decline of Western economies, argues that “even
in dictatorial systems, the dictator has an incentive to make the economy of the
country he controls work better, since this will generate more tax receipts he can use
as he pleases and usually also reduce dissent” (1984: 637). According to Olson,
even authoritarian and non-democratic regimes prefer institutions where all mem-
bers can make advantageous transactions, since any other situation is not an
equilibrium. This would in turn lead to another set of institutional reforms until all
members are satisfied. In his words: “any disequilibrium indicates that all mutually
advantageous transactions have not been consummated”.
Following this logic, no government, even an authoritarian one, has an incentive
to generate serious recessions or disequilibria, and will steadily and slowly move
onto efficient and equalitarian institutions, even if it implies losing some political
control or economic gains. Yet, the world is full of cases where governments do, in
fact, cultivate institutions that are less than ideal, or even economically and socially
harmful. The puzzle, then, is why governments decide to maintain, or even create,
inefficient institutions.
12 The Monster Within: Mexico’s Anti-corruption National System 209
To solve this conundrum, it is important to understand the potential gains which

some groups derive from a set of institutions, before turning our attention to the
structure of incentives created by the said institutions and policies. We can then see
how the structure of incentives creates powerful groups which stand to gain the
most – in terms of power and privilege – from the preservation of the existing
order, not from its alteration. When restructuring economic institutions, reformers
have inducements to preserve those political institutions that allow them to gain, or
at least maintain, power. What seems a contradiction to some is, in fact, a landmark
of the political elite in many countries. We will use Mexico, and particularly the
creation of the Mexican National Anti-corruption System, to exemplify this very
real problem.
This perverse incentive to maintain or create inefficient institutions is something
that has characterized reforming intents in Mexico for decades (if not centuries).
Octavio Paz, the first Mexican writer to win the Nobel Prize in Literature, char-
acterized the Mexican political system of the late Seventies as a philanthropic ogre.
For Paz, the Mexican political system of the last century, characterized by the
hegemonic control of the Partido Revolucionario Institucional (PRI), held a deep
contradiction. On the one hand, politicians during this regimen were dedicated to
providing services, building hospitals and schools, creating a social security system
for workers, subsidizing agriculture and industrialization, and creating several
publically owned firms to guarantee milk and other basic goods. On the other hand,
the political system was renowned for its political control of all branches of gov-
ernment at all levels, the suppression of checks and balances, and the sometimes
brutal neutralization of political opponents by way of serious violations to civil and
human rights. In Paz’s own words:
Within the Mexican State there is an enormous contradiction that no one has been able, or
even tried, to solve: the body of administrators and technocrats, the professional bureau-
cracy, shares the privileges and the risks of public administration with the President’s
friends, family and favourites, and with the Minister’s friends, family and favourites. The
Mexican bureaucracy is modern, it wants to modernize the country, and its values are
modern values. Rising before it, sometimes as rival and others as associate, is a mass of
friends, relatives and favourites, united by personal ties. This courtesan society is renewed
partially every six years, every time a new President rises to power. Because of its implicit
ideological situation, and its mode of recruitment, these bodies of courtesans are not
modern; they are the survivors of hereditary privileges. The contradiction between the
courtesan society and the technocratic bureaucracy does not immobilize the State, but it
does make its course long and winding. There aren’t two politics within the State: there are
two ways of understanding politics, two sensitivities, two moralities (Paz 1978: 41).
Paz sees this contradiction inside the Mexican political system, and most par-
ticularly inside the central government, as leading to contradictory
decision-making. We contend that, even after the defeat of the hegemonic system,
this dynamic prevails, and continues to affect all efforts at profound government
restructuring.
Such is the case of the Mexican National Anti-corruption System (Sistema
Nacional Anticorrupción, or SNA). We contend that Mexican reformists of the
second decade of the twenty-first century never truly wanted to transform the
country’s institutions to lead the nation to higher prosperity, but intended to use
institutional changes as mechanisms to maintain power.
Fighting corruption appeared to be a contradiction for the reforming agenda of
the twenty-first century. Historically, Mexico had no tradition of checks and bal-
ances or independent watchdogs, and corruption was endemic. In fact, corruption
helped Mexico attain the political stability that allowed it to achieve long periods of
economic growth. It also remains the glue that holds the country’s establishment
together. The system is so entrenched that even when the long-time opposition
party, the National Action Party (PAN), took power, it quickly fell into line, but in
different ways. In this case, a reform agenda and maintaining tainted institutions
were two faces of the same coin. The reform team became focused on reforming the
economy while ensuring that anti-corruption policies would not turn against them.
Therefore, this article argues that the creation of the SNA, even when it was
never originally meant to be set up, faced a contradiction in its origin that prevented
full implementation. The creation of the SNA was embedded within a corrupt
structure of institutions. Bureaucratic groups shaped its design in such a way that
their interests would not be affected. Thus, during the creation of the SNA, insti-
tutional and political limitations persisted. There was no tabula rasa or blank slate
for the creation of the SNA; it had to be built through institutions which maintained
and masked corrupt behaviour. More importantly, those in charge of implementing
the reform were the most interested in designing it to fail.
The rest of this paper is organized thus: first, I will describe the inner dynamics
of the Mexican central public administration born from the Mexican Revolution of
1910, and its further development during the long governmental tenure of the PRI.
Second, I analyse the institutional limitations present during the creation of the
SNA. The final section presents my conclusions.
12.2 Nursing the Beast: Mexican Political Institutions
Before the breakdown of the authoritarian regime and the transition to a more
democratic one, the Mexican political system was renowned for the stability of its
one-party political system. The country seemed to have found the elusive combi-
nation of political stability and economic growth in a region characterized by
political disruptions and violence (Huntington 1968). Many scholars have argued
that the relative stability was the product of institutional features not found in other,
more democratic countries (Haggard/Webb 1994; Ros 1994; Santiso 2004).
Emphasis has been placed on the enormous power concentrated in the Mexican
presidency. It is widely believed that Mexican presidents controlled all political,
economic and social levers of the country. These extended faculties gave the
President the power to control corporatist sectors, labour unions, and peasant
organizations, and gave him the opportunity to negotiate directly with business
associations. Based on these assumptions, several scholars have characterized the
Mexican political system as anti-democratic, corrupt and authoritarian – a ‘perfect

dictatorship’ with a democratic façade.
Mexican presidents exercised an extraordinary range of powers. Although
originally weak in design, the presidency collected legal and extra-legal faculties
which prevented others from acting as collective players against it. The Party, the
legislative and judicial branches, and the bureaucracy were brought into line, and
became compliant. Then, three conditions were necessary for presidencialismo to
occur. First, a unified government; second, Party discipline; and finally, the ability
of the President to set the Party’s agenda and to punish any uncooperative beha-
viour shown by the members of the PRI’s legislative caucus (Molinar Horcasitas/
Weldon 2001; Weldon 1997b).
Based upon these elements, the regime achieved lasting stability, combining
political survival and economic development. “The Mexican president was there-
fore the linchpin of an inter-temporal agreement that succeeded in reassuring key
interests that the bargain they had struck with the regime would continue” (Lehoucq
et al. 2004).1 This resulted in a highly centralized decision-making process
revolving around the Executive, and in a strong central bureaucracy characterized
by narrow and secretive decision-making (Lehoucq et al. 2004).
Mexican presidents were certainly not omnipotent actors, and they did face
several constraints on their authority. As scholars have documented, Congress, the
Supreme Court, the central bureaucracy and corporatist organizations all challenged
presidential powers at some point during the PRI regime (Castañeda 1995; Cordera/
Tello 1981; Weldon 1997b).2 Yet, Presidents created a set of institutions that both
de jure and de facto secured the loyalty of both the legislature and the judiciary.
As a consequence of the expansion of presidential power, the central public
administration was relatively isolated from the pressures of the political system. The
supremacy of the Executive Branch over all other branches of government and the
centralization of political activity shaped the public administration’s structure.
1
These complement a set of elements topically quoted in the literature on the Mexican political
system: first, the lack of electoral competition, based on an official Party as an “electoral ministry”
and the regulator of political conflict; and second, a set of unwritten rules, also known as
“meta-constitutional powers”. These included the possibility of appointing and removing gover-
nors, members of the judicial branch, peasants and union leaders. With the President as the direct
leader of the Party, it was also possible to appoint candidates for the Congress and the Senate, and
to control Party actions.
2
Weldon (1997a, b, 2004) has documented how Mexican legislators opposed the President’s will
despite the institutional matrix sustaining presidencialismo. Moreover, during presidencialismo,
the PRI came to monopolise all committee chairs and all positions of influence within Congress
and the judicial branch, which was advantageous in those situations in which they needed to gain a
large majority approval. Something similar happened with the judicial branch. Although the 1917
Constitution guaranteed its formal independence, Congress exercised political control over it,
mainly through the rules on the appointment, tenure and impeachment of judges. At the same time,
the President obtained the power to request that Congress dismiss judges, as happened during
Lázaro Cardenas’s presidential term (1934–40) when he discharged all the members of the
Supreme Court. Consequently, the tenure of judges of the Supreme Court was changed to a
six-year term, concurrent with presidential terms.
The President consolidated political control of the bureaucracy, placing the

Ministry of the Interior and its loyal staff as overseers of other government
branches.
Through a series of unique characteristics, the PRI ensured internal stability, and
combined it with mobility for its governing members. Paramount was the fact that
the PRI’s presidential candidate was selected from within the ranks of the admin-
istration. This introduced a powerful incentive for the system to attract and retain
well-qualified candidates (Hernández Rodríguez 1987, 1993). Another factor con-
tributing to stability was the regulation barring consecutive re-election within the
Mexican Congress. Elected office was used as a stepping stone to other political
positions, and candidate selection was used to control members (Smith 1975, 1979).
Additionally, cabinet officials were freely appointed by the President, and nee-
ded no ratification by any of the other branches of government. Indeed, the pres-
ident appointed not only the cabinet, but also a wide assortment of middle-ranking
officers in the ministries, other cabinet-level agencies, and state-owned enterprises
(Carpizo 1983; Hernández Rodríguez 1994). This extensive appointment preroga-
tive provided the President with a formidable degree of freedom. It also ensured
discipline at all levels, including the Cabinet, since its members could be removed
at any time.
The centralized character of decision-making engendered an asymmetry among
bureaucratic agencies and, in many ways, resulted in a specialization by policy area
or ministry.3 Thus, Mexican presidents were the dominant actors in both
decision-making and policy-making. During the PRI’s tenure, this allowed presi-
dents to shape policy around their preferences, and provided a measure of policy
continuity across presidential terms (sexenios).
There was a symbiotic relationship between presidents and the bureaucracy.
And, given the technical character of many policies, the bureaucracy enjoyed a
certain level of independence from the President. They usually took unilateral
action without consulting other branches of government or the Party. Given this,
there was little investment in policy capacities in other spheres. In many cases,
bureaucrats managed to place themselves at the top of the political axis and
establish control over other branches of government.
Consequently, the central bureaucracy was not only a technical but also a
political arena; decisions were taken, but many political struggles also took place
there. Power-seekers had strong incentives to develop their careers by rising
through the ranks of the central public administration. The rise and promotion of
Mexican civil servants was regulated by a series of written and unwritten rules
3
For instance, the Ministry of the Interior dealt mostly with political matters, while the Ministry of
Finance focused on economic issues. The Ministry of the Interior played the most important
political role, since the intelligence agencies that kept supporters and opponents under surveillance
were located within it. Meanwhile, the Ministry of Finance, which controlled revenues and
expenditure, exercised political power in that it could facilitate or block actions of state agencies
(Ortiz Mena 1998). The Interior and Finance ministries together operated to check and balance the
power of the President.
developed during the post-revolutionary period. This created groups and institu-
tionalized coalitions within governmental bodies that shaped the internal dynamics
of the Mexican public administration.
Controlling other branches of the government as well as societal groups and
trade unions prevented opposition when reforming. This happened during the late
1980s and early 1990s, as a powerful central bureaucracy and central control of all
the elements of the political system provided the ideal scenario for rapid and
efficient implementation of structural reforms. The literature concurs that the suc-
cess of these reforms was profoundly influenced by the ability of presidents to
appoint cohesive reform teams, delegating to their members the authority both to
craft policies and execute them, while at the same time insulating them from
countervailing pressures.
Most scholars attribute the scope, pace and success of the Mexican reform
program to centralized presidential power, control over the ruling party, and the
administration’s technocratic and political know-how. Powerful presidents and
controlling central bureaucrats were also key to maintaining governability, and to
undertaking profound change when necessary. Deep structural and economic
reforms during these decades were only possible as they were carried by central
bureaucrats, who controlled the institutions, and possessed the expertise. Economic
reform in Mexico was swift and seen as highly successful, but the way it was done
also had serious ramifications.
The concentration and centralization of power in some persons and agencies
may have proved successful in the short term, but had consequences that jeopar-
dized the further reforms of political institutions. In order to gain more control over
the process, reformers altered deep-rooted institutions that regulated the central
public administration. Mid-level bureaucrats were cut out of the decision-making
process, though not initially from the implementation process.
What happened to be an advantage also turned into the most dramatic dead
weight. As bureaucrats began to lose long-standing privileges and their source of
power, they reacted. Bureaucrats started to alter the pace and extent of reforms,
adapting, modifying, or even aborting them. The reform teams thus faced oppo-
sition not only from outside the government, but also from inside the bureaucracy
itself, primarily from nationalists, experts, and traditional bureaucrats. This affected
the scope of the reforms and distorted their original aim, especially those regarding
government structure.
Electoral institutions had been reformed, yet the central government equilibrium
remained intact, even after the democratic transition in 2000, and the 2006 elec-
tions. The economic reforms of the Nineties and the advent of democracy in the
country brought no change to the main structures of government which, aside from
some cosmetic changes, remained the same during the transition. Minor democratic
controls were put into place, such as legislative ratification of some cabinet
members, and some budgetary controls. A major reform of the Judicial Branch,
driven by the increasing democratic wave, shaped a judiciary review process on a
scale never before seen in the country. A new career civil service was created, but it
was focalized, and had limited scope and impact.
Paradoxically, in a country characterized by a highly-disciplined bureaucracy,

the most vociferous opposition to economic and political change came not from
interest groups, legislators or voters, but from bureaucrats within the government.
Carlos Salinas de Gortari (President of Mexico 1988–1994), widely considered the
most successful liberal reformer in the Latin American region at the time, has
frankly admittedly that the real adversaries were not outside, but within the gov-
ernment itself. Even after the presidency was won by a different party in 2000 (the
PAN), high and mid-level bureaucrats remained in their posts doing the same thing
in the same way as they did it before. Many reforms hinged on a bureaucracy
committed to taking them to fruition. Yet, powerful mid-level bureaucrats con-
trolled the implementation processes, and delayed them or, even aborted them.
The story repeated itself during the late 1990s and the first decade of the new
century. The way to rise to the presidency may have changed, yet the powerful
government bureaucracy remained intact. As observed by Ballinas (2011), Mexican
presidents may have exerted control over the creation of reform agendas and
autonomous watchdog agencies, but the central bureaucracies boycotted and limited
the scope of these, resulting in failed institutions with limited power and mixed
levels of autonomy. Intervention during the process of designing autonomous
agencies resulted in a struggle between bureaucrats and reform teams. Political
struggles determined the final institutional outcomes, which the case studies reveal
to be a multifarious disarray of unexpected organizational forms.
This study illustrates how the creation of agencies that undermine the power
structure within the public administration is affected by those same political factors.
It also reveals that government restructuring is more likely to result in significant
failure when domestic bureaucratic structures are well established. An important
lesson is that it is a mistake to reform or create institutions that can be boycotted by
entrenched central bureaucracies without strengthening counterbalances such as
fiscal controls and legislative oversight.
As stated above, this phenomenon is not exclusive to Mexico. In his research on
reform in Soviet-type economies, Winiecki (1996) found that Party apparatchiks and
economic bureaucrats can greatly benefit from persistent interference in the eco-
nomic sphere, and are consequently most interested in maintaining the status quo.
These motivations can condemn reforms in Soviet-style economies, as the content of
economic reforms is altered or dismantled by counter-reformers. The apparatchiks
swiftly implemented those economic reforms that expanded their influences and
privileges, and sabotaged and aborted those economic and political reforms counter
to their interests. Such has been the case in Mexico and many other places.
12.3 The System That Never Was
The government of Enrique Peña Nieto began with exaggerated amounts of opti-
mism. By 2012, the confident atmosphere surrounding the economic reforms
attracted positive global attention towards the promising Mexican economy.
A reform program, alluringly named the “Pact for Mexico” was designed, and
agreed to, by an array of political forces – many of them political rivals of Peña
Nieto’s PRI. It was also massively publicized. This Pact was a reform agenda
similar to those implemented in Mexico during the Eighties and Nineties, and listed
a series of issues that would serve as a legislative blueprint for the first part of the
administration. The agenda included economic growth, competitiveness, security,
democratic governance, and government reform. Backed by other political forces
from the very beginning, the reform agenda was extensively and successfully
implemented in a relatively short period. Sweeping educational, energy, telecom,
governance, and budgetary reforms were passed. Also, part of the original pact were
plans to eradicate corruption by building independent institutions and strengthening
transparency, yet these were delayed for years and remain incomplete.
From the beginning, Peña Nieto presented himself as progressive reformer. The
international media portrayed him as the Mexican saviour who would turn the
country around, changing the Narco-stained narrative to one of a prosperous
country. “Saving Mexico”, ran a Time Magazine cover with a photograph of the
Mexican President. Nevertheless, an analysis of the reform agenda of the Peña
Nieto administration reveals that, while they had clear economic reform in mind,
profound political reform was denied, and social reform completely ignored.
Peña Nieto’s administration lived through two contrasting processes that explain
why reforms regarding corruption were never finished while other more problem-
atic ones, such as education or energy, were swiftly approved and implemented. On
the one hand, Peña Nieto´s economic liberalization reforms were accomplished by
promising larger profits to economic actors who supported them. On the other,
political reform implied restructuring the very institutions that political actors used
to maintain and remain in power. Thus, the former reforms were implemented, and
the latter ignored.
Peña Nieto and his team never really wanted a reform on corruption; it was
included in the “Pact for Mexico” by opposition parties. Peña Nieto’s team wanted
to secure the benefits of economic reform for their financial supporters. Legislative
approval of the major liberalization reforms was achieved through graft, allowing
favored economic and political actors to profit from access to privileged informa-
tion. On the political side, as a member of the traditional Partido Revolucionario
Institutional, the President wanted to restore the country’s political system to
something akin to the 1950s, a time when the federal government’s paramount goal
was economic growth, but when it also controlled all branches of the government at
federal and local levels. Economic reform was seen as a way to secure loyalties
throughout the political arena at virtually no cost in terms of popularity.
In 2013 Peña Nieto’s administration presented to the Congress a proposal of
constitutional reform which would increase the legal capacity of the agency for
transparency and personal data protection and create a National and Autonomous
Commission of Combating Corruption. The following year Peña Nieto and his
close circle found themselves in a media whirlwind when it was discovered that a
favored government contractor had built a multi-million-dollar mansion called Casa

Blanca for his family. Corruption suddenly became the raison d’être of the
country’s activist and NGO community, and the topic threatened to overshadow all
others.
The scandal’s potential damage to the administration, and especially to the
President’s image, led to the decision that an anti-corruption reform had to be rolled
out, shaped by them, and controlled by them. In consequence, the National and
Autonomous Commission of Combating Corruption’s proposal did not prosper, as
it faced vociferous opposition from civil society organizations. Those organizations
took the lead in the process of drafting a new proposal that would eventually
develop into a proposal for the National System Anti-corruption.4
Mexico had been suffering a time of extreme violence, which had weakened
credibility in public institutions. However, the administration’s blatant corruption
and abuse of power only made a bad situation worse. In 2017, Mexico was placed
last among OECD countries in Transparency International’s Corruption Perceptions
Index, with an overall ranking of 135 out of 180 countries, at the same level as
Paraguay, Kyrgyzstan, Ivory Coast and Russia. The increasing perceptions of
corruption in the country were not only because of the Casa Blanca scandal, but
because of widespread corruption across the country, at all levels. At least fourteen
former or current governors from the governing party were under investigation for
corruption or for colluding with organized crime, the very groups largely respon-
sible for Mexico’s rising violence.
It is well known in Mexico that corrupt officials divert millions of dollars in
government funds away from the public and into their own pockets. This carries
serious social and economic consequences, such as reducing foreign investment,
hindering economic growth, and fuelling inequality. A comprehensive study by the
Mexican Institute for Competitiveness (2015) indicated that corruption reduces
foreign investment in Mexico by five percent each year, and the World Economic
Forum (2017) ranks corruption as the single most important barrier to doing
business in Mexico. The National Survey on Victimization by the National Institute
for Statistics and Geography (INEGI 2017) found that judges, police, and prose-
cutors are perceived as some of the most corrupt actors in the country.
This is consistent with the findings of the Global Impunity Index (2017) from the
Center for Studies on Impunity and Justice, University of the Americas Puebla, that
states that impunity is a norm across Mexico, as it is throughout Latin America and
the Caribbean. Although nearly every country in Latin America is struggling to
combat high rates of impunity, Mexico’s case is dramatic: high levels of corruption
and impunity are connected not only to weak institutions, but to the fact that the
very institutions in charge of containing corruption are working to undermine the
efforts to contain it. For instance, almost 43% of the country’s prison population
hasn’t been tried yet, which the report indicates is a measure of the low
4
This largely explains the citizen nature, at least in law, of the SNA.
Table 12.1 Investigations of public servants suspected of misuse of public funds (administrative
responsibility penalties, ARP)
Year 2009 2010 2011 2012 2013 Total
Investigation concluded 1,385 1,911 1,562 1,652 1,021 7,531
Under investigation 0 0 87 157 327 571
ARP 95 54 47 21 0 217
No ARP 769 932 546 315 56 2,618
Source Ortiz Ramírez (2016: 559)
functionality and inefficiency of the judicial system.5 Despite the judicial review
undertaken several years before, justice is not improving in Mexico (Table 12.1).
An example of impunity can be found in Ortiz Ramirez’s analysis of
Administrative Responsibility Findings (2016). Yearly audits of the executive
branch are conducted by the Superior Auditor of the Federation. Cases of alleged
misallocation or misuse of funds are investigated, and if a government official is
found to have been responsible, he or she is found to have Administrative
Responsibility and can be held responsible for the missing funds. Administrative
Responsibility penalties go from slaps on the wrist to criminal prosecutions. Ortiz
Ramirez found that, between 2009 and 2013, the number of cases in which a
government official was found responsible for misallocation or misuse of funds
went from 6 to 2%, despite a string of high-profile corruption scandals. It was under
these circumstances that the anti-corruption reform was begun.
Under intense pressure to answer for the scandals jolting his administration,
Peña Nieto’s government rolled out an anti-corruption reform package, which was
approved and then entered into force in July 2016 to a great fanfare. It was pre-
sented as a landmark foundation for a tougher and more comprehensive approach to
combating corruption, and a major step forward in terms of increasing account-
ability for corrupt public officials. The SNA was created as an entity charged with
coordinating anti-corruption efforts at federal and state level, harmonizing the
efforts of civil society and Mexican federal agencies to improve oversights, sanction
corrupt businesses, and promote the prosecution of cases.
Already existing institutions would take part in the SNA, but were hampered by
a lack of clear coordination and autonomy, as well as by new offices that were
created as part of the system. The System is headed by a Coordinating Committee
in charge of analysing, designing and implementing anti-corruption actions and
establishing a framework for coordination between the 96-plus entities at the fed-
eral, state, and municipal levels which are charged with combating corruption. The
Central Committee is constituted by representatives from the Superior Auditor of
the Federation, the Special Prosecutor’s Office for Combating Corruption, the
5
The Global Impunity Index Report pointed out that Mexico’s ratio of police per capita was
significantly higher than the global average (355 per 100,000 inhabitants); nevertheless having
only 4.2 judges per 100,000 inhabitants, which is well below the average, creates serious clogging
during trials and judicial reviews, and most crimes go unpunished.
Fig. 12.1 Members of the national anti-corruption system. Source The author
Ministry of Public Administration, the Federal Tribunal of Administrative Justice,

the National Institute for Transparency Access to Information and Personal Data
Protection, the Federal Judicial Council, and a Citizen Participation Committee.
The institutional objective was to put together groups that were not coordinating
their efforts in order to identify and control corruption and, by including citizens in
the Central Committee, repair the relationship between the government and the
public (Fig. 12.1).
The reforms seemingly laide the foundation for a tougher and more compre-
hensive approach to combating corruption in Mexico. The objective was to demand
greater government transparency, expand audit powers, and reduce political influ-
ence over investigations into corruption cases. The main tool was the creation of an
autonomous Special Prosecutor’s Office for Combating Corruption. Note that, at the
time of writing, the head of this office has not yet been appointed.
The system also lacked important offices to institute a far more comprehensive
approach to combating corruption in Mexico. These included other figures such as a
Financial Intelligence office which could investigate money laundering, campaign
financing, and the use of money to influence policy; and an Organized Crime office
to delve into the use of cartel money for political purposes. A quick institutional
review shows that the intention of creating a tangible system to control corruption
was merely a façade. After nine months of pushing to examine the kind of cor-
ruption that ignited public outrage and brought the new watchdog into existence,
some of the institutions’ most prominent members say they have been stymied
every step of the way, unable to make the most basic headway (Fig. 12.2).
Regardless of the publicity surrounding the anti-corruption reforms, and despite
popular demands, little was achieved. Mandatory local anti-corruption systems
were supposed to be set up as result of this reform. Nevertheless, Enrique Peña
Nieto’s administration failed to implement several important aspects of the
anti-corruption reform package that are essential for making the National
Anti-Corruption System fully operational, and more importantly, it deliberately
attempted to prevent several important anti-corruption probes moving forward.
The Senate delayed the appointment of several key actors in the system,
including the Special Prosecutor and eighteen Magistrates specialized in
Note: This figure shows all the Mexican institutions that should be part of the system for
counting all the phases of corruption control. According to the General Law of the SNA, the
various parts of SNA include the Citizen Participation Committee, the Coordinating
Committee, the Governing Committee of National Audit System, and local anti-corruption
systems; it also includes the Executive Secretary of SNA, along with a technical secretary and
the Executive Commission.
Fig. 12.2 Complete integration of the National Anti-corruption System. Source The author
investigating and prosecuting corruption cases. The delays happened because the
Senate considered that candidates were not independent, and mainly identified as
part of the Peña Nieto administration. Additionally, the Citizen Participation
Committee, which was supposed to play a major role in suggesting and overseeing
the actions of the anti-corruption system, has claimed that the administration has
consistently undermined their efforts to do so. At state level, systems have not yet
been implemented in most places. This is not a minor point, as corruption is
endemic at state level. The above gives strength to many of the assertions in the
document that emphasize the inertia of subnational political institutions.
Added to this were the administration’s refusal to cooperate in some of the
biggest cases of alleged government corruption, the scandals regarding the use of
government surveillance technology against anti-corruption activists, allegations of
widespread bribery to win construction contracts, and the purported embezzlement
of millions of dollars. All this signalled that central government efforts to fight
corruption were mainly phoney. One glaring example is the protection of Mexican
government officials implicated in the United States Department of Justice’s
investigation of the Brazilian construction company, Odebrecht. This was a bribery
scandal which rocked administrations across Latin America, but the Peña Nieto
government did its best to sweep it under the rug.
Why create a complex system of institutions to fight corruption that will not be
fully implemented? Why hobble them and make them inefficient and ineffective?
Shouldn’t public pressure have led the government to create institutions which
would give better results and lead to greater social equilibrium?
First, public opinion, citizens and civil society leaders, including some who
helped engineer the creation of the anti-corruption system, may have fallen prey to a
familiar trick: the government creates a panel to address a major issue, only to
starve it of resources, inhibit its progress or ignore it, or make rules so convoluted
that the system is unworkable. In the case of the SNA, the system is not a collection
of processes, but a group of institutions without a coherent set of procedural rules.
For example, the Citizens’ Committee technically oversees the entire process,
yet it is overseer in name only. All significant decisions must be made by a col-
lection of seven different agencies. Even when supervising other members’ actions,
the institutional construction leaves the Citizens’ Committee heavily outvoted. Six
of the agencies come from different branches of government, with different
incentives, different objectives, and different processes. There is no homogenous
procedure established for inter-agency interactions. When one part of a process is
finished, there is no established procedure to pass on to the next part. Another
example: the SNA communicates the results of an investigation to the prosecution,
which then needs to begin its own enquiry. The system is designed not to work, or
to do so as slowly as possible.
Second, and more important, Mexico has no tradition of independent watchdogs,
so there is no quick fix here. The creation of the SNA is embedded in the tradition
of Mexican centralized public administration. Solutions come from the President
and the central bureaucracy which designs them. Thus, ‘solutions’ are fashioned to
suit the incentives of the government, not of the public. Reformers knew that
including these six visible yet disconnected agencies created a perfect façade for the
SNA, and excluding crucial actors, such as financial intelligence, was part of the
plan.
The Mexican political system has never created real counterbalances or checks
and balances. This has resulted in a highly centralized decision-making process
around the Executive. All deep structural reforms in Mexico have been exclusively
presidential driven. The President and central government bureaucrats shape re-
forms in such a way as to avoid being affected by them. This is the case with the
SNA. Full implementation of the System would have limited the gains derived from
the economic reforms pushed by the same Peña Nieto administration. It’s no
coincidence that the most vociferous calls for action against corruption were against
government officials involved in infrastructure and oil contracts, yet those same
were a huge part of the support for Peña Nieto’s reforms. Fighting corruption would
have stymied plans for gaining control of a strategic economic sector, therefore
corruption control resulted in just farce.
12.4 Final Remarks
Classic institutionalism claims that even authoritarian and non-democratic regimens

would prefer institutions where all members could make advantageous transactions.
According to this argument, structural reforms that focus on preventing, limiting
and combating corruption will be largely preferred by all actors in any given setting.
Nevertheless, the Mexican political system was comprised of bureaucrats who were
system-specific, implying that these actors would be worse off under a fully
implemented anti-corruption scheme. Thus, those in charge of implementing such a
reform who were at-risk of losing the privileges granted to them by the current
system dedicated themselves to limiting the scope of the reform.
In Mexico, political behaviour is highly determined by embedded institutions
that privilege centralized decision-making. Mexican reformers have historically
privileged those changes that increase their gains and delayed and boycotted those
that negatively affect them. This is the result of a path dependency on
President-driven reforms and entrenched central bureaucracies, without strength-
ening real counterbalances, which the Mexican political system has never done.
Corruption control represented a contradiction in the government’s plans to con-
tinue extracting rents. The SNA resulted in a façade, characterized as “a group of
people who meet for coffee and biscuits”.
This result holds not just for Mexico, but also for soviet-style economies, and
even for modern democracies where powerful bureaucratic minorities are often able
to block changes that would be costly to their interests, even if the changes would
increase net gains for the country as a whole. To understand how reforms to
government, anticorruption included, are limited or interrupted, it is necessary to
understand the basic political institutions of a country.
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debate sobre la reelección legislativa en México (Mexico City: Fondo de Cultura Económica):
33–53.
Weldon, Jeffrey (2004). “Changing Patterns of Executive-Legislative Relations in Mexico”, in:
Middlebrook, K.J. (Ed.), Dilemmas of Political Change in Mexico (London, Institute of Latin
American Studies, University of London): 133–67.
Winecki, Jan (1996). “Why Economic Reforms Fail in the Soviet System: A Property Right-Based
Approach”, in: Alston, Lee J.; Eggerston, Thrainn; North, Douglass C. (Eds.) Empirical
Studies in Institutional Change (Cambridge: Cambridge University Press): 63–91.
Chapter 13
Institutional Path Dependence
in the Failure of the “War on Drugs”
in Mexico
Jorge Javier Romero
Abstract There have been many critics of the way the Mexican government has
confronted the problems related to drug market regulation but just a few of those
critics have focused on the legacy of different institutions and the development of
local powers such as the figure of the caciques. This chapter provides a critique of
the so-called “war on drugs” from an institutionalist perspective which considers
the existing tensions in Mexico between the formal legal order and the informal
institutions that really prevail in the country.
! ! !
Keywords Cacicazgo Clientelism Drugs regulation Violence War on drugs !
Many criticisms have been written about the prohibitionist approach that the
Mexican government has adopted with respect to drug market regulation, an
approach that ended with the Army, the federal police and the Navy in open frontal
war against the drug trade. Those criticisms have been launched from very diverse
fronts: human rights, social costs, market inefficiency, as well as in terms of
objectives achieved as public policy like security and the “recovery” of the rule of
law. Nevertheless, few of them, if any, have focused on the influence of institutional
history on drug policy and the institutional trajectory of the local power allocation
that constrains it.
This article is a critique of the so-called “war on drugs” from an institutionalist
perspective, which considers the existing tensions in Mexico between the formal
legal order and the informal institutions that really prevail in the country. I argue
that the keys to understanding the failure of the strategy assumed by the last two
governments underlie the process of institutionalization of local authority: the way
Research Professor C, of the Department of Politics and Culture at the Universidad Autónoma
Metropolitana Xochimilco attached to the Public Policies area, and professor of the postgraduate
division of the Faculty of Political and Social Sciences of the UNAM. Professor Romero has
carried out research visits at the Institute of Advanced Social Studies of the Spanish National
Research Council and has given lectures at different universities and study centers in Mexico and
Spain. He is currently on sabbatical at the Drug Policy Program of the CIDE Centro Region,
where he directs the Diploma in Drug Policy and the Internal Seminar of the PPD; Email:
[email protected].

https://doi.org/10.1007/978-3-030-31314-2_13
224 J. J. Romero
in which local political intermediation has been institutionalized in Mexico since

the nineteenth century. The local power in Mexico is based, to this day, on the way
of doing things inherited from the figure of the cacique. The formal institutional-
ization of the Mexican state has finally assimilated the informal mechanisms of
reduction of violence characteristic of the cacicazgo, that consolidates (as an
informal institution) a framework of negotiation and disobedience parallel to the
legal order. The cacicazgo emerges as a mechanism of clientele administration that
exercises control over local populations as a bargaining chip in perpetual negoti-
ation with federal political leaders.
Any prohibitionist approach is doomed to fail, while the de facto distribution of
power that exists between the caciques and their localities remains unchanged.
In this article I consider the implications of analysing the cacique1 form of
political intermediation from a path-dependent perspective and analyse the his-
torical trajectory of drug regulation in Mexico and how it reflects the constraints
established by the cacicazgo path dependency. Finally, the concluding section
iscusses the implications of the study on Calderon’s policy decisions, as well as any
other prohibitionist approach.
13.1 The Informal Institutionalization of the Cacique

Intermediaries
With the independence of Mexico and the subsequent formal institutionalization of

the liberal republic, a contradiction arose between the legal order and the traditional
forms of local power, which during the Viceroyalty lay with the traditional
authorities, who had operated as translators between different orders: those of the
1
The word cacique comes from the Caribbean aboriginal languages and is adopted by the Spanish
Empire as part of a legal scheme that seeks to regulate the administration of the colonies in
America (Zermeño Padilla 2017: 297). In its origins it refers to a formal institution legitimized by
the political organization of the conquest. The first lexicographical reference in which the concept
is mentioned dates from 1729 and describes cacique:
as a synonym of lord among the Indians. From the same concept derives “cacicazgo” to
designate the territory under the rule of the cacique. Therefore, cacique is the dynastic
feudal lord who had legal privileges and the right of family succession. It was a noun used
by the Spaniards to identify […] those who commanded, the chiefs of the people (Zermeño
Padilla 2017: 298).
What I am interested in highlighting in this first definition is that the cacique is not yet seen as a
despotic ruler who operates outside the law or in a kind of “middle” between the established legal
order and informal political negotiation. He is not yet “the little despot who distributes at his whim
all the positions in his territory […] in the community nothing is done without first having his
approval” (Zermeño Padilla 2017: 305). Its existence is recognized by the Old Regime and the
Crown and regulated by law in the Recopilación de Leyes de los Reynos de Indias, as referred by
Guerra (1988: 201).
13 Institutional Path Dependence in the Failure … 225
communities, with their uses and customs recognized by the Crown, those of the
manorial order of the haciendas, and that of the colonial bureaucracy. These were
formally recognized authorities, but with the dissolution of the Spanish legality they
were demoted to informality. The advent of the new liberal legal order displaced the
figure of the cacique, excluding him from the legal organization of the territory
(Zermeño Padilla 2017: 310–312).
However, this displacement did not mean the end of the cacicazgo as an insti-
tution; it only transitioned from the formality of the law to the informality of the
political turmoil. François-Xavier Guerra rightly notes that the cacique (whether his
authority is legal or not) serves as an intermediary between the governed people and
the representatives of the new liberal state and, therefore, it is necessary:
For the governed, for traditional society, whose system of authority is totally
different, someone is needed to act as an intermediary with the representatives of
the modern State, to translate the language of politics, demands, rejections, reac-
tions … This relationship between two heterogeneous worlds is assured by the
cacique. He is at the same time an authority of the traditional society and a member
of the political culture of the political people and machinery of the modern State.
The existence of the cacique is all the more indispensable as the separation between
the two worlds is greater. […] Articulation between two heterogeneous ‘peoples’ is
an illegal power, hidden, shameful, but inevitable (Guerra 1988: 201).
It should come as no surprise that, despite being displaced from the legal order,
the cacique has been an essential part of the new regime. Since its formation, during
the nineteenth century, the Mexican State has been a social order of limited access,
where the basis of social organization has been personal relationships: who one is
and who one knows. Personal interaction, particularly between powerful individ-
uals, has determined access to wealth and limited opportunities for the weakest – a
natural state2 in which access to the law has been limited to a few, and has been, in
any case, a framework for negotiating disobedience according to the resources,
power or influence of each one. The reduction of violence has been carried out as a
result of pacts concerning the distribution of parcels of income extraction among
those included in the power coalition. The state protections have extended only to
those who pay directly for them or to the political clienteles in which the members
of the pact of domination sustain their domain. In order to do business, to obtain
services or to disobey the law, particular protections obtained through personal
relationships with those who have the capacity to extend patronage have been
required.
2
The limited access order (or natural state) emerged between five and ten thousand years ago, and
was associated with increasing scale of human societies. Increasing scale is accomplished through
a hierarchy of personal relationships between powerful individuals. Personal relationships among
the elite form the basis for political organization and constitute the grounds for individual inter-
action. A natural state is ruled by a dominant coalition; people outside the coalition have only
limited access to organizations, privileges, and valuable resources and activities (North et al. 2009:
56).
226 J. J. Romero
The uneven process of building an organization with a competitive advantage in

violence, capable of controlling the population and the territory of the whole
country, took more than fifty years, until finally a state organization with a pre-
dominance of social relations organized by personal lines was institutionalized,
which included privileges, very marked social hierarchies, a very unequal appli-
cation of the law, arbitrarily defined property rights, and racial, culturally based,
discrimination. Inheritor to the institutional trajectory of the Viceroyalty, the State
that emerged from the liberal victory, consolidated during the dictatorship of
Porfirio Díaz, generated mechanisms to reduce violence based on the sale of par-
ticular protections and the control of clienteles.
13.2 The Negotiation of the Law Through Intermediaries

as a Path-Dependent Dynamic for Drug Regulation
Although the institutional displacement described in the previous section should not
be a surprise given the foundational conditions of the Mexican State, it is especially
relevant that the political discussion between the federal elites and the local
authorities has abandoned the domain of the law in favor of informality. As we
argue below, this transition constitutes a critical moment in the development of drug
regulation policy, since it is during this historical juncture that local and federal
incentives were established to give rise to black market and reinforce it.
A path-dependence approach3 makes it possible to identify a critical historical
juncture in the institutional trajectory of cacicazgo. Given the limitations of this
article, the criterion for identifying this historical juncture is the clear and consol-
idated establishment of a new incentive scheme for the main actors involved in the
institution – in this case, the transition from the cacicazgo of a formal institution to
a competing informal institution.
This transition covers the years between the consolidation of the liberal republic
and the end of Porfiriato by the Mexican Revolution. During this period the
caciques now deprived of the legitimacy of legality accumulated power, gained
loyalties and fought against liberals, conservatives and French alike. After the war
against French intervention, caudillos with territorial control of a cacique character
maintained a tense relationship with the central power. Many of them supported the
rebellion that led Porfirio Diaz to power, which preserved their local strength, and
although it is true that they were gradually replaced by operators loyal to the
national leader, they ended up using the same methods of reducing violence based
on the negotiation of disobedience and the sale of particular protections that
3
The idea of a path-dependent trajectory encloses a logic of increasing returns which could also be
described as self-reinforcing or positive feedback processes. A process in which the “costs of
switching from one alternative to another will, in certain social contexts, increase markedly over
time” (Pierson 2000: 251).
allowed them to maintain control, given the high transaction costs and the huge
agency problem that prevailed in Mexican politics.
Eventually, those strategies gave way to Porfirian pax and the cacicazgo con-
solidated in what Helmke/Levitsky (2004) called a competing informal institution:
socially shared rules, usually unwritten, that are created, communicated, and
enforced outside officially sanctioned channels that coexist with ineffective formal
institutions that are not systematically enforced, which enables actors to ignore or
violate them, producing results which diverge from those that the formal institution
was supposed to obtain. “These informal institutions structure incentives in ways
that are incompatible with the formal rules: to follow one rule, actors must violate
another” (Helmke/Levistky 2004: 729).
During the Porfirian pax the cacique forms of political intermediation reached a
point of equilibrium. The new incentive scheme became inert and, consequently,
the costs of deviating from the trajectory that it drew increased (Pierson 2000: 263).
Paradoxically, the concentration of power around the person of Díaz gave greater
territorial extension, freedom of action and discretion to their caciques than they
would have enjoyed under the Old Colonial Regime (Guerra 1988: 202).
At this point we can see a clear path-dependent logic that was deepened thanks
to different aspects of the new relationships between the three main actors that make
up the cacicazgo: settlers, caciques and representatives of the federal government.
The new arrangement increased the power asymmetry between the settlers and the
caciques who de facto ruled the land. Territorial divisions were drawn in the
municipalities to meet local power arrangements. The reduction of violence and the
sale of protections allowed economic growth, although this followed the pattern
described by John Coatsworth:
The interventionist and pervasively arbitrary nature of the institutional environment forced
every enterprise, urban or rural, to operate in a highly politicized manner, using kinship
networks, political influence, and family prestige to gain privileged access to subsidized
credit, to aid various stratagems for recruiting labour, to collect debts or enforce contracts,
to evade taxes or circumvent the courts, and to defend or assert titles to land. Success or
failure in the economic arena always depended on the relations of the producer with
political authorities – local officials for arranging matters close at hand, the central gov-
ernment for sympathetic interpretations of the law and intervention at the local level when
conditions required it. Small enterprise, excluded from the system of corporate privilege
and political favours, was forced to operate in a permanent state of semiclandestinity,
always at the margin of the law, at the mercy of petty officials, never secure from arbitrary
acts and never protected against the rights of those more powerful. (Coatsworth 1990: 94)
The legal order that was constructed at the time was clearly biased in favor of
those with sufficient negotiation capacity to buy the protection of the state orga-
nization, embodied in local agents of different hierarchy and in the governors and
military chiefs, institutionalized forms of the former caudillos with local territorial
control. The disobedience of the law was negotiated everywhere, and its protection
was bought, either with rent parcels or with political reciprocity.
This legal order designed to resolve the conflicts of power between the different
regions of the country (but nothing else) provided the incentives for the emergence
228 J. J. Romero
of illegal markets based on the power of the figure of the cacique. Some even used
these markets to strengthen their influence in their regions.4
This was the institutional context in which caciquism became rooted in society
and in the political structure of the country in such a way that it could survive the
cataclysm of the Mexican Revolution. The civil war was followed by the recon-
struction of a basic natural state that reproduced the characteristics of the previous
arrangement. The successive crises of violence, however, were resolved in a pro-
cess of gradual institutionalization, over more than two decades, until it reached its
final form in the 1940s, which in the end solved the problem of the circulation of
political elites and presidential successions without modifying the basic features of
the institutional pattern based on the rentier control of a narrow coalition of interests
(Acemoglu/Robinson 2012).
The political pact that was consolidated in 1946, from which emerged the
definitive form of the regime’s party, the Institutional Revolutionary Party (PRI),
represented the arrival of the social order of limited access to maturity.5 The sta-
bility of the classical period of the PRI regime (1946–1982) was characterized by an
intricate institutional arrangement, structured around formal and informal rules that
regulated both the particularistic appropriation of sources of income and the cir-
culation of political elites. The legal order of the PRI regime was a direct heir of the
way in which the law in Mexico had been institutionalized since the Porfiriato: as a
framework for the negotiation of disobedience and the sale of particular protections.
That was the mechanism for reducing violence and the framework in which busi-
ness could be successful, which, under these conditions, did not have to be
exclusively ‘legal’. During the years of economic and political stability after the
1946 agreement, those protected by the regime obtained great benefits: the entre-
preneurs dedicated to production for the domestic market, who were protected from
foreign competition; the union leaders who were granted the monopoly of labour
representation and exclusive usufruct of union dues while being allowed to charge
4
Such is the case of Mucio Martínez in Puebla:
In Puebla, an old comrade in arms of Diaz, Mucio Martinez, held the governorship for 18
years (this was not a record: Cahuantzi, in Tlaxcala, served for 26 years and others, more
than 20), was enriched by the illegal operation of canteens, brothels and the state monopoly
of pulque. With the complicity of its officials – notably that of its police chief, Miguel
Cabrera – it was, even for Porfirian parameters, the prototype of a corrupt and arbitrary
ruler; “When in a country the President of the Republic is called Porfirio Díaz, and the
Minister of Finance José Yves Limantour, the King of Journalism, Rafael Reyes Spíndola
and a State Governor, Mucio P. Martínez [declared an opposition speaker], the revolution is
a must…” (Knight 2010: 34).
5
A mature natural state is characterized by durable institutional structures for the State and the
ability to support elite organizations outside the immediate framework of the State. Both char-
acteristics distinguish the mature natural state from the basic natural state, but to reiterate, the
differences are of degree rather than of kind. At the limit of the spectrum, a mature natural state is
able to create and sustain perpetually surviving organizations, but that is not a common feature of
mature natural states.
employers for the docility of workers; bureaucrats who sold public services; and
organizations that were granted some monopoly of services in exchange for their
political allegiance, to name just a few.
The sale of private protections was carried out through two networks: bureau-
cratic and corporate. During the classic era of the regime, the bureaucracy peace-
fully controlled the territory, marginalized the military from power – although it
granted them control of certain protection sales plots – and depersonalized the
presidency by making it the apex of a career managed from a system of clientelist
incentives that rewarded discipline and political loyalty over any other bureaucratic
virtue. The knowledge or the administrative efficiency could return, but without
belonging to a network of clientelist reciprocity nobody could ascend in the hier-
archical scale.
The second network, dependent on the first, but with a lot of bargaining power,
was constituted by political intermediaries – trade unions or peasants’ leaders,
leaders of marginalized groups, like market tenants, street traders, taxi drivers or
shoe shiners – who maintained the peace of their clienteles and administered the
state protections and budget spill-overs that the bureaucracy destined to serve the
popular sectors. Both networks came together in the PRI, a cloak of identity and a
mechanism for resolving conflicts and distributing rent plots. The head of the
network of networks – the final arbitrator of the settlement – was the President of
the Republic, an heir to the attributes of the founding leader of the basic natural
state, Porfirio Diaz, but only for six years.
The administration of justice was strongly politicized, since at both the federal
and local levels the public prosecutors and the judiciary were extremely dependent
on the executive powers, incarnated in the states of the republic in the governors,
who were nothing more than institutionalized cacicazgos of sexennial duration, in
the image and likeness of national power, but completely subordinated to it. The
judicial systems were networks of clienteles with strong ties of reciprocity that
eliminated any possibility of independence of judges or magistrates.
13.3 The Flimsy Rule of Law and “Substances

that Degenerate the Race”
Thus, in Mexico, the laws have always been a framework of negotiation of dis-
obedience, rather than a socially accepted set of rules of the game to solve the
problems of cooperation and competition in Mexican society. The legislation on
drugs was not, of course, an exception. The prohibition of drugs began in Mexico
almost from the approval of the Constitution of 1917, after the Revolution (Romero
2017), even though it was not a matter of special relevance for public policy.
Although the issue of “substances that poison the individual and degenerate the
race” was a concern of the Constitution makers, who explicitly ordered the General
230 J. J. Romero
Congress, the legislatures of the States and the Council of General Health –
dependent of the Presidency of the Republic – to carry out anti-alcoholic actions
and oppose the sale of nerve-damaging substances, the legislation derived from that
constitutional mandate was only applied with rigor in exceptional cases. In fact, the
faculties on the matter were given to the General Health Council and were not
established as criminal matters until more than a decade later.6
The first specific regulations of the constitutional mandate in the matter were the
Provisions on the trade of products that can be used to foment vices that degenerate
the race and, on the cultivation of plants that can be used for the same purpose of
15 March 1920. The Provisions were essentially of a health nature, as they did not
imply criminal sanctions. Opium could even be cultivated in the country, despite
the international alarm over the substance, decreed since the international treaty
signed at the Second International Opium Conference, held in The Hague in 1912,
of which Mexico was a signatory. To cultivate opium in Mexican territory, it was
enough to have the permission of the Department of Public Health, while the text
established that “the cultivation and trade of marijuana was strictly prohibited”,
despite its use for centuries in traditional Mexican therapies. Thus, an illegal can-
nabis market was born, which generated profits for both those who trafficked the
plant and those State agents who protected the clandestine market, as shown in an
episode in the tremendista novel Epitalamio del Prieto Trinidad, first published in
1942 by the Spanish writer exiled in Mexico, Ramón J. Sender, in which he
describes how corruption had become the agreement regarding drugs. The pro-
tagonist of the story, a bad-tempered military man in charge of an insular prison
inspired by the Marias Islands, walks through the corridors of a market in the
capital and approaches the stall of the herbalist who sells marijuana. He threatens to
report her it if she does not tell him who her provider was:
The old woman refused. Without losing stiffness she dropped a fifty-peso bill at Trinidad’s
feet.
– Excuse me, my boss. Something fell out of your pocket. Trinidad picked it up.
– I dropped two. Where is the other one?
“Here it is,” the old woman said quickly. I had taken it from the ground without knowing
(Sender: 1966).
It was the Penal Code of 1931 that established with precision that crimes against
health were a matter of federal jurisdiction. New forms of delinquency were defined
around the drug trade, and penalties were hardened. That code would set the tone
for the approach to drug policy during the following years: addicts were considered
6
In that order, while morphine, opium, heroin and cocaine were recognized as medicinal, so they
must be subject to state regulation for sale, marijuana was completely banned, thus Mexico
anticipated the prohibitionist wave because in the United States it was not until 1937 that the
prohibition of cannabis was consolidated with the Marihuana Tax Act.
ill, not criminals, although the legal formulation left a lot of room to criminalize
them, which opened the space for consumer extortion.7
The sanitarian vision regarding drugs was consolidated with the Sanitary Code
of 1934. However, in the final months of the government of Lazaro Cárdenas, in
1940, a new regulation of drug addiction was approved, which meant a pioneering
attempt to start what is known today as harm reduction policy. According to that
ordinance, of ephemeral validity since it was suspended just six months after it was
approved owing to pressure from the United States, the government would provide
drugs to those addicted at cost price in order to eliminate the clandestine market.8
The pressure exerted by the United States against the regulation did not waver.
Roosevelt’s government halted the export of medicines to Mexico until the measure
was repealed and, as the other major producer of pharmaceutical products was
Germany, which was at war and therefore trade with it was interrupted, Cardenas
had no choice but to suspend the regulation just a few months after its entry into
force. It remained suspended until it was repealed by the enactment of a new Health
Code in 1973. However, the regulation had been effective, during its short term, in
reducing the clandestine market and police extortion.
Throughout the classic period of the PRI regime (1946–1982), drug policy
towards consumers remained pragmatic without major changes in the legal
framework. The forced internment for the rehabilitation of addicts was abandoned,
and the prohibition established in the Penal Code was maintained, without formally
criminalizing consumers, but with huge margins of arbitrariness, so that, in practice,
they were constant victims of extortion or imprisonment. Thus, the clandestine
internal market was managed in accordance with the generalized mechanism of the
relationship between the State and society: the particular negotiation of disobedi-
ence with authority agents. Consumers could be imprisoned or not by simple
possession, at judges’ discretion, if they did not reach an agreement beforehand
with the police or the public prosecutor. The judge decided if the amount possessed
could be considered commensurate with personal consumption or if it merited penal
sanction. To be exempted from crimes, users of substances had to declare them-
selves addicted.
7
To close this margin somewhat, the Federal Code of Criminal Procedures established a “proce-
dure for drug addicts”, which stated that if the Public Prosecutor’s Office found that the purchase
or possession of drugs was solely for “the personal use of them by the accused”, it would not
exercise criminal action. This is an important precedent of the legislation currently in force, which
uses the non-exercise of criminal action for people who possess the prohibited substances in
quantities within the thresholds established by a table in the General Health Law of the maximums
regarded as personal doses for immediate use.
8
That regulation was perhaps the first norm in the world to adopt what is now known as the harm
reduction approach, which is based on the recognition that the best way to deal with the prob-
lematic consumption of substances is from a health perspective, with measures that keep users
away from criminal circuits and do not consider users criminals – to avoid extortion and
harassment by the police – with the provision of substances produced in adequate sanitary con-
ditions and without adulterations, which are more dangerous than the substances themselves.
232 J. J. Romero
This changed as a result of the reforms called “small drug smuggling law” of
2008, already in full “war against drugs” unleashed by President Felipe Calderón.
Various articles of the penal code and the General Health Law were modified to
differentiate drug trafficking from small drug dealing, to empower local authorities
to pursue the second and to differentiate consumers from small traffickers. A table
of thresholds for the amount of possession recognized as acceptable as a dose for
immediate consumption was then established in the General Health Law. Thus, it
was established that the maximum dose of personal and immediate consumption of
marijuana would be 5 g, opium 2 g, heroin 50 mg and cocaine 500 mg. Regarding
other substances listed, the established thresholds are equally low. Any amount
above the threshold is already considered simple possession, worthy of imprison-
ment, even if the intention to trade it is not proven.
13.4 Traffic to the United States and the Sale of Local

Protections
By the mid-1930s, the issue of illicit drug trafficking to the United States began to
gain importance, as the prohibition in that country advanced. During the years in
which the XVIII Amendment of the Philadelphia Constitution was in effect, the
clandestine alcohol market from Mexico to the neighbour of the north had been
significant, but once the prohibition was abolished, it was the turn for trade in illegal
psychotropic substances.
Until then, Mexico had not been a relevant producer of prohibited substances,
with the exception of cannabis; however, during the Second World War, with the
return of the US soldiers who had participated in the conflict, the demand for illegal
opiates increased notably in the United States. Many wounded servicemen who had
been treated with morphine had become hooked and were not given any substitute
treatment. Hence, poppy production destined for the clandestine market skyrock-
eted in northern Mexico, especially in the region known as the “golden triangle”, at
the confluence of the states of Sinaloa, Durango and Chihuahua. That trade soon
became protected by the Army, with low levels of violence, after the governor of
Sinaloa was allegedly killed in 1944 by order of opium producers in the region
(Resa Nestares 2005).
The armed forces were part of the arrangement of the classic era of the regime
and their leaders and officers obtained, in exchange for their discipline and loyalty,
margins for the private use of their positions of power in defined areas of influence.
Like the rest of the agents of the State, the military were able to use plots to extract
payments privately, among them the administration of the illegal drug markets.
Indeed, this is a difficult conjecture to prove convincingly due to the clandestine
nature of the activity and the veil of secrecy with which the armed forces were
protected during the classic era of the regime. During most of the PRI regime, the
issue of drug trafficking was treated as a matter of low importance, as an issue that
was regulated by the traditional protection-selling mechanisms with which the

different instances of the State operated.
During the 1940s and 1950s, opium was the main illegal substance exported to
the United States, but beginning in the 1960s, marijuana began to be the most
exported drug through illegal networks. The popularization of cannabis use among
young Americans during the so-called “prodigious decade”, whether among the
hippy movement, among the opponents of the Vietnam War, or among the rock and
roll fanatics, caused Mexican production to grow substantially and their market to
spread.
The levels of violence connected with clandestine drug trafficking to the United
States remained low until Richard Nixon declared the “war on drugs” in 1971 and
began to pressure the Mexican government to undertake campaigns to eradicate
poppy and marijuana crops. The so-called “Operation Condor”, begun in 1975
during the government of Luis Echevarria, implicated the Army in the destruction
of crops and the confiscation of shipments, although this stopped neither production
nor traffic, nor ended the sale of protection by the authorities. Later, during the
government of Ronald Reagan, the pressure on the Mexican government increased
again, especially after the murder of DEA agent Enrique Camarena in 1985. During
those years the Drug Certification Process was established. It subsisted until 2002
and evaluated the cooperation efforts of the producing or transit of substances
countries with the drug policy of the United States; if a country was not certified,
bilateral assistance was suspended, and financial and commercial sanctions were
imposed. Although between 1987 and 1999 there were five years in which reso-
lutions against certification were initiated in the US Congress, Mexico managed to
pass the test during all the years of its validity.
The United States pressures focused on the seizure of caches and the eradication
of plantations, not in respect of legality or the strengthening of the rule of law; thus,
the “war on drugs” only increased the costs of the protection sales, exacerbated the
corruption of the arrangement and increased its levels of violence.
During all those years, since 1977, Mexico experienced a gradual democrati-
zation process that culminated in a new political pact in 1996, from which the PRI
lost the political monopoly and the government stopped controlling elections.
Although the democratization process reduced the degree of arbitrariness in the
application of the law, this was only reflected in the scope of the elections and in the
issues that reach the Supreme Court of Justice, converted since 1995 into a con-
stitutional court. In the rest of exercise of power areas, the application of the law has
continued to be discretionary, the negotiation of disobedience continues to pre-
dominate and the selling of the State protection in particularistic manners has not
stopped.
The new arrangement did not change the rentier character, based on clientelist
reciprocity, of the political settlement, because it kept the spoils system in the
distribution of public employment and did not generate enough solid institutional
mechanisms to replace the private negotiation of the obedience with the law with an
effective and legitimate rule of law.
234 J. J. Romero
With the end of the political monopoly and the defeat of the PRI in 2000, the
local and municipal governments acquired autonomy to manage the sale of private
protections without the limits imposed by the strict party discipline and centralized
arbitration in the Presidency of the Republic. Political competition did not reduce
the rentier scramble but instead increased the demand for public resources to pri-
vatize. The distribution of power no longer had a centralized mechanism, as in the
classic times of PRI presidentialism, but instead had multiple actors with
decision-making power over money and budgets.
13.5 The loss of Territorial Control by the State

and the Increase in Violence
This recovered autonomy, which reproduced the mechanisms of control of parcels

of income existing before the 1929 agreement (the pact of pacification from which
the regime of the PRI emerged), had particularly notable consequences in the
management of clandestine markets, especially that of drugs. The arrangement
which developed during the classic era of the PRI regime in relation to the clan-
destine market for drugs generated mutual benefits for drug traffickers, police and
the Army. It became the pragmatic way of dealing with the nonsense of the pro-
hibition imposed from abroad, while the demand for substances in the United States
maintained a growing trend. Cyclically, the American pressure required persecution
actions, more aimed at showing public opinion the commitment to fight drug
trafficking than to achieve eradication, which was impossible. That perverse
arrangement allowed the enrichment of drug lords and increased their capacity to
recruit personnel to their service and to arm themselves.
With the end of the monopoly of the PRI, without the previous control mech-
anisms, the local appropriation of the rents was exacerbated, and the local security
agencies were out of control, inasmuch as the operative force of organized crime
grew, thanks to the benefits obtained from the clandestine drug markets, whose
protection costs were reduced due to the fragmentation of the negotiation. The
strengthened cartels, already with a good organizational infrastructure and weapons,
began to diversify their operations towards predatory crimes, while the high degree
of impunity generated by a system of crime control based on arbitrariness and the
corruption of the police opened windows of opportunity for the growth of crime not
linked to drug trafficking.
The model of authoritarian order had already reached crisis point when Felipe
Calderón became President in 2006, but instead of opting for in-depth reform, his
government intentionally chose to replace local forces and their pacts with a con-
sortium of the Army, the federal police and the Navy to open a frontal war on the
drug trade – no matter how much he tried to justify himself later by saying that it
was against organized crime as a whole – but without developing strong judicial
control mechanisms for its action, based on respect for the legal order, which
resulted in an outdated form of exercising State power that eventually provoked one
of the greatest violence crises in the already violent history of Mexico and a
disproportionate increase in the violation of human rights (Madrazo et al. 2018),
already inherently violated by the traditional forms of police arbitrariness. The
emergence of federal forces in the fight against drug trafficking not only disrupted
existing agreements between traffickers and local authorities, but also broke the
traditional order of clientelist reciprocity that contained other forms of crime and
violence. The frontal war did not reduce, however, the economic incentives for the
production and trafficking of drugs (Romero 2018); on the contrary, it increased
them, because the rise in prices caused by the attack meant that where a capo fell,
and an organization was destroyed, several others arose with the intention of
fighting for the market.
The way in which the mechanisms for reducing the violence of the old regime
deteriorated with the eruption of plurality can be observed in what happened in the
state of Michoacán. There is a need for serious and well-documented studies on
how the rupture of the PRI that was experienced in that entity in 1988 and the
faction struggle that developed in a large part of its regions after the split from
which the PRD was born affected the rules of the game of the traditional order. The
role played by the decomposition of the settlement in the increased capacity for
violence of the groups of traffickers, who controlled the region to dominate the
routes for transferring cocaine and other narcotics to the United States, is clearer.
The resulting situation of chronic economic stagnation that made Michoacán one of
the greatest expellers of workers towards the North American market is no less
relevant in the decomposition of the political network.
The fact is that gradually, over the last three decades, in Michoacán the predatory
bandits, no doubt some of them descendants of those who exercised power under
the protective mantle of the PRI agreement, have been acquiring autonomy and
controlling territories because of its capacity for violence; it is they who impose
order. The huge profits of the clandestine drug market were the main source of its
original accumulation; that is where the resources that allowed them to arm
themselves and fight to impose their domain come from, although today they have
diversified their sources of income extraction and use their power as authentic State
substitutes. Why has the formal State lost control? There must be many causes to
explain it, but I think one of the fundamental ones is that, instead of a process of
democratization that strengthens the local order with a good base of social legiti-
macy, what happened was the dissolution of the old order in a messy and highly
disputed manner.
The attempt of the Calderón government to impose order based on federal forces
– it was in Michoacán that the first massive intervention of the Army and the federal
police took place to recover the lost ground in front of the cartels – ended by
dissolving the local mechanisms of the negotiated order and generated huge
asymmetries of information in the fight against criminal gangs. Instead of the
recovery of the state order, what happened was a kind of civil war that led to the
replacement of one band of bandits by another and a greater decline of state control.
236 J. J. Romero
The emergence of self-defence groups as a reaction to the State’s inability to

reverse the criminal control of the territory is not a good sign. Undoubtedly it is a
complex phenomenon, which has as one of its components social discontent at the
arbitrary extortion of the gangs, but the order thus imposed is not going to lead to an
efficient arrangement based on the legal order. It could serve, as Trejo (2014) has
pointed out, to reduce information asymmetries in the fight against bandits, based
on close knowledge of the local situation, which federal forces lack, and to wash the
face of the State in a frontal combat that implies violations of human rights and
intolerable actions by the forces of the legal order, but nothing guarantees that once
these groups control the territory they do it according to the principles of the rule of
law (Guerra 2018).
The route started in Michoacán was generalized in different areas of the country,
but more than a decade after the strategy of “frontal and effective combat against
drug trafficking” was launched, the so-called “war on drugs” has not achieved the
proposed objectives – recover the strength of the State and security in social
coexistence – nor others commonly associated with the repression of drug traf-
ficking, such as reduction in the production, trafficking and sale of illegal sub-
stances (UNODC 2017). Rather, the strategy has contributed to the metastasis of
violence that the country has experienced. That is, the “war against drugs” – the
substantive militarization of the repression of drug trafficking and organized crime –
has not only failed to strengthen the State and provide security for social coexis-
tence, but, according to the growing accumulation of evidence, the effects of this
policy have been very negative, because the logic of the strategy to combat drug
trafficking has not been to use the law to stop offenders, but to eliminate opponents
by means ofa war logic, even though this is outside the law (Madrazo et al. 2018).
The increase in violence has had several causes; for example, as organized crime
groups have transformed their activities and become more dependent on the control
of local territories, the alternation of political parties in the municipal power
increases the violence related to organized crime in the short term by destabilizing
state protection networks. The municipal alternation generates uncertainty among
organized crime groups around the protection pacts and consequently wars can be
generated between and within criminal gangs (Bejarano 2018). Undoubtedly, the
intervention of the armed forces has been a trigger for violence and the Army and
Navy have contributed to the growth of the homicide rate in the country (Silva
Forné et al. 2012) (Madrazo et al. 2018), which by 2017 had reached around
twenty-four homicides per hundred thousand inhabitants.
The “war on drugs” has had a notable impact on the formal institutional
framework of the Mexican State, since from the approval in 1996 of the first
Federal Law against Organized Crime, the individual guarantees established in the
Constitution began to be affected. The “constitutional costs” of the war became
clearly evident with the creation of:
(…) a special criminal regime – of reduced rights, and amplified police powers and dis-
cretion – to prosecute “organized crime”. This regime was adopted in the same process of
reform in which the ordinary criminal procedure was reconfigured radically in order to
make it transparent and strengthen the rights of the victims and the defendant, based on an
adversarial logic and through the oral requirement of the process. Transparency and
guarantees as guiding principles of the criminal process, however, were not admissible for
all citizens (…) (Barreto/Madrazo 2015: 165).9
The “constitutional costs” of the war against drug trafficking have continued to
accentuate, because in 2017 the government of Enrique Peña Nieto managed to get
the majority of the Congress of the Union to approve the Internal Security Law,
despite the arguments presented against from the academy, most of the civil
organizations dedicated to security and human rights issues, the UN High
Commissioner for Human Rights, the Inter-American Commission on Human
Rights, as well as a good number of intellectual personalities with an impact on
opinion public.
The armed forces have been aware that their deployment by the country to offset
the incapacities of the police and investigative bodies in the fight against crime was
clearly in violation of the constitutional Article 21, reformed in 2008 – hence their
insistence that they be given a legal framework for action, in anticipation that their
actions could be the object of accusations in the international justice system. In the
absence of a solid constitutional argument able to sustain the discretionary opera-
tions that have so far been carried out, because Article 21 is very clear in reserving
the tasks of public security to civil bodies and in putting the investigation of crimes
under the responsibility of the public prosecution, they accepted an archaic con-
stitutional concept, lost in the sixth section of Article 89 of the Constitution,
whereby the President of the Republic is empowered to “dispose of the totality of
the permanent armed forces: the Army, the Navy and of the Air Force, for the
internal security and external defence of the Federation”. Thus, in the law of 2017
the term “internal security” was used as a subterfuge to overturn the express pro-
hibition that the armed forces intervene in public security tasks, but without giving
it a clear definition.
The law was declared unconstitutional by the Supreme Court in December 2018,
but that same day the new President, Andrés Manuel López Obrador, presented a
proposition to reform the Constitution and create a militarized National Guard. The
reform that creates the National Guard reproduces the essence of the failed Internal
Security Law, but removes the restrictions so far raised by Article 21 of the
Constitution, to avoid a new intervention of the Judicial Power against it.
9
The special criminal regime created for organized crime and drug trafficking includes the pos-
sibility of subjects being detained without communication and without formal charges for up to
eighty days if deemed necessary for any investigation of “organized crime”; an incarceration
withholding extended twice as long (four days) as in the ordinary penal system, before being made
available to the judge; incommunicado in jail (except communication with their defense lawyers);
the compurgation of sentences in “special” detention centers, separate from the general population;
an authorization to establish measures, not specified, of “special” surveillance and without the right
to know who the accuser is. All these measures are constitutionally prohibited in the “ordinary”
criminal justice process and attack the general meaning of the first title of the Constitution,
dedicated to human rights (ibid.).
238 J. J. Romero
13.6 Conclusion
Mexico is immersed in a process of transition from a social order of limited access

to one of open access. The traditional forms of violence reduction, based on the sale
of private protections and the clientelist distribution of public benefits, are sinking
throughout the country, but formal institutions capable of reducing violence based
on the universal application of legality and the use of state force in a way that is
fully attached to the legal order and with widespread social acceptance has not yet
been completed. Democratization has had an adverse effect on violence, insofar as it
has not occurred on the basis of a solid, professional and trained civil service that
does not depend on the permanence of elected officials. The spoils system that
characterizes the Mexican State in terms of the distribution of public employment
has sharpened its defects with the alternation in power produced by competition
between parties.
The war on drugs has weakened federalism and local governments, instead of
strengthening them based on increased management capacities and adherence to the
legal order. Instead of promoting the creation of an effective state organization, with
local roots and committed to compliance with the law, the result has been a legal
order of exception and the maintenance of traditional mechanisms of negotiation of
disobedience and the sale of particular protections.
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regresión”, Nexos (February).
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‘guerra contra las drogas’. Análisis de los combates de las fuerzas públicas 2006–2011”, in:
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[CIDE]).
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Chapter 14
Reversal of Fortunes: Changes
in the Public Policy Environment
and Mexico’s Energy Reform
Tony Payan
Abstract From recent reexaminations of the relationship between politics and

public policy, it has been found that the structure of public policy produces its own
politics, just as politics produces its own type of public policy. The argument is that
public policy generates its own incentives and resources and provides actors with
information and cues that encourage their political views and convictions, but they
also influence other actors – including political opposition groups, interest groups,
and the masses – to articulate their own alternatives more accurately and push back,
sometimes threatening public policies that appeared to have enjoyed a broad
political consensus.
Recent developments in Mexico do suggest that the public policies of the last
three decades have indeed produced significant political consequences – and
resistance – all of which now threaten the sustainability of the public policies of
democratization and liberalization that the country has pursued over the last three
decades. The main political consequence is observable in the electoral results of
2018. The last general election caused a major change in the political and policy
alignment of the country because the winning party of the presidency and both
chambers, The National Regeneration Movement (MORENA), is a relatively new
Leftist political party that ran against the country’s status quo.
To explore these feedback loop dynamics and the resulting shift in the policy
environment we focus on energy reform precisely because it came to be identified
as the last (and major) step in what had been a steady pursuit of economic liber-
alization – or, as MORENA put it, the ultimate symbol of neoliberal politics that
had to be reversed.
! !
Keywords Corruption Democratic participation Energy reform MORENA ! !
! ! !
NAFTA Organized crime PAN Pact for Mexico PEMEX PRI ! !
Tony Payan, Ph.D., is the Françoise and Edward Djerejian Fellow for Mexico Studies and
director of the Mexico Center at the Baker Institute. He is also a professor at the Universidad
Autónoma de Ciudad Juárez. He has a doctorate degree in international relations from
Georgetown University and his research focuses primarily on border studies, particularly the
US-Mexico border, border governance, border flows and immigration, as well as border security
and organized crime. Email: [email protected].

https://doi.org/10.1007/978-3-030-31314-2_14
242 T. Payan
14.1 Introduction
Even before taking office as President of Mexico, Enrique Peña Nieto (2012–2018)
invested much of his political capital in piecing together a coalition of political
parties and leaders – a Pact for Mexico – to push for a number of structural reforms
to the country’s economic and political institutions.1 Once in office, President Peña
Nieto worked with both houses of Congress to make significant changes to the
Mexican constitution and pass a slew of legislation on telecommunications, edu-
cation, finance and fiscal policy, political institutions and elections, and energy – a
sector which had remained clad with nationalistic symbolism and largely closed to
private and foreign investment. Overhauling these sectors was to propel Mexico
into higher economic growth, which had been relatively low for the last three
decades, averaging barely above 2% per year (Fig. 14.1), and certainly insufficient
to lift millions out of poverty. In addition, these structural reforms were another
chapter in the remarkably long-lasting political and economic opening of the
country since the 1980s. In effect, compared with much of Latin America, Mexico
had enjoyed a broad political and social consensus on slow and imperfect but steady
progress toward democratization and the implementation of a market-based
economy.2
This broad consensus that underpinned the political and economic opening of
the country for thirty years was indeed notable and electorally tangible. Between
1988 and 2017 roughly two-thirds of all Mexicans consistently voted for the
National Action Party (PAN) and the Institutional Revolutionary Party (PRI), both
of which endorsed political and economic structural reforms very much along the
same lines. Figure 14.2 shows the total vote for these two right-of-center parties.
Mexico’s presidential elections, showing the total number of votes by PAN and
PRI, favoring a right of center agenda and a final collapse of their total vote in 2018.
When PAN and PRI total tallies are added, roughly two-thirds of Mexicans had
clearly supported the reforms over nearly thirty years.
1
Secretaría de Relaciones Exteriores (2012). Pacto por México; at: https://embamex.sre.gob.mx/
bolivia/images/pdf/REFORMAS/pacto_por_mexico.pdf (8 January 2019).
2
This is a general observation, as Mexico has received various rankings on both scores by different
organizations. On politics, Varieties of Democracy shows substantive progress on certain com-
ponents of Mexico’s liberal democracy (see https://www.v-dem.net/en/news/liberal-democracy-
mexico/), but others show a deterioration on many scores, including The Economist, which labels
Mexico a flawed democracy (https://www.economist.com/graphic-detail/2018/01/31/democracy-
continues-its-disturbing-retreat), Freedom House, which ranks Mexico as only partly free (https://
freedomhouse.org/report/freedom-world/2018/mexico), and Transparency International, which
places Mexico 29th out of 100 countries, primarily due to high levels of corruption (https://www.
transparency.org/country/MEX#), as well as The World Justice Project, which downgrades
Mexico on rule of law issues (https://worldjusticeproject.org/sites/default/files/documents/WJP-
ROLI-2018-June-Online-Edition_0.pdf). On economic freedom, Mexico has been ranked as
number 60 out of 177, indicating that progress has been made, but there is much more to be done
(https://www.theglobaleconomy.com/rankings/economic_freedom/) (All accessed on 8 January
2019).
14 Reversal of Fortunes: Changes in the Public Policy … 243
Mexico's Gross Domestic Product Growth (Annual %)

8.0 1988-2017
6.8 6.8
6.0
5.1 4.9 5.2 4.9 5.1
4.2 4.2 4.5
4.0 3.6 4.1 3.9 3.7 3.6 3.3
2.8 2.3 2.3 2.8 2.9
2.0 2.0
1.2 1.4 1.1 1.4
0.0 -0.4-0.04
-2.0
-4.0
GDP Growth -5.3
-6.0 -6.3 Average
-8.0
1989
1998
2007
2008
2015
2016
2017
1988
1990
1991
1992
1993
1994
1995
1996
1997
1999
2000
2001
2002
2003
2004
2005
2006
2009
2010
2011
2012
2013
2014
Fig. 14.1 Mexico’s gross domestic product growth (annual %) 1988–2017. Source World Bank
100.0%
Other Other Other Other Other
90.0%
Other PRD
PRD 80.0%
PRD
PRD
PFCRN 70.0%
MORENA
PAN 60.0%
PAN PAN
PAN 50.0%
PAN 40.0%
PAN 30.0%
PRI PRI
PRI PRI 20.0%
PRI PRI 10.0%
0.0%
1988 1994 2000 2006 2012 2018
Mexico’s presidential elections, showing the total number of votes by PAN and PRI, favoring
a right of center agenda and a final collapse of their total vote in 2018. When PAN and PRI
total tallies are added, roughly two -thirds of Mexicans had clearly supported the reforms over
nearly thirty years.
Fig. 14.2 Mexico’s presidential election results. Percentage of votes by party 1988–2018. Source
INE
Moreover, unlike other countries in Latin America, which have gone through
several political and economic transitions toward liberalization and numerous
reversals, Mexico anchored its own transformation by pursuing a path of integration
with the United States and Canada in North America. The North American Free
Trade Agreement (NAFTA), which was negotiated between 1989 and 1993 and
entered into effect on 1 January 1994, was simultaneously the cornerstone and the
crowning achievement of that pursuit. NAFTA was also a guaranteed way to
commit Mexico, presumably irreversibly, to a path of economic and political lib-
eralization by hitching its fate to that of its North American neighbors. Even though
Mexico was already well on its way to a market economy (Axelrad 1993:
244 T. Payan
201–222), NAFTA was Mexico’s way of legislating its own transformation from
outside (Rubio 2017). Thus, until recently, it would seem that politics and public
policy in Mexico reinforced each other.
The last election, as evident in Fig. 14.2, brought about a major shift in the
political and policy alignment of the country, however. The National Regeneration
Movement (MORENA), a relatively new Leftist political party that ran against the
country’s status quo, managed to get over half of the vote and now controls the
executive and both Chambers of Congress. Given that one of MORENA’s central
campaign promises was to reverse the policies of the last three decades, it is clear
that every structural reform that Mexico put in place over the last thirty years is
experiencing a serious challenge – this time from within the government. The July
2, 2018 elections may in the end reflect a public policy fatigue, including a deep
dissatisfaction with the results of the politics and policy direction of the country for
the last three decades and a desire for change. Others concern sudden changes in the
international environment, including the significant political shift in the United
States under President Donald Trump, who has criticized free trade and views
Mexico as an adversary rather than an ally. Together, these shifts constitute a
fundamental change in the public policy environment that supported all structural
reforms in the country, including those advanced by the Peña Nieto administration.
Under this theoretical lens, this essay examines the domestic and international
causes of policy environment change in Mexico, focusing on its implications for the
implementation and consolidation of the country’s historic energy reform.
14.2 Theoretical Musings
Students of public policy have recently re-examined the relationship between

politics and public policy, suggesting that the structure of public policy produces its
own politics, much as politics produces its own kind of public policy. The argument
is that public policy generates its own incentives and resources and provides actors
with information and cues that encourage their political views and convictions, but
they also influence other actors – including political opposition groups, interest
groups, and the masses – to articulate their own alternatives more accurately and
push back, sometimes threatening public policies that appeared to have enjoyed a
broad political consensus (Pierson 1993: 595–628). Recent developments in
Mexico suggest that the policies of the last three decades have indeed produced
significant political consequences – and resistance – all of which now threaten the
sustainability of the public policies of democratization and liberalization that the
country has pursued over the last three decades. It can certainly be argued that the
mixed results of the policies themselves produced over time their own kind of
politics, ultimately resulting in a considerable shrinkage of the political coalition
that had in turn produced the public policy consensus outlined above. The ability of
the PAN-PRI coalition may have also ignored significant unintended consequences
of their public policies, resulting in a more articulate political alternative in
MORENA. Political hubris cannot be discarded either as a possible contributor to

the desire for change, particularly as specific economic and rule of law issues
appeared to have worsened rather than gotten better over time. If so, this would
confirm that the public policies of recent decades produced a slow-brewing political
storm that now threatens the very reforms that recent governments have pursued –
including energy reform.
The electoral results of 2018 appear to confirm just this policy and politics
feedback loop. To be sure, public policy stability and change cannot be easily
predicted (Wilson 2013: 391–402). Public policies, even those which have endured
for decades, can be overturned or reversed altogether, or undergo substantial
changes at any moment or be transformed over time, depending on many different
factors (Capano/Howlett 2009). Domestically, coalitions behind the direction of a
particular public policy can change and gain or lose power and influence or their
credibility can erode. Public opinion may swing quickly, based on specific events or
outcomes, or gradually if the policies put in place cannot deliver the results pro-
mised or expected. New actors with a different ideological bent or different interests
and preferences can arrive on the scene. Market, social and technological conditions
can shift, opening windows of opportunity for a different set of policies. Policy
fatigue can envelop a specific field of action. Policies may also depend excessively
on the agenda of one or a few individuals, without building the right institutions to
sustain them in the long term. Similarly, the international context may change,
making a specific policy irrelevant, unpopular or otherwise untenable, due to an
erosion of international legitimacy for a country’s leadership.
14.3 The Objective of This Chapter
To show how public policy and politics produce feedback loop dynamics that end
up changing the policy environment and threatening the implementation and con-
solidation of a policy path, this chapter uses as a case study the 2013–2016 historic
structural reform of the energy sector. It explores the central factors that developed
over time and gained momentum and now constitute a reaction to the public policy
projects of the PRI and PAN administrations of the years 1988–2018. It focuses on
the results, intended and unintended, of the public policy path the country had
pursued for thirty years and how they contributed to articulating the opposition,
which eventually coalesced within MORENA. To explore these feedback loop
dynamics and the resulting shift in the policy environment, we focus on energy
reform precisely because it came to be identified as the last (and major) step in what
had been a steady pursuit of economic liberalization – or, as MORENA put it, the
ultimate symbol of neoliberal politics that had to be reversed. Indeed, the new
policy environment sums up the failures of previous administrations – and quite
possibly their political and policy hubris – and today constitutes the most significant
danger to the consolidation of energy reform in Mexico – a reform that, regardless
246 T. Payan
of its nature, the country sorely needs if it is to meet its future energy needs. To
organize these factors in a coherent way, the paper classifies them into two cate-
gories: domestic and international.
14.4 Case Study: Energy Reform
Starting in 2008, the Mexican government realized that oil production was
declining relatively fast even as Mexico’s energy consumption was increasing
(Fig. 14.3). At that time, the Calderón administration sought to reform the energy
sector by introducing an important although less ambitious reform.3 The 2008
energy bill recognized that the energy sector required institutional modernization
and added investment to reserve its decline. It also sought to modernize PEMEX,
the parastatal oil company. That reform, however gradual, was not successful. The
decline in oil production continued.
In 2013, President Enrique Peña Nieto, convinced that his election signaled
approval of the public policy path Mexico had been on since the 1990s, committed
to pushing for structural reform in the energy sector very early in his administration.
In fact, the structural reform to the energy sector was to be a crowning achievement
of his administration and further Mexico’s economic opening. There was enormous
enthusiasm for the opening of the energy sector around the world, and President
Peña was viewed as a talented leader by the international press.4 To prepare the
groundwork for the reform, President Peña signed the Pact for Mexico during his
first month in office. He spent most of 2013 pushing a series of reforms through
Congress and agreed to send an energy reform legislative proposal to Congress as
soon as possible. By August 2013, he had sent the proposed constitutional changes
required to open the energy sector to private investment, securing congressional
passage of all changes in December that year, and signing the law amid great
optimism in the country and the national and international markets. This was no
mean feat. The Constitution was changed substantially, reversing the 1940 and the
1960 changes to the Constitution which impeded the opening-up of the energy
sector. Articles 25, 27 and 28 of the Mexican Constitution underwent substantial
changes (Cossío Díaz/Cossío Barragán 2017). The reform abrogated that part of
Article 27 of the constitution which prohibited private and foreign investment in oil
exploration and production. Similarly, the reform abrogated that portion of Article
28 that designated the petrochemical industry a strategic sector for the country,
allowing full participation from private capital into it. Parastatal companies were
3
Centro de Estudios Sociales y de Opinión Pública (2008). “Iniciativa de Reforma en Materia
Energética” (April).
4
“Make or Break for Peña Nieto: Mexico’s President Should Push for a Bolder Energy Reform.”
2013. The Economist (23 November). See at: https://www.economist.com/leaders/2013/11/23/
make-or-break-for-pena-nieto (8 January 2019). Time magazine showed Mr. Peña Nieto on its 13
February 2014 cover with the headline reading Saving Mexico.
Fig. 14.3 Mexico’s oil production decline and consumption from 1990 to 2017. Source BP
Statistical Review of World Energy 2019, 68th edition; at: https://www.bp.com/content/dam/bp/
business-sites/en/global/corporate/pdfs/energy-economics/statistical-review/bp-stats-review-2019-
oil.pdf. Includes crude oil, shale oil, oil sands and NGLs (natural gas liquids – the liquid content of
natural gas where this is recovered separately). Excludes liquid fuels from other sources such as
biomass and derivatives of coal and natural gas. **Inland demand plus international aviation and
marine bunkers and refinery fuel and loss. Consumption of bio-gasoline (such as ethanol), bio-
diesel and derivatives of coal and natural gas are also included
redefined as “state productive companies,” as opposed to government-owned and

operated companies. The reform expelled the Mexican national oil company
(PEMEX) workers’ union from the governing board of the company, and beefed up
a slew of agencies to regulate the auctioning, concession, exploration, and sale of
oil and gas. It created the Mexican Petroleum Fund, an organization designed to
capture some of the industry’s profits for a national sovereign fund. And it now
regulates the production of renewable energies (Government of Mexico 2013). The
secondary legislation was approved by the Mexican Congress in 2015 and 2016.
Almost simultaneously, the government invested heavily in crafting all the regu-
latory apparatus and creating and reforming the agencies that would oversee the
implementation of the historic changes to the energy sector. The reform, as public
policy change goes, was exemplary in its speed, transparency, and efficiency. By
early 2015, the Mexican government began auctioning the first oil blocks in the
Gulf of Mexico (Government of Mexico 2018). While the Mexican public
expressed few concerns regarding the key structural changes to the energy sector, it
was soon clear that the public remained divided on the reform (Fig. 14.4). And
248 T. Payan
Fig. 14.4 Parametría poll conducted between 16 and 20 January 2016. Source Parametría. See:
http://www.parametria.com.mx/carta_parametrica.php?cp=4840
although the reform had many vocal critics, and support for it eroded over time, the
absence of public activism against it emboldened the Peña administration to push
ahead to consolidate it, primarily through rushing the first block auctions in the Gulf
of Mexico.
By the end of 2018, Mexico had conducted three auction rounds, and signed 107
contracts with foreign and domestic companies, including deep water, shallow
water, and natural gas blocks and farm outs. In general, the perception of the
international markets has been that the Mexican government has been fair and
transparent in the implementation of the reform.
However, given this initial success, why is it that energy reform is now one of
the most endangered structural changes to Mexico’s economy? What deteriorated
the policy environment to the point at which then-candidate and later President
Andrés Manuel López Obrador was able to use the energy reform to his political
advantage? What gave pause to the Mexican public so that between December 2013
and January 2016 the negative perception of the energy reform went from 45 to
56% and within a year – from January 2015 to January 2016 – its approval fell from
47 to 30%? The answers to these questions are important because they may
determine the fate of Mexico’s energy sector through a mere stoppage of all auc-
tions and private participation in the sector or even a reversal of the reform. The
next sections tackle both the domestic and the international challenges to the
success of the reform, arguing that Mexico’s own energy sector is now
compromised.
14.5 Domestic and International Factors of Change

in the Public Policy Environment in Mexico
Again, public policy environments do not change overnight. Many different issues
emerge and mature over time to sow doubts on the benefits of specific policies, in
this case energy reform. The 2018 election results can only be seen as a reflection of
the deep concerns with the public policy path the country had been on. Clearly,
Mexicans chose a new government that deliberately stated that it would take the
country in a different direction, presumably the Left, away from the reforms that
both the PAN and the PRI had pushed for. The 53.2% of the vote that Mr. López
Obrador got carries with it an implicit mandate for public policy change, including
energy. After all, Mr. Andrés Manuel López Obrador of the National Regeneration
Movement Party (MORENA) obtained a majority of the national vote, even if
22.3% voted for PAN and 16.4% for PRI (Fig. 14.2). This is not to argue that it will
be easy. The new government (2018–2024), headed by Mr. Andrés Manuel López
Obrador, for example, will have to find a balance between the country’s future
energy needs, which require a modernized and diversified system of energy sup-
plies, and the political-electoral mandate, which appears to dictate a narrower and
more nationalistic approach to energy. He will also have to decide whether the
energy reform stands as it is and implements it without changes; whether he makes
substantial changes to it but moves ahead with modernization and diversification; or
whether he reverses it altogether. It is possible to read all those options into the
mandate that emerged from the July 1, 2018, elections. Whatever he decides to do,
however, will have important consequences for Mexico’s future economic devel-
opment.5 The domestic reasons for this political shift in the electoral preferences of
the Mexican public are broken down further below.
The second category of factors threatening the consolidation of energy reform
concerns Mexico’s economic development model and its excessive dependence on
the country’s insertion in North America for much of its political legitimacy.
NAFTA was, in fact, meant to tie Mexico’s fate to its North American neighbors –
dependence by choice, so to speak. The 2016 US presidential elections, however,
threw that into question and, with the presidency of Donald Trump, Mexico is no
longer seen as an indispensable partner and strong ally of the United States. With
Donald J. Trump’s anti-Mexico rhetoric, the Mexican government has lost an
important source of political legitimacy, which ultimately gave the Mexican gov-
ernment a great degree of support for its policy choices. International policy
legitimacy, in the end, does translate into domestic policy legitimacy, particularly in
countries with higher levels of dependence, like Mexico on the United States.
5
There is a demonstrable link between economic growth and energy. This is certainly the case in
Mexico. It is sufficient to examine the link between Mexican power production and manufacturing
and the Texas natural gas that fuels it. See Travis Bradford (2017) Adrian Duhalt (2018).
250 T. Payan
14.6 Winds of Change: Domestic Challenges to Energy

Reform
This section explores the key domestic challenges to the success of energy reform
in Mexico – all of which have contributed to the erosion of the policy consensus of
the last thirty years. One of these is related to the policy cycle and the factors that
accelerated the decline in support for neoliberal policies in the country, especially
over the last twelve years. It concerns the persistent inequality and poverty in a
country that granted its leadership maximum leeway to implement policies directed
at globalizing the country’s economy. After that, the essay explores the end of
support for the Peña administration’s ambitious reforms, primarily due to percep-
tions of corruption, impunity, and the government’s inability to hold itself
accountable to the law. Thirdly, the essay examines issues related to organized
crime, as the activities of criminal groups appear to be a serious concern not only
for the government’s company, PEMEX, but also for private and foreign investors.
Organized crime has become a major issue in the implementation of energy reform
and has laid bare the government’s inability to prevent, detect and effectively
punish crimes which target the energy industry. It has also exhibited the weakness
of the police forces charged with this key problem. Finally, the essay explores the
fundamental lack of democracy through public participation in the process by
which energy projects are approved and deployed, particularly when they affect
indigenous and farming communities throughout the country. All these issues are
directly related to economic governance and the weakness of the rule of law in the
country.
14.6.1 The End of the Policy Consensus and Persistent

Poverty and Inequality in Mexico
The work of the Mexican government in reforming the energy sector was hailed as
historic in its scope and momentous in its significance. In effect, for the first time in
seven decades, Mexico would allow private and foreign capital to participate in the
energy sector without having to do so through the national oil company, PEMEX.
Expectations rose high and the agencies implementing the reform were relatively
speedy, efficacious, and transparent in their work. The Mexican government
strengthened the regulatory powers of two agencies – the Energy Regulatory
Commission (CRE) and the National Hydrocarbons Commission (CNH) – and
created other regulatory agencies, including the Agency for Industrial Safety,
Energy and the Environment (ASEA), the National Center for Energy Control
(CENACE), the National Center for Natural Gas Control (CENAGAS), and the
Mexican Petroleum Fund (FMP), and produced new norms for the energy markets
in record time. Consequently, domestic and foreign companies became increasingly
interested in the country’s energy sector. By the time the first bid round to auction
oil and gas blocks took place in July 2015, several companies had decided to
participate and a few of them were able to purchase the rights for exploration and
production of several of these blocks in the Gulf of Mexico. Successively, other bid
rounds took place and 107 exploration and production contracts had been signed as
of the first half of 2018 (National Hydrocarbons Commission 2018). The reviews
on the overall performance of the Mexican government in the sector were highly
positive (International Energy Agency 2016).
Despite the Mexican government’s major accomplishments in implementing
substantial changes in the energy sector constitutional, legislative, and regulatory
frameworks, many Mexicans remained skeptical. Substantial numbers of citizens
disagreed with the change and their skepticism grew over time. Parametría’s poll
shows that by early 2016, Mexicans were becoming increasingly doubtful of the
benefits of the energy reform (Fig. 14.4). But it would be unfairly simplistic to
attribute this skepticism to a mere shift in public opinion on the contents of the
energy reform itself.
Deeper undercurrents were already in place, threatening the implementation and
consolidation of the reform. Doubts around Mexico’s economic development
model were already growing. According to a Pew Research Center poll conducted
in mid-2017, 85% of Mexicans were dissatisfied with the way things were going in
the country and 70% had a negative view of the economy (Vice/Chwe 2017). And
they had reasons to do so. According to the National Council on the Evaluation of
Social Development Policy (CONEVAL), poverty levels in Mexico remained
steady from 2008 to 2016. The council’s most recent study shows that the popu-
lation living in poverty remains at about 45% and, in sheer numbers, it actually rose
from 49.5 million to 53.4 million Mexicans (CONEVAL 2016).
Likewise, on inequality and income, Mexico ranks at the bottom of the member
nations of the Organization for Economic Cooperation and Development (OECD
2015). The persistence of poverty and inequality has not gone unnoticed by its
citizens. According to a 2017 poll conducted by Consulta Mitofsky, economic
issues, security, and corruption have ranked consistently among the top three
concerns of all Mexicans since at least 2013, with poverty and unemployment being
two important concern subsets (Consulta Mitofsky 2017). And, as already stated,
economic growth remained at a mediocre 2.1% per year – hardly a stellar perfor-
mance and well below the country’s needs.
Mexico economic underperformance has been amply debated,6 but the reality
remains the same. Thus, as many Mexicans were evidently failing to see the pro-
mised benefits of previous reforms, for which they had shown patient support, they
were becoming increasingly unconvinced that the overall economic system was
working for ordinary citizens. That skepticism was naturally transferred to the new
slew of reforms. Along these lines, Mr. Peña made a strategic public relations
mistake in searching for public support for the reform. He promised that the reform
would bring the price of energy (especially fuels and electricity) down for the
6
See, for example, Kehoe (2010) and Hanson (2012).
252 T. Payan
consumer. The opposite was true. The price rose, adding to the outrage and doubts
about the benefits of the reform (Okeowo 2017). This would only add to the doubts
that many Mexicans had regarding the eventual benefits of the reform, regardless of
its virtues.
14.6.2 The End of the Policy Consensus and Corruption

in Mexico
In addition to their overall dim view of the country’s economic outlook, Mexicans’
skepticism and eventual public opinion shift on the energy reform was underpinned
by frustration with the country’s progress on key rule of law issues. Corruption,
lack of transparency, and impunity are some such concerns. The first of these is
particularly worrisome. Most Mexicans, though they may not have the numbers at
hand, are fully aware that the country’s position on corruption and transparency is
slipping away.
According to Transparency International, Mexico dropped in its Corruption
Perceptions Index to 135th place out of the 180 countries measured, and its score
was 29 out of 100 (Transparency International 2017). Moreover, according to the
World Justice Project, Mexico ranks among the bottom third of all countries
studied, with a score of 0.45 in the overall index, which measures government
powers, absence of corruption, open government, fundamental rights, order and
security, regulatory enforcement, civil justice and criminal justice (World Justice
Project 2017–2018). Consequently, it should not be a surprise that this skepticism
was quickly transferred to Mr. Peña’s approval ratings. According to a poll by
Consulta Mitofsky published in August 2018, 77% of Mexicans disapproved of Mr.
Peña’s government and only 18% approved of it. Those numbers had been steady
for several years before this latest poll (Consulta Mitofsky 2018). And it cannot
come as a surprise that this deep skepticism was also transferred to the energy
reform that Mr. Peña had espoused in 2013 and 2014. If it is true that indicators on
poverty, inequality, corruption, and lack of transparency are directly related to shifts
in the policy environment, it should hardly come as a surprise that Mexico’s
elections appear to indicate that there is a strong desire for change, as reflected by
the vote for MORENA in Fig. 14.2.7
Interestingly, the policy environment in Mexico did not change quickly. In fact,
Mexico may be a good case of slow but steady growth of pessimism regarding
broad changes in public policy, reaching a sufficiently critical level to push a solid
majority of Mexican citizens to vote for a political party that proposed the reversal
7
In a poll conducted in May 2018 Consulta Mitofsky also asked: “Do you believe that the next
president of the republic must carry out a complete change, some change, or no change?” Around
58% of Mexicans answered that the next president must carry out a complete change and 26%
expressed their desire for some change. Only a little over 6% believed that the country should stay
the course. See Consulta Mitofsky (2018).
of several key policies, including energy reform. It is difficult to discern whether

such changes are indeed possible or, if they are possible, where they are desirable. It
is also difficult to know how much change can really happen under the significant
economic constraints that Mr. López Obrador faces on taking office. It will certainly
be very hard for Mr. López Obrador to reverse the energy reform without damaging
the sector and the country’s credibility among international investors, but what is
certain is that the status quo is unlikely to prevail.
The issue of corruption is so salient in the minds of Mexicans that a key question
that remains to be explored is the failure of the previous administrations (Salinas,
Zedillo, Fox, Calderón, and Peña) to cement Mexico’s economic development
model and the policies that underpinned it by ensuring not only that more Mexicans
enjoyed the benefits of the country’s economic opening but also that they put in
place the right institutions to prevent the country’s slip on corruption. This is
important because for three decades – judging by the electoral results – Mexican
citizens were willing to give the policies derived from a neoliberal model a chance
to produce results but by July 1, 2018, most Mexicans (53%) had concluded that the
government and by extension the economic structural reforms of the last thirty
years were simply not working. They had also concluded that corruption was only
getting worse – a frustration supported by Mexico’s rankings on corruption
worldwide (Transparency International 2018). Mr. López Obrador was able to
capture these concerns during his campaign. Even so, it is noteworthy that this
conclusion was ultimately translated into votes through the very same political
structural reforms of the last thirty years and in a largely peaceful process. But
whichever the way the message may have been conveyed politically, it became
clear that, even if the Mexican government’s political opening rendered important
accomplishments, over time its economic opening was insufficient to create higher
endogenous growth, a bigger middle class, and the kind of human development that
can aid in the development of institutions capable of resolving most of the country’s
problems, and that Mexicans had reached a critical tolerance limit with regard to
corruption.
Unsurprisingly, policy fatigue began to accelerate, and most Mexicans viewed
the State as increasingly weak and unable to respond to social demands. In other
words, if we assume that the impact of negative public opinion on the ability of the
government to consolidate its policy preferences increases as issues related to the
rule of law and poverty and inequality become more salient (Burstein 2003: 21–40),
the 2018 election results should not surprise anyone. Moreover, the ineffectiveness
of the Mexican government to respond to public demands was made more evident
by the rise in crime and crime and violence – more on this below. By the elections
of 2018, Mexicans were ready for a change and well over half voted to reintroduce
the State more aggressively into solving the country’s economic and social prob-
lems. What the Mexican government failed to understand is that when the public is
willing to grant the government the ability to set the policy agenda, and thirty years
later the results are less than acceptable, office-holders cannot ask for additional
opportunities to make sweeping changes, such as occurred with energy reform.
254 T. Payan
To summarize, so far this essay has explored two of the major threats to the
consolidation of energy reform – economic underperformance and corruption. Both
have contributed significantly to the erosion of the public policy consensus that had
prevailed in Mexico for the last three decades. One is a phenomenon related to the
inability of the economic model – of which energy reform was an important chapter
– to deliver what it promised: prosperity for most Mexicans. By the end of the Peña
administration, most of the public began to regard energy reform with great
skepticism and viewed it as another way of transferring public wealth into the hands
of a national (and international) elite – a story they had already witnessed in the
privatization of the telecommunications sector in the late 1980s and 1990s (Clifton
2000: 63–79).
MORENA and Mr. López Obrador successfully made that one of their most
important political arguments during the 2018 presidential campaign. The other
concerns the dramatic drop in public approval of the Mexican government, broadly
speaking, and of the Peña administration, specifically. This loss of political capital
was largely due to the failure to institutionalize the rule of law with measures
against corruption, lack of transparency, and government unaccountability. Mr.
Peña, for example, refused to prosecute scores of corrupt governors from his own
party or members of his own cabinet involved in corruption. To be sure, this was
not a new problem. During an August 15, 2018, conference delivered in El Paso,
Texas, former President Ernesto Zedillo acknowledged that his most profound error
was his failure to procure a strengthening of the rule of law in the country. When
President Felipe Calderón determined to tackle organized crime frontally while
building the administration of justice institutions, the result was a spike in violence,
including kidnappings, extortions, and murder, which tested the patience of most
Mexicans (Fig. 14.5). During the Peña administration, the failure to combat cor-
ruption was further heightened by Mr. Peña’s own scandals.
14.6.3 The End of the Policy Consensus: Organized Crime
The concept of rule of law is a complicated concept because it encompasses

multiple issues: public safety and security, relative absence of corruption, low levels
of impunity, transparency and accountability of all governmental activity, respect
for human and due process rights, and especially strong governance institutions and
a robust culture of lawfulness. In general, it is the principle that all people and
organizations, including the government itself, are subject to the law and its
enforcement (Bingham 2007: 67–85). In Mexico’s case, as in much of Latin
America, every single one of these indicators of the rule of law is worrisome to a
greater or lesser degree. And although weaknesses in the rule of law in Mexico have
been part of the history of the country for centuries, recently, most indicators have
moved in the wrong direction.
As already discussed above, on corruption and transparency, the country’s
rankings have rapidly deteriorated. Levels of impunity have also risen considerably.
Fig. 14.5 Homicides, Extortion and Kidnappings in Mexico (1997–2018). Source National
Security System. The 2018 numbers show crime statistics through July only. The projected annual
victims at the current pace were estimated to reach 32,000 before the end of the year
The Global Impunity Index published by the Universidad de las Americas Puebla
shows, for example, that Mexico suffers from serious structural and functional
deficiencies in its ability to prevent, to detect and to punish criminal activities (Le
Clercq/Rodríguez 2017). On respect for human and due process rights, Mexico’s
ranking is abysmal. Article 19, an international organization that monitors freedom
of expression and the safety of journalists, considers Mexico one of the worst
countries to practice journalism, for example.8 Equally – or perhaps more – wor-
rying are the high and increasing levels of crime and violence that Mexico has
experienced over the last twelve years.
The public safety and security landscape has, in fact, worsened considerably
during those years and has reached levels not seen in decades. Measured by the
murder rate, kidnapping, and extortion, the country has experienced an extensive
decline in its ability to protect not only its own citizens but also national and foreign
investment and to guarantee the safety of all involved (Fig. 14.5). In fact, most polls
show lack of public safety and security as one of the top two and three concerns of
all Mexican citizens, often right next to poverty and corruption and poverty and
inequality.
In addition to the descriptive statistics, it is important to note a qualitative shift in
the trends in crime and violence. During the last two decades of the twentieth
century and the first years of the twenty-first century, most of the crime and vio-
lence in Mexico was heavily concentrated in areas where organized criminal groups
8
Article 19. “Mexico and Central America.” See: https://www.article19.org/regional-office/
mexico-and-central-america/ (8 September 2018).
256 T. Payan
were quartered and competed with one another for territorial control – Ciudad
Juárez and Tijuana or the states of Tamaulipas and Michoacán. The activities of
these criminal organizations focused on illegal drug smuggling to the United States
and increasingly on the domestic illegal drug retail market.
Under this assumption, President Felipe Calderón (2006–2012) began a major
assault on organized crime (Calderón Hinojosa 2015). President Calderón argued
that organized crime was becoming a shadow government in many regions of the
country, capable of challenging the very survivability of the Mexican State. By
2010, and largely as a result of the government’s major assault on criminal groups,
the drug cartels and their allies had started to break up into dozens of criminal
groups, expanded to other areas of the country, and diversified their criminal en-
terprises (Heinle et al. 2017). Extortion, kidnapping, robberies, theft, etc., rose to
unprecedented levels.
The levels of criminal activity and violence that the country has been experi-
encing soon reached deep into the energy sector, particularly in certain parts of the
country where organized crime has a strong grip on government and society (Payan/
Correa Cabrera 2014). By the end of the Peña administration, organized criminal
groups had made the theft of fuels one of their major activities. They showed their
ability and willingness to make energy projects and infrastructure the target of their
activities, largely aided by the government’s inability to stop them (Payan/Correa
Cabrera 2016). In response to that, new vocabulary entered the scene. Criminal
groups dedicated to targeting crude oil, fuel and gas pipelines came to be known as
huachicoleros, and they were particularly pernicious to PEMEX (Calderón 2017).
In an interview with a PEMEX employee in the area of logistics, the financial loss
was reaching into the billions of dollars. In mid-2016, Etellekt, a consulting firm,
had already warned that fuel theft was becoming a major concern for corporations
seeking to invest in Mexico (Etellekt 2016).9 The author’s conversations with
several energy company executives, particularly Chief Security Officers, in
Houston, Texas further confirmed that this had become a major concern. Criminal
activities targeting energy infrastructure now extend to nearly the entirety of the
national territory, although they are heavily concentrated in those areas where
PEMEX’s pipelines criss-cross the country (Table 14.1). Interestingly, the hua-
chicol crisis is the first serious rule of law crisis that President Andrés Manuel
López Obrador is confronting. To stop the hemorrhage of fuel, he chose to dry out
the pipelines that supply gasoline to most of Central Mexico. An unintended
consequence is that PEMEX logistics were simply unable to supply gasoline by
truck to the entire region, so fuel shortages ensued. This clearly reinforces the view
that public policies – their pursuit or their neglect – often come with consequences
which cannot be foreseen but which can easily test the patience of the public.
The government, at all levels, has been unable to curtail their activities and the
losses to PEMEX now reach billions of dollars. These criminal groups are also
adding to their attacks on energy infrastructure a willingness to extort resources
9
Etellekt (2016).
Table 14.1 Clandestine Pipeline Taps in Mexico
Mexican State 2017 2018 January-June

Guanajuato 1,852 865
Puebla 1,443 1,175
Tamaulipas 1,100 626
Hidalgo 1,064 909
Veracruz 1,012 844
Mexico 976 731
Jalisco 530 758
Sinaloa 384 345
Morelos 378 208
Querétaro 304 161
Nuevo León 236 142
Michoacán 232 136
Tabasco 167 74
Baja California 154 59
Tlaxcala 122 210
Sonora 97 93
Mexico City CDMX 91 78
Chihuahua 85 77
Oaxaca 69 62
Coahuila 43 18
Durango 9 12
San Luis Potosí 6 1
Chiapas 5 3
Aguascalientes 3 1
Yucatán 1 2
Baja California Sur 0 0
Campeche 0 0
Colima 0 0
Guerrero 0 0
Nayarit 0 0
Quintana Roo 0 0
Zacatecas 0 0
Total 10363 7,590
Source PEMEX; see: https://www.pemex.com/acerca/informes_publicaciones/Paginas/tomas-

clandestinas2017.aspx and http://wwwpemex.com/acerca/informes_publicaciones/Paginas/tomas-
clandestinas.aspx
States marked in red and orange show that the activity of organized criminal groups targeting
energy projects and infrastructure has reached nearly the entire country. States like Guanajuato,
Puebla, Tamaulipas, Hidalgo, Mexico State, Jalisco and Veracruz, where oil and gas pipelines are
an important part of the infrastructure, have been particularly targeted
from businesses and to kidnap personnel for ransom. This has been a major concern
for investors who have observed the trends carefully as they prepare to deploy
projects on land. A recent conversation with a major transnational investing in
Mexico revealed that they are having to go to extreme measures to protect their
businesses and their personnel, including the use of armed guards and additional
258 T. Payan
kidnapping insurance. And although most transnational corporations are accus-

tomed to operating in difficult security environments, most of them are having
trouble figuring out the right safety and security measures for an environment where
there is apparent rule of law but in practice there are enormous deficiencies. At the
same time, when the government has moved public forces against them, the result
has been direct confrontation and considerable bloodshed. Many foreign investors
now fear that general organized crime will be one of their major obstacles to doing
business in Mexico and, in private conversations with several of these companies, it
has become clear that their business models and in-country activities heavily
consider problems with public safety and security as an integral variable.
In general, elevated crime and violence in the country and the government’s
increasing neglect of its responsibility to protect both its citizens and the economic
activity of nationals and foreigners from falling victim to them is one of the biggest
challenges to the reform. It will be difficult to understand how much investment will
be deterred from coming into the country due to crime and violence and how the
costs of safety and security will affect business models when investing in Mexico,
but these costs are not zero and companies will have to consider this to the detri-
ment of Mexico’s own image and its ability to attract the kind of investment the
country requires for its own economic development and the acceleration of the pace
of economic growth.
So far, this essay has argued that there has been a major shift in the policy
environment in Mexico. And this shift will have a negative impact on energy
reform. The root cause of this change is persistent economic underperformance,
with high levels of poverty and inequality; corruption and impunity; and rising
levels of crime and violence. In the end, the Mexican government has focused much
of its capital on securing the structural reforms of the last thirty years, but has
neglected to ensure that wealth and income are more evenly and sustainably dis-
tributed and that the rule of law is strengthened. This has now put all the accom-
plishments of the last decades at risk, made the country vulnerable to international
criticism and made Mexico a major political football in the United States, the very
country on which the economic development model the country has implemented
depends. The next section explores the added risk to Mexico’s path stemming from
a change in the global political landscape, particularly in the United States.
14.7 Change in the International Environment
The major obstacles to the consolidation of energy reform in Mexico are not just
domestic in nature. The international environment is also changing radically. In
general, it has always been difficult to understand Mexico’s economic and political
transformations without linking them closely to the country’s foreign policy, par-
ticularly its relations with the United States. The tacit support – and sometimes
outright intervention – of the United States government has historically mattered for
the direction the country has taken. This certainly was the case in the 1980s, when
Mexico stumbled into financial crisis after financial crisis, and most of the condi-
tions for economic and political liberalization came from the United States and
international organizations in exchange for financial rescue packages (Fourcade‐
Gourinchas/Babb 2002: 533–579). This was also true in 1994, during the “Tequila
Crisis” (Springer/Molina 1995: 57–81). The major push for energy reform was not
much different. While serving as Secretary of State, Hillary Clinton appears to have
been advising the Mexican government on how to proceed on liberalizing its energy
sector, according to documents released by WikiLeaks.10
Thus, for decades, the state of the binational relationship has turned out to be an
indispensable factor in deploying and consolidating Mexico’s development path. Its
insertion in North America has further reinforced this trend. Some thinkers have
even argued that the North American Free Trade Agreement is quintessentially a
political agreement, even more so than a commercial agreement, because it com-
mits Mexico to a development path and precludes policies that might not serve the
strategy established in the 1980s (Rubio 2018). Thus, the United States provides
and has provided enormous legitimacy to the policy decision of the Mexican
government for at least three decades.
But the political environment in the United States is now changing dramatically.
During the 2016 presidential campaign, Mr. Donald J. Trump made Mexico a major
object of his acerbic political rhetoric. Mexico, he argued, had taken advantage of
the United States and that had to end. He promised to upend the North American
Free Trade Agreement, a near-quarter century commercial accord between all three
North American countries. Moreover, he promised to expel millions of unautho-
rized Mexican migrants and build a wall between the two countries. He did away
with the rhetoric of a “competitive North American platform”, and rejected any
kind of strategic partnership with Mexico. His positions have only hardened since
he took office in early 2017, and his rhetoric has continuously shown a degree of
hostility that Mexico had not experienced in decades.
NAFTA renegotiations, called for by the Trump administration in August of
2017, have also resulted in something that promises to be an agreement more
disadvantageous to Mexico, and likely contentious in the new
MORENA-dominated legislature. Given Mexico’s economic dependence on US
foreign investment and the importance of the support of the United States gov-
ernment for the Mexican government’s broad decisions on the country’s direction,
Mr. Trump has essentially pulled the political rug from under Mexico’s feet and
made the energy reform more vulnerable to reversal, particularly as one of
MORENA’s key promises was to reconsider that structural change to the country’s
energy sector.
Given this significant change in the political environment in the United States,
the assumption that the Mexican government could always receive support from
abroad to make structural changes, sometimes against domestic public opinion, can
10
See WikiLeaks at: https://search.wikileaks.org/plusd/ (8 September 2018).
260 T. Payan
no longer be sustained. This shift makes it easier for the MORENA party and the
administration of Mr. López Obrador to tinker with the basic structure of the reform
as well as slow down or stop its implementation – at a minimum – or reverse it
altogether, especially considering the fact that the new Mexican president will have
a majority in both houses of Congress and control of seventeen state legislatures,
just enough to change the Constitution all over again. This political threat to energy
reform cannot be underestimated because, even if the basic constitutional and legal
framework were to remain in place, the implementation of the reform could take a
completely different path. Unfortunately, it is likely that Mexico will simply not
have the capital to reverse the dramatic declines in its oil production or, more likely,
investing public resources in oil production is likely to be less productive than
allowing private capital to do it or find a hybrid system for public-private part-
nerships to manage oil production.
14.8 Conclusion
Table 14.2 summarizes the central factors that contributed to a shift in the public
policy environment in Mexico – factors which allowed a breakdown in the policy
consensus and opposition to the policies of the last thirty years to gel. This shift is
what now threatens the viability of energy reform.
Shifts in public policy environments are crucial to understanding the path of
social, economic, and political developments in any country. These shifts introduce
a number of variables in each of these ambits that add considerable uncertainty to
the ability of established policies to survive and thrive and create windows of
opportunity for new policies, although they may not necessarily be an improve-
ment. Latin America is plagued by examples of starts and reversals in public policy,
many of them for the worse. In Mexico, the growth in skepticism regarding the
Table 14.2 Major challenges to the successful implementation and consolidation of energy
reform in Mexico. While, broadly speaking, it is an erosion of the policy consensus in Mexico – a
major public policy environment shift – that now threatens the consolidation of energy reform, this
consensus broke down on the basis of specific issues that contributed to the gradual but eventually
clear shift. The table summarizes the most obvious domestic and international factors
Challenges to Mexico’s energy Domestic International
reform implementation and
consolidation
Factors contributing to the erosion Weaknesses of the Shifts in the political
of the public policy consensus in economic model: poverty environment in the
Mexico and inequality United States
Rule of law issues:
Corruption
Organized crime
Democratic participation
direction of the country, primarily with regard to economic and rule of law issues,
which resulted in the electoral results of 2018 in Mexico and the troubled rela-
tionship with the United States under the Trump administration, crystallize just such
a shift and bring a considerable degree of uncertainty to the future path of what is
possible in Mexico. By extension, this significant change in the policy environment
poses a major challenge to all of the country’s structural reforms, including energy
sector reform. In that sense, to simply speak of the Mexican public losing its
patience with political elites is insufficient to explain the new direction of the
country, which now puts energy reform on the chopping block. To understand what
has happened in Mexico, one must go further back in space and time and under-
stand that these essential weaknesses in the economic and rule of law models are
what eventually allowed opposition to the policy environment to grow into a
political movement which now controls both the Executive and both houses of
Congress and can easily reverse energy reform, as well as other structural reforms.
At a time when greater legal and regulatory certainty is a desirable public good,
the President, Mr. López Obrador, and his energy team have yet to set a clear and
achievable plan for the country’s future energy development. The López Obrador
team has, for example, made contradictory statements regarding its designs for
energy, and his advisors have even discounted each other’s public statements. Thus,
it is worth asking whether the election results, the product of a shift in the policy
environment, mandate a complete shift in the model of economic development or
simply a government that can ensure that the benefits of the open market can extend
to more Mexicans and reduce levels of poverty and inequality. With regard to
energy, it is not yet clear that the incoming team has reached a consensus on what it
plans to do.
Unfortunately, none of the issues behind the policy environment shift can be
corrected over the short term. It will require a long-term plan to fix all institutions
charged with combating corruption, reducing impunity, ensuring an expeditious and
efficient administration of justice, diminishing the levels of crime and violence, and
fighting poverty and violence – and, of course, a competent team to handle the
turbulent relationship with the United States for the next few years. In the mean-
time, a clear vision and a steady hand in implementing the country’s reform are
becoming critical. Currrent conditions are inciting analysts of Mexican society,
politics, and the economy to ask: What is at stake if the only added ingredient to the
shifting policy environment is greater uncertainty than the country was already
facing?
Over the last thirty years, in spite of its significant shortcomings, Mexico has
made enormous strides in its social, economic and political development. Its
electoral system could be considered among the best in the world (FairVote 2018);
its political system had been growing in its capacity to represent diverse voices,
including giving MORENA the possibility of a landslide in the 2018 elections; its
society has grown increasingly tolerant of diverse lifestyles; its economy has
become an export powerhouse; and so on. All these achievements are based on the
credibility that the country has amassed through trade agreements, monetary dis-
cipline, and fiscal restraint, in addition to other key virtues. That credibility is now
262 T. Payan
at risk, as the country engages in what appears to be a major course correction, with
a greater degree of uncertainty on the potential outcome.
The country will need to continue to build on these strengths, while attempting
to solve its core weaknesses. The alternative is to lose all international credibility,
followed by a flight of foreign investment required to achieve the stated goal of the
energy reform: to increase production of energy and to do so in a way that con-
tributes towards solving environmental issues and ultimately global warming. It
would be a disservice to the country to turn back energy reform at this point. The
country simply does not have the resources to accomplish its energy goals on its
own – even if it is understandable why Mexicans turned the PRI and the PAN out of
power.
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org/ (2 September 2018).
Chapter 15
The Rule of Law in Economic
Competition
María Solange Maqueo Ramírez
Abstract This chapter addresses the evolution process of the law of economic
competition in Mexico, with special emphasis on the so-called structural reforms of
2013 and the enactment of a new Federal Law of Economic Competition. The aims
of this writing are to highlight the aspects which have contributed to the consoli-
dation of the rule of law, as well as to identify some tasks to be attended to,
including not only potential legislative reforms, but also a proper implementation,
the coordination of public policies, and the creation of precedents that will provide
greater legal certainty.
! !
Keywords Market system Economic competition Competition law Antitrust ! !
! ! !
Economic constitution Structural reforms Rule of law Federal Competition
!
Commission Federal Telecommunications Institute
15.1 Introduction
The advent of the neoliberal economic model entailed a profound transformation in

the role of the State, which becomes subsidiary to the very capacities of the market
(Lindblom 2001: 156). The paradigm of this position lies in the idea that the market
is the ad hoc mechanism to coordinate economic activity and only its imperfections
warrant the visible hand of the State. From this standpoint, State intervention in the
economy is explained to the extent that: (i) it ensures the very subsistence of the
market; and (ii) it lays down the conditions for the interaction of economic agents to
allocate resources efficiently.
Accordingly, the rule of law becomes a precondition of the functioning of the
market: “[it] is an indispensable foundation for market economy, which provides an
essential environment for the creation and preservation of wealth, economic
María Solange Maqueo Ramírez, Associate Research Professor at the Legal Studies Division of
the Economic Research and Teaching Center (CIDE) and Chair of the Advisory Board of the
National Institute for Transparency, Access to Information and Personal Data Protection (INAI);

https://doi.org/10.1007/978-3-030-31314-2_15
266 M. S. Maqueo Ramírez
security, and well-being, and the improvement of the quality of life” (Bufford 2006:
303) and, in turn, feeds on economic efficiency1 as a goal to be fostered by legal
rules.
With regard to the rule of law as a precondition to the functioning of the market,
it is worth pointing out that the legal system lays the foundations for the conduct of
business transactions. This is clearly evidenced by the creation of property rights,
the guarantees for the promotion of contractual relationships, the duty of protection
and surveillance in order to provide individuals with legal certainty over their
property, as well as the impartiality and independence of court dispute settlement
mechanisms. Each of these aspects of the legal system constitute the fundamental
basis for the functioning of the market, to the extent that even the most radical
liberal positions which favor the deregulation of economic activity admit the need
to create minimum legal structures which enable its sustainability.
However, modern economic theory recognizes certain administrative, regulatory
and surveillance functions in the very government that go beyond the minimum
State. Under this scheme, its intervention is warranted so as to contribute to
improving the functioning of the market in the face of its imperfections, whether in
the case of market failures per se affecting economic efficiency, or to meet redis-
tribution goals under social justice criteria. That implies, inter alia, the capacity of
the State to mitigate, if not eradicate, imperfect competition, asymmetric informa-
tion and incomplete markets.
Against that backdrop, the law of economic competition aims to protect the
competition process through the free interplay of market forces, and, in the event of
market failures, fight pricing; ensure a multiplicity of buyers and sellers as price
takers, not price makers; forestall cases of abuse of a dominant position or market
concentrations harmful to the competition process; and, lastly, intervene when the
market experiences structural failures preventing the efficient allocation of
resources.
In view of the foregoing, the “rule of law” “as applied to the law of economic
competition” can be conceived as limiting State power in economic activity by
submitting it to a legal system including assessment principles or criteria that
purport to maximize economic welfare as a whole. It is not about denying State
intervention in the market, but about determining its who, how and why. For such
purposes, the rule of law comprises at least three main elements: (i) a constitutional
and legal framework that favors economic competition; (ii) an administrative and
institutional system, which defines the powers of regulatory bodies and their rela-
tionships with other relevant actors2 (whether also government bodies, economic
1
Generally speaking, economic efficiency as a goal of competition policy includes allocative
efficiency, productive efficiency, and dynamic efficiency. In that respect, see Motta (2004: 52ff).
2
In Sarsfield’s opinion (2010: 15), a condition necessary for the rule of law to exist is an insti-
tutional equilibrium which “permits to define the set of possible actions of actors. Actors’ be-
haviors are, then, predictable, understandable, and limited by law. In other words, there is an
institutional equilibrium when institutions can tame, transform or constrain the power of organized
group.”
15 The Rule of Law in Economic Competition 267
agents or consumers), and, lastly, (iii) a jurisdictional system that ensures effective
judicial protection (Bufford 2006: 306ff).
In turn, the rule of law thus conceived becomes interdisciplinary in nature,
economic competition becoming a natural meeting field between Law and
Economics where both disciplines feature reciprocal influence.3
This is exactly the paradigm on which the origin of the law of economic
competition in Mexico, the purposes of which were established from the outset by
the now abrogated Federal Law of Economic Competition of 1992, is based: “to
protect the competitive process and free market access by preventing monopolies,
monopolistic practices, and other restraints of the efficient functioning of markets
for goods and services”. Hence, the assessment criterion for market regulation in
order to promote free competition and maximized turnout to the marketplace lies
primarily in the search for efficiency and, thus, economic development. In the words
of Motta (2004: 30), the main goal of economic competition is ensuring “that
competition in the marketplace is not restricted in such a way as to reduce economic
welfare”, which is understood as the “total super plus, that is the sum of consumer
superplus and producer superplus” (2004: 18).
Nevertheless, from its beginnings to date, the law of economic competition in
Mexico has been transformed. As will be seen in the following sections, this
transformation has been progressive, albeit steady. From an origin which may be
labeled artificial,4 alien to Mexican idiosyncrasy and the economic context of the
country, it is currently a powerful instrument in favor of the rule of law. Not only do
economic competition and its regulation channel State influence on the market, as
in its original meaning, but they also limit the abuse of power by large companies
for the benefit of society at large, in which consumers perform an increasingly
pivotal role. Nonetheless, as will be seen below, there remain some tasks to be
performed that go beyond potential legislative reforms, so as to pave the way for the
proper implementation of the rules and regulations in force.
15.2 Competition Law in Mexico: 1992–2013
15.2.1 The Reception of Competition Law
The reception of competition law in Mexico is within the framework of the market
liberalization process introduced in the mid-1980s. This process entailed a profound
transformation of the adopted economic model. It implied a transition from a
protectionist economic model, characterized by considerable State intervention in
3
On the relationship between law and economics from an institutional perspective, see Medema
et al. (2000: 418ff).
4
The idea that the introduction of economic competition may have been artificial does not con-
stitute a unanimous position. In this regard, see Castañeda-Gallardo (2014: 337ff).
production processes and price control, to a market-based economy model (OECD

2004: 10).
However, the privatization process that Mexico was undergoing and the removal
of trade barriers were still insufficient. It was necessary to create a regulatory
framework ensuring free economic competition among market agents.
Consequently, the first Federal Law of Economic Competition (Spanish acronym:
LFCE)5 was enacted in Mexico in 1992. Nevertheless, as Elbittar/Mariscal (2018:
17) highlight, this law did not stem from awareness of monopoly-related problems,
the restraints arising from market power, or the practice of monopolistic behavior,
but as a condition to access other markets. In particular, the enactment of this law
was imperative for Mexico to become a party to the North American Free Trade
Agreement (NAFTA), together with the United States of America and Canada.
In fact, Chapter Fifteen of the NAFTA, entitled “Competition Policy,
Monopolies and State Enterprises”, includes commitments for the State’s Parties to
adopt and maintain “measures to proscribe anticompetitive conduct and take
appropriate action with respect thereto”. It also incorporates common definitions
about monopoly, non-discriminatory treatment and state enterprises, among other
definitions.
By means of the LFCE, Mexico introduced for the first time in its legal system
“provisions against cartels and abuses of dominant positions, and allow[ed] for
mergers review and competition advocacy” (Aydin 2016: 165). Moreover, this law
set out a catalog of anti-competitive behaviors in both the public and private sector,
which would be expanded across successive legislative reforms. From the outset,
this law drew a distinction between absolute monopolistic practices (concerning
“hard-core cartels”, “or agreements between competitors on price, output, market
division, and bid rigging”) (Aydin 2016: 165) and relative monopolistic practices
(which “are what would be treated under monopoly or abuse of dominance pro-
visions in other jurisdictions”) (Aydin 2016: 165). In turn, this differentiation
entailed adopting the US case law construction that draws a distinction between the
rule per se (for absolute monopolistic practices) and the rule of reason (for relative
monopolistic practices).
The creation of the Federal Competition Commission (Spanish acronym:
COFECE) was a decisive step in the configuration of economic competence policy
in Mexico. Pursuant to Article 23 of the now abrogated LFCE, the COFECE was a
decentralized administrative body of the Secretariat of Economy, with “technical
and operational autonomy”, the function of which was to “prevent, investigate and
contest monopolies, monopolistic practices and concentrations” in the terms of the
law.6 Basically, this autonomy relied on how commissioners (whose appointment
depended on the Federal Executive Branch, not the Ministry) were appointed and
5
Law published in the Diario Oficial de la Federación on 24 December 1992.
6
In terms of Article 16 of the Mexican Federal Law on Economic Competition, “a concentration
shall be understood as a merger, or acquisition of control, or any other act whereby companies,
partnerships, shares, equity, trusts or assets in general are concentrated among competitors, sup-
pliers, customers or any other economic agent.”
on the allowance for a specific period for the commitment. Nonetheless, the
COFECE had no budgetary independence, since the preparation of its budget
depended on the Ministry of Economy (OECD 2004: 64).
Since its inception, the COFECE was vested with regulatory, investigation and
sanctioning powers. However, much of the criticism during the first years of
operation was about its inability to restructure a monopolized industry and, in
general, the division of powers among different regulatory bodies, which under-
mined the scope of power granted to the COFECE in particularly complex areas
(Aydin 2016: 165). This was the case, for example, of the regulatory body in the
telecommunications area, under the responsibility of the now-defunct Federal
Commission for Telecommunications (COFETEL). In this regard, “the FCC was
responsible for identifying whether a firm had market power in a sector, but it was a
sector regulator that had the responsibility to address this behavior, without the
FCC’s participation in the negotiations or the preparation of regulations to deal with
the competitive conduct” (Aydin 2016: 168). Moreover, at the beginning, the
Commission had slight influence on the regulatory improvement process. The
relationship between the COFECE and the Regulatory Improvement Council
(OECD 2004), also under the authority of the Ministry of Economy, was weak,
although the regulation could have an impact on the economic competition process.
With regard to the COFECE’s investigation powers, the COFECE had no power
to conduct on-site searches (Aydin 2016: 168) . Furthermore, there was no system
distinction between the authority investigating the alleged breaches of law and the
authority determining such breaches and the relevant penalties (García 2003: 125).
This situation did not support a perception of fairness in the procedures conducted
by the COFECE.
In these early years, Mexico lacked a culture of economic competition, not only
because it had adopted it artificially in order to access other markets,7 but also
because, as stated by García (2003: 125), those directly affected by anticompetitive
behavior had no direct action before the Judiciary to claim damages. The fact that
market competitors themselves and consumers, where applicable, might not claim
damages caused by anticompetitive behavior led to the society in general distancing
itself from the then unknown COFECE.
In addition, the inadequacy of sanctions as a disincentive to engage in anti-
competitive practices, the lack of immunity programs to facilitate the identification
of cartels, and the continual legal or administrative decisions reversing the
Commission’s decisions (Aydin 2016: 168–170), reduced the effectiveness of its
roles.
7
For another perspective, see Castañeda-Gallardo (2014: 337ff).
15.2.2 Legislative Reforms of 2006
Although, in general terms, the international perception of the LFCE was positive,
there were still significant areas to improve, as evidenced by the 2004 OECD
Report on Competition Law and Policy in Mexico. Moreover, at national level, “[g]
overnment and private actors criticized the FCC for being weak, court proceedings
triggered by companies’ complaints slowed down investigations, and a number of
the FCC’s decisions were reversed by the district courts on procedural grounds”
(Aydin 2016: 155). In general terms, the COFECE was considered an adminis-
trative body whose investigation tools and sanctioning powers were insufficient to
deter anticompetitive practices (Gallardo/de la Mora 2014: 37).
In response to this situation, on June 28, 2006, an extensive reform of the
Federal Law of Economic Competition (LFCE) was published in the Diario Oficial
de la Federación, which: (i) increased the penalties for breaches of the law;
(ii) extended the list of relative monopolistic practices; (iii) strengthened the
COFECE’s powers related to the investigation of monopolistic practices by means
of the introduction of powers to conduct on-site searches; (iv) implemented the
immunity program to identify cartels more easily; (v) reduced the cases of con-
centrations that required notice to be served upon the Commission; and, finally,
(vi) introduced some institutional modifications and corrections to specific provi-
sions of the law (Diego-Fernández 2010: 79). In addition, the 2006 reform included
new powers for the COFECE to render binding opinions on the regulation that
might have effects contrary to economic competition (OECD 2012: 35). This
strengthened its participation in regulatory processes and required more cooperation
with the Regulatory Improvement Council.
Additionally, this legislative reform clarified the circumstances where relative
monopolistic practices could be exempted from sanction. Indeed, a paragraph was
added at the end of Article 10 of the law then in force, which provided that the
COFECE could choose not to punish those practices, provided that the economic
agent proved the existence of efficiency gains and a favorable impact on the process
of free competition resulting from its behavior. A list of different situations that
could involve efficiency gains, such as the introduction of new products, the
reduction of production costs, or the inclusion of technological advances, included
net contributions to consumers’ welfare, whenever these outweighed the anticom-
petitive effects of the behavior. This addition to the law assumed express
acknowledgement, though extremely limited and on a secondary basis, by con-
sumers as beneficiaries of the economic competition policy.
Despite the advances entailed by the 2006 legislative reform, some of its
additions were found invalid by the Mexican Supreme Court of Justice, by reason
of the Action of Unconstitutionality 33/2006 filed by Mexico’s Attorney General.
In particular, all provisions that set forth the participation of the Congress of the
Union and jurisdictional authorities in matters related to the COFECE’s structure
and exercise of powers became void. This was because the Supreme Court con-
sidered that it might amount to a violation of the principle of separation of powers,
since the COFECE was a decentralized agency, assigned to the public adminis-
tration and thus under the control of the Federal Executive Branch.8
Moreover, the 2006 legislative reforms still faced some difficulties. One of them
was on-site searches. While their introduction strengthened the competition agen-
cy’s ability to investigate anticompetitive behavior, “the COFECE had to announce
searches in advance, reducing the effectiveness of its cartel detection work” (OECD
2012: 35). Additionally, the amount of fines was still insufficient to deter anti-
competitive behavior and the filing of increasingly complex cases showed new
requirements from the authority (Diego-Fernández 2010: 79).
15.2.3 Legislative Reforms of 2011
The experience acquired so far and, hence, the accuracy in identifying the problems
faced by the COFECE to achieve its goals led to the 2011 legislative reform.9
Indeed, many of the concerns pending after the 2006 reform were addressed by this
amendment. This is apparent in the modifications introduced to simplify the noti-
fication process of certain types of mergers and reduce the situations that require it;
to extend the scope of the immunity program in order to include both individuals
and companies (OECD 2012: 34); to strengthen the COFECE’s powers to conduct
investigations and procedures intended to determine sanctions for monopolistic
practices and unlawful concentrations; as well as to increase the amount and nature
of sanctions.
It should also be noted that these amendments to Mexico’s antitrust law
addressed the concept of “joint dominance”. Prior to these amendments, the LFCE
just prohibited “unilateral abuses of dominance by one firm with market power”
(Fitzpatrick/Aziz 2010). The 2011 reform extended the meaning of significant
power “to multi-agent setting, in which a set of economic agents can be identified to
have, collectively, significant market power” (Pavón-Villamayor 2010).
The 2011 reform of the LFCE introduced a distinction between the investigation
phase (by the COFECE’s Technical Secretary) and the procedural phase to deter-
mine applicable sanctions (assigned to a Reporting Commissioner to prepare a draft
resolution submitted for vote at an En Banc Session). Thus, the decision-making on
potential unlawful behavior was spread across different actors, so as to create
intra-institutional checks and balances. Emphasis was further placed on the
importance of strengthening on-site searches, in order that they would no longer
have to be announced in advance. The reform introduced the COFECE’s power to
order precautionary measures for the purpose of temporarily suspending certain
practices that might harm competition, or rather consumers, even during the
8
Supreme Court of Justice of the Nation (2007). Action of Unconstitutionality 33/2006.
9
Published in the Diario Oficial de la Federación on 10 May 2011.
investigation phase (Senate 2010).10 Furthermore, other improvements, such as oral

hearings or “settlement mechanisms in unilateral conduct cases and commitments
for merger reviews”, were made to the proceedings (OECD 2012: 34). In addition,
these amendments introduced an anticipated termination mechanism to conclude
the procedures followed in cases of relative monopolistic practices or undue con-
centrations. For those purposes, the economic agents were allowed to formally
declare their commitment to suspending or not performing the corresponding
anticompetitive behavior, and the COFECE was empowered to do so. With regard
to sanctions, it was again noted that they were inadequate to deter improper be-
havior by economic agents (particularly, large companies), wherefore their amounts
were increased, based on an estimate of economic agents’ income (Senate 2010).
Also, some behaviors deemed absolute monopolistic practices were referred to as
crimes, and the COFECE was empowered to file complaints with the relevant
authorities in charge of prosecuting crimes.
One of the main goals of the reform was to create mechanisms that made the
competition agency’s decisions more transparent and certain. Therefore, the
COFECE imposed several duties related to the disclosure of its acts and the issu-
ance of technical criteria.
Finally, the 2011 legislative reform provided for the need to create courts spe-
cialized in economic competition within the jurisdictional scope of ordinary
administrative proceedings. Despite the advantages of the courts’ specialization and
the simplification of the means of appeal, “the length of time that courts took to
review cases remained a problem since the specialized courts with expert judges
that were envisioned by the reform were not set up and the ordinary administrative
judicial procedure before these courts was never implemented” (OECD 2016: 20).
That same year, another reform was introduced to several legal systems that
allowed class actions to be filed and damages to be claimed through civil pro-
ceedings by those who have suffered some damage as a consequence of monop-
olistic practices or unlawful concentrations.11 Thus, the way was paved for
strengthening the position of consumers against the negative effects of anticom-
petitive practices.
All these legislative reforms not only made Mexico a case in point on account of
its ability to adopt economic competition policies progressively and successfully
10
Joint opinion issued by the Trade and Industrial Promotion Commission and the Second
Legislative Studies Commission on the draft Executive Order to amend, add and repeal different
provisions of the Federal Law of Economic Competition, the Federal Criminal Code, the Fiscal
Code of the Federation, the Federal Law of Contentious-Administrative Procedure, and the
Organic Law of the Federal Court of Fiscal and Administrative Justice], Gaceta Parlamentaria
LXI/2PPO-195/28050, December 9, Mexico; at: http://www.senado.gob.mx/index.php?ver=
sp&mn=2&sm=2&id=28050.
11
Executive Order to amend and add the Federal Code of Civil Procedure, the Federal Civil Code,
the Federal Law of Economic Competition, the Federal Consumer Protection Law, the Organic
Law of the Judicial Power of the Federation, the General Law of Ecological Balance and
Environmental Protection, and the Law for the Protection and Defense of the User of Financial
Services, published in the Diario Oficial de la Federación on 30 August 2011.
(Aydin 2016: 157), but also placed the country on a par with best international
practices in the area, through the institutional strengthening of the agency, the
continuous improvement of its procedures to investigate and impose sanctions, and
the introduction of measures to promote transparency and accountability (OECD
2012: 35).
15.3 Structural Reforms in Economic Competition
In December 2012, the main political forces at that time, together with the Federal
Government, signed the so-called Pact for Mexico, whereby they undertook, inter
alia, to: (i) enhance economic competition in all sectors, but especially in those
regarded as strategic – telecommunications, transportation, financial, and energy;
(ii) strengthen the COFECE; (iii) create courts specialized in economic competition
and telecommunications; and (iv) guarantee equal access to telecommunications
through measures that strengthen the autonomy of the regulatory body of that sector
and increase competition in radio, television, telephone and data services.12 The
purpose of the Pact for Mexico was to ensure the implementation of a series of
structural reforms in order to comply with the commitments undertaken. It was
precisely in that context that the 2013 constitutional reforms on economic com-
petition and telecommunications and radio broadcasting were presented.13 These
reforms, in turn, would be developed by enacting a new Federal Law of Economic
Competition14 and the Federal Telecommunications and Radiobroadcasting Law.15
While these reforms focused on the problems faced by the telecommunications
sector (Elizondo 2015: 44), the truth is that significant modifications were intro-
duced in: the institutional design of competition agencies (2.1); the scope of their
powers (2.2); and the realization of the specialization of jurisdictional bodies (2.3).
15.3.1 Institutional Design
As far as institutional design is concerned, the 2013 constitutional reforms created

two antitrust agencies to deal with economic competition matters. On the one hand,
the COFECE was re-founded with power over any sector or market on an inter-
linked basis, and, on the other hand, the Federal Telecommunications Institute, the
12
Pacto por México. Todos trabajando por ti (2012). Signed on December 2 by the presidents of
the executive committees of the political parties Acción Nacional, Revolucionario Institucional
and Revolución Democrática. See clause 2. “Acuerdos para el crecimiento económico, el empleo y
la competitividad” [Agreements on economic growth, employment and competitiveness].
13
Published in the Diario Oficial de la Federación on 11 June 2013.
14
Published in the Diario Oficial de la Federación on 23 May 2014.
15
Published in the Diario Oficial de la Federación on 14 July 2014.
functions of which were limited to telecommunications and radio broadcasting, was

created (to replace the COFETEL). Both entities were vested with constitutional
autonomy and, therefore, were neck and neck with the executive, legislative and
judicial branches. Thus, they abandoned their position of hierarchical subordination
as decentralized bodies of the Ministry for Economy and the Ministry for
Communications and Transportation, respectively.
This legal modification of the COFECE finally enabled the many attempts
undertaken during both the 2006 legislative reform and the 2011 legislative pro-
cedure to be realized, so as to strengthen the Commission’s independence. At
present, the Federal Executive Branch is in charge of appointing commissioners
from both the COFECE and the Federal Telecommunications Institute (Spanish
acronym: IFETEL), subject to the Mexican Senate’s approval. Moreover, its
appointment scheme is designed to select commissioners based on candidates’
merits and technical expertise. For such a purpose, Section 28 of the Political
Constitution of the United Mexican States, as amended, provides for the creation of
an Evaluation Committee in charge of examining expertise and submitting pro-
posals for appointment by the Executive Branch.
Likewise, Section 28 lists some measures intended to strengthen the autonomy
of the COFECE and the IFETEL, such as the autonomous exercise of their budget
and the constitutional guarantee of budgetary adequacy, the removal of commis-
sioners only for serious offenses established by laws and by a qualified majority
voting of the Mexican Senate, and the creation of an incompatibility system that
guarantees their independence and fairness in the decision-making process.
In that regard, it should be noted that while the structure of the COFECE and the
IFETEL as autonomous constitutional bodies strengthens their autonomy and
independence, the truth is that it poses significant “challenges of coordination of
public policies” (Elizondo 2015: 45).16 Also essential is the relationship between
economic competition bodies and the institutions promoting regulatory improve-
ment at both federal and state level. While the former are autonomous – i.e. not
subordinate to the powers of the union – the latter are part of the Public
Administration that forms the basis of the Executive Branch at both federal and
state level. Accordingly, their closeness and the cooperation mechanisms that
govern them are subject to political will, although “the most harmful restrictions on
competition are precisely the regulatory barriers imposed by the authorities them-
selves” (COFECE 2018: 5).
Another aspect that prevents bodies engaged in economic competition and
telecommunications from being captured by economic agents and other stake-
holders is the adoption of government transparency policies, under the principles of
16
“The constitutional text did not foresee that, in practice, there would be difficulties in deter-
mining the scope of action of each agency” (Núñez 2017a, b). An example of this is the
AT&T-Time Warner merger case, in which the economic agents had to notify both agencies
(IFETEL and COFECE), since the merger did not just affect the telecommunications sector; see at:
https://www.eleconomista.com.mx/opinion/Cofece-e-IFT-delineando-responsabilidades-
20170320-0006.html.
digital government and open data, as well as the incorporation of accountability

mechanisms through reporting and appearance before the Congress of the Union
and even the Federal Executive Branch, in compliance with Section 28 cited above.
All that relates to another structural reform that deals with transparency and the
right of access to public information, entrusted to another body recently considered
constitutionally autonomous (that is, the National Institute for Transparency,
Access to Information and Personal Data Protection, INAI).17
Finally, it is worth pointing out that, in an internal scheme of checks and bal-
ances, the economic competition system is built on the idea of separating the
investigating authority from decision-making bodies. This reinstates one of the
rationales that guided the 2011 reform and grants it constitutional status.
15.3.2 Scope of Powers
With regard to the powers of the COFECE and the IFETEL in terms of competition,
the amendment of Section 28 of the Mexican Constitution grants constitutional
status to the goals outlined in secondary legislation, that is to: “[…] guarantee free
competition and maximized turnout to the marketplace, as well as prevent, inves-
tigate and police monopolies, monopolistic practices, economic concentrations and
any other restrictions to the efficient operation of markets, in accordance with the
Constitution and the law.”18 For such a purpose, this section provides that the
Commission, as well as the IFETEL, has all the necessary powers to accomplish
their task efficaciously.
Although the new LFCE incorporates, to a great extent, those powers of
investigation and sanctioning that had been strengthened since the former law, new
powers are introduced, such as the power to “regulate access to essential facilities,
and order divestment of certain assets, rights, stakes or shares of economic agents,
in the proportion needed to remove anti-competitive effects” (Section 28, Mexican
Constitution). The inclusion of this aspect, in addition to encouraging compliance
with the goals of economic competition bodies, was envisaged as a sanction in
order to deter anticompetitive behavior (Guajardo 2014: 40).
These new powers, which, in turn, entail the introduction of unprecedented
concepts in the Mexican legal system, as in the case of essential facilities, have been
17
See “Decreto por el que se reforman y adicionan diversas disposiciones de la Constitución
Política de los Estados Unidos Mexicanos, en materia de transparencia” [Executive Order to
amend and add different provisions of the Political Constitution of the United Mexican States on
transparency], published in the Diario Oficial de la Federación on 7 February 2014.
18
In terms of Article 61 of the Mexican Federal Law on Economic Competition, published in the
Diario Oficial de la Federación on 23 May 2014, a concentration “shall be understood as a
merger, acquisition of control, or any other act by means of which companies, associations, stock,
partnership interest, trusts or assets in general are consolidated, and which is carried out among
competitors, suppliers, customers or any other Economic Agent.”
subject to questioning by scholars and lawyers due to the legal uncertainty posed by
their recent development (CIDAC 2015: 3). Although these powers have already
been implemented by antitrust agencies, they are still subject to discussion and there
is little case law that provides full certainty as to their scope.
Concerning the new powers of the economic competition agency, in 2014 two
special procedures were included in the LFCE: (a) one to determine the existence of
essential facilities; and (b) another to prevent and eliminate barriers to free market
access and economic competition.
In addition, economic competition bodies have no power to file unconstitu-
tionality claims in relation to both federal and local regulations that might be
contrary to economic competition (COFECE 2018: 13). This is particularly relevant
considering that unconstitutionality claims are a means of constitutional control
whereby the Mexican Supreme Court of Justice may decide on the potential con-
tradiction between the constitutional text and a legal provision of a lower status;
moreover, they are a power granted to other autonomous constitutional bodies
under Section 105 of the Political Constitution of the United Mexican States.
15.3.3 Specialization of Jurisdictional Bodies in Economic

Competition
One of the main goals of the 2013 constitutional reform19 and the subsequent LFCE
was to prevent litigation being used to escape the effectiveness of the measures
taken by economic competition bodies to reduce the companies’ market power and
anticompetitive practices.20 For such purposes, applicable regulations significantly
reduce the opportunities and means to challenge the decisions rendered by the
Commission and the IFETEL. This eliminates the possibility of questioning them
through federal contentious-administrative proceedings before the Federal Court of
Administrative Justice (formerly, the Federal Court of Fiscal and Administrative
Justice) and the administrative motion – for reconsideration or review – filed before
the economic competition bodies. Therefore, since the reform, the decisions issued
by antitrust agencies may only be challenged through indirect amparo proceedings,
instituted before courts of the Judiciary specialized in economic competition, radio
broadcasting and telecommunications. This is in addition to the inability to request
a stay of the relevant act.
19
With a draft Executive Order to reform and add different provisions of the Political Constitution
of the United Mexican States. Gaceta Parlamentaria, XVI, 3726-II (12 March), Mexico,
Legislative Palace of San Lázaro.
20
See: Chamber of Deputies, LXIL Legislature (2013). “Iniciativas del Titular del Poder Ejecutivo.
Con proyecto de decreto, que reforma y adiciona diversas disposiciones de la Constitución Política
de los Estados Unidos Mexicanos” [Executive Branch Initiatives. With a draft Executive Order to
reform and add different provisions of the Political Constitution of the United Mexican States],
Gaceta Parlamentaria, XVI, 3726-II (12 March), Mexico: Legislative Palace of San Lázaro: 20ff.
The creation of courts specialized in economic competition, radio broadcasting

and telecommunications means that judges must have experience and technical
expertise in these fields and that their number is necessarily limited (OECD and
Ministry of Economy 2016: 46). Additionally, this specialization – given the
characteristics of the matters addressed – means that court decisions need to inte-
grate an interdisciplinary vision that considers the impact of such decisions on the
market in terms of economic efficiency.
In general terms, the specialization of the courts dealing with matters related to
economic competition, broadcasting and telecommunications is associated with
many advantages, such as more efficient procedures, better quality decisions, and
enhanced uniformity of decisions with a resulting higher legal certainty (OECD and
Ministry of Economy 2016: 57). However, the professionalization and ongoing
training of the members of these courts are essential to maintain their effectiveness.
Lastly, it is worth highlighting one of the powers granted under the new LFCE to
these specialized courts, which could substantially change the role of consumers in
economic competition processes. It is the possibility of dealing, either individually
or collectively, with claims for damages caused by monopolistic practices or
unlawful concentrations, once the decisions issued by economic competition bodies
have become final (Article 134 of the law). This addition strengthens the measures
outlined since the 2011 reforms in different legal systems, intended to generate
favorable conditions so that consumers could obtain compensation for behavior
contrary to free competition and maximized turnout to the marketplace.
The inclusion of redress in relation to anticompetitive behavior could entail, in
practice, a means of narrowing the distance between economic competition policies
and society in general, thus encouraging the adoption of a true competition culture.
However, its acceptance is still at an early stage of consolidation. Besides, there are
aspects that create some uncertainty over the scope of its effectiveness, such as the
courts’ ability to determine proper compensation and the disincentives that this
scheme could create for economic agents to stick to the immunity program under
the law (Núñez 2017a, b). In addition, there have been some situations that call into
question the possibility that the specialized courts may comply with the objectives
foreseen by the amendments, given the uncertainty about the length of judges’
appointments and the lack of transparency in the criteria for their removal. This is
the case of Judge Tron Petit, who was removed before the end of the period for
which he was appointed after issuing a resolution against a major company with
significant market power in the telecommunications sector (Levy 2011).
15.4 Conclusions
Economic competition in Mexico is the consequence of ongoing evolution which,

five lustra after its reception, has achieved high international standards. The dif-
ferent legislative reforms on this matter, as well as the 2013 constitutional reform
and its secondary legislation, have strengthened the autonomy and independence of
economic competition bodies, their powers to meet their goals, and the judicial
protection procedures that discourage litigation without restricting access to justice.
All this contributes to consolidating the rule of law in this field. Nevertheless, there
are still tasks which need to be completed, not only to promote new regulatory
amendments, but also because many of the goals depend on their effective imple-
mentation, the coordination of public policies and the development of precedents
that provide more legal certainty.
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Orgánica del Tribunal Federal de Justicia Fiscal y Administrativa”.
Supreme Court of Justice of the Nation (2007). “Decision and individual opinion by Minister Olga
Sánchez Cordero de García Villegas, Action of Unconstitutionality 33/2006”, in: Diario Oficial
de la Federación (12 July).
Witker, Jorge (2017). “El Capítulo Económico de la Constitución de Querétaro” [The Economic
Chapter of the Querétaro Constitution], in: Revista de la Facultad de Derecho de México,
67,267: 567–599.
Universidad de las Américas Puebla
(UDLAP)
With over 75 years of experience, Universidad de las Américas Puebla (UDLAP) is

an academic institution with more than 70 undergraduate and graduate study pro-
grams in diverse areas. It offers a multicultural experience to its students, including
the 55 nationalities represented on campus due to its exchange agreements with
nearly 40 countries.
UDLAP has a beautiful and unique campus located in Cholula, the oldest city in
Latin America. The laboratories, library, computer rooms, and classrooms have the
latest technology, allowing students to transform their theoretical knowledge into
practice, thus strengthening their abilities and competencies. Aside from ample
knowledge and experience, 99% of UDLAP’s faculty have graduate degrees. They
also devote time to research and artistic creation, and one in every three full-time
professors belongs to Mexico’s National Research System. Quality at UDLAP is
backed by international accreditations, such as the one granted by the Southern
Association of Colleges and Schools Commission on Colleges (SACSCOC) since
1959. This accreditation has been ratified to its highest level, being one of only two
universities outside the United States to have a level 6. UDLAP is the only
one-campus university in Latin America to have 5 stars overall from QS Stars in
2017, earning 5 stars in teaching, internationalization, inclusion, infrastructure, and
employability.
Address: Ex Hacienda Sta. Catarina S/N. San Andrés Cholula, Puebla, C.P. 72810.
Mexico.
Website: www.udlap.mx

https://doi.org/10.1007/978-3-030-31314-2
About the Editor
Juan Antonio Le Clercq has a Ph.D. in Political and

Social Sciences, a Master’s in Political Sciences and
a Bachelor’s in Political Sciences and Public
Administration from the Universidad Nacional
Autónoma de México (UNAM) with a Specialization in
Politics and Energy and Environmental Management
from the Facultad Latinoamericana de Ciencias
Sociales (Flacso). He is full-time professor of Political
Science and International Relations, Academic
Director of the Department of International Relations
and Political Science, UDLAP; Coordinator of the
Centro de Estudios sobre Impunidad y Justicia
(CESIJ); and Coordinator of the Global Impunity
Index and Global Impunity Index Mexico,
UDLAP. Since 2017, Dr. Le Clercq has been a
Non-resident Scholar in the Mexico Center of the
Baker Institute at Universidad de Rice. He is co-author
of the Global Impunity Index (IGI) 2015 and 2017, as
well as the Global Impunity Index Mexico (IGI-MEX)
2016 and 2018, all edited by UDLAP. His publications
include:
Le Clercq, Juan Antonio (2018), “El complejo impu-

nidad”, in Laura Loeza and Ana Liese Richard (eds.),
Derechos Humanos y violencia en México, Mexico:
UNAM.
Le Clercq, Juan Antonio. (2017), “The Relationship
Between Impunity and Inequality Globally and in
Mexico”, in Úrsula Oswald Spring and Serena Eréndira

https://doi.org/10.1007/978-3-030-31314-2
284 About the Editor
Serrano (eds.), Risks, Violence, Security and Peace in

Latin America: 40 Years of the Latin American Council
of Peace Research (CLAIP), Cham: Springer, pp. 195–
205.
Le Clercq, J.A., Chaidez, A., Rodríguez, G.
(2016) “Midiendo la Impunidad en América Latina”, in
Iconos de la Facultad Latinoamericana de Ciencias
Sociales (FLACSO-Ecuador), No. 55, March 2016,
pp. 69–91. ISSN: 1390-1249. http://dx.doi.org/10.
17141/iconos.55.2016.1934.
Le Clercq, J.A., (2015) “Regime Change, Transition to
Sustainability and Climate Change Law in Mexico”, in
Brauch, Hans Günter, Oswald Spring, Úrsula; Grin,
John; Scheffran; Jürgen (Eds.), Handbook on
Sustainability Transition and Sustainable Peace,
pp. 505–523.
Abreu, J.P., Le Clercq, J.A. (Coords.); Porrúa, M.A.
(Ed.) (2011) “La reforma humanista. Derechos
Humanos y cambio constitucional en México” City.
Publisher/institution.
He contributes a weekly column to the online news
portal Eje Central (www.ejecentral.com.mx).
Address: Ex hacienda de Sta. Catarina Mártir, 72810,
San Andrés Cholula, Puebla, Mexico.
Email: [email protected]
About the Co-Editor
José Pablo Abreu Sacramento has a Bachelor’s Degree

in Law from the Universidad Marista (Merida, Mexico,
2004), a Diploma in Political Science and
Constitutional Law from the Centro de Estudios
Politicos y Constitucionales (Madrid, Spain, 2005); an
M.Sc. in Philosophy and Public Policy from the
London School of Economics and Political Science
(London, UK, 2017) and a Ph.D. from the Universidad
Complutense (Madrid, Spain, 2009). He has served as
an advisor to congressmen at the Chamber of Deputies
(2006–2010) and Senate (2010–2012) and as an advi-
sor to the Chief Justice at the Electoral Court of the
Federal Judicial Branch (2012–2015). He has taught
Constitutional and Electoral Law at different private
and public univeristies in Mexico and is now the
Director of the Bachelor Degree in Law at the
Tecnológico de Monterrey, Campus Santa Fe.
Address: Av. Carlos Lazo 100, Santa Fe, La Loma,
01389, Ciudad de Mexico, Mexico.

https://doi.org/10.1007/978-3-030-31314-2
About the Contributors
Cristopher Ballinas Valdés is a specialist in the study of executive government,

regulation and public sector reform. A Doctor of Philosophy in Politics from the
University of Oxford, his research agenda explores the effects of politics and in-
stitutions on policy outcomes – the politics of policies. Dr. Ballinas Valdés presents
a broad high-level experience in policy instrumentation. As a result, he has
developed a portfolio focusing on the areas of public sector reform, regulation,
social policy, re-engineering, transparency, corruption control and border security.
Rafael Estrada Michel is a lawyer from the Escuela Libre de Derecho (ELD),
Mexico, and received his doctorate in the History of Law and Legal, Moral and
Political Philosophy program at the University of Salamanca (USAL) in Spain. He
studied a Diploma in Legal Anthropology at the National School of Anthropology
and History (ENAH). Between 2009 and 2016 he was a Counselor of the National
Commission of Human Rights, appointed by the Senate, and between 2012 and
2016 he served as Director General (dean) of the National Institute of Criminal
Sciences (INACIPE), appointed by the President of Mexico. In 2018 he was des-
ignated Visiting Research Professor at the University of Pisa, Italy. A member of
the National Researchers System, level 2.
Since 1997 has been teaching public law and legal history at his alma mater and
at Universidad Iberoamericana [Iberoamerican University] (UIA), Universidad
Panamericana [Panamerican University] (UP), Universidad Nacional Autónoma de
México [National Autonomous University of Mexico] (UNAM), Universidad
Autónoma Metropolitana [Metropolitan Autonomous University] (UAM), Instituto
Tecnológico Autónomo de México [Autonomous Technological Institute of
Mexico] (ITAM), Universidad La Salle (ULSA) [La Salle University], Instituto
Tecnológico y de Estudios Superiores de Monterrey [Monterrey Institute of
Technology and Higher Education] (ITESM), Universidad Latina de América
[Latin University of America] (UNLA), Universidad Autónoma de Nuevo León

https://doi.org/10.1007/978-3-030-31314-2
288 About the Contributors
[Nuevo León Autonomous University] (UANL), and Universidad Pontificia de

México [Pontifical University of Mexico] (UPM).
Ana Elena Fierro is a Doctorate in Law from the Instituto de Investigaciones
Jurídicas de la UNAM. LLM from the Georgia University and Master in
Philosophy from the Universidad Anáhuac, campus Mayab. Bachelor in Law from
ITAM. Nowadays, Ana E. Fierro is Coordinator of the Master in Managment and
Public Policy and research professor at the CIDE. Her interests are transparency,
accountability and responsibility of civil servants.
Email: ana.fi[email protected]
Camilo Gutiérrez worked at the World Justice Project from 2016 to early 2019,
where he managed data analysis for the Rule of Law Index. Prior to joining the
WJP, he worked as a professor and research assistant at Universidad de los Andes,
in Bogotá, Colombia. He holds a B.A. and Masters in Economics from Universidad
de los Andes
Fernando Herrera holds a B.A. in Marketing and International Business from the
Universidad Autónoma de Yucatan (UADY), and a Master in Latin American
Studies from Université Paris III Sorbonne Nouvelle. He has collaborated at Higher
Education Institutions such as UADY and CIDE. He has also worked as a con-
sultant for non-profit organizations participating in projects related to transparency
and accountability, education and social policy. He currently works at the School of
Social Sciences and Goverment of Tecnológico de Monterrey.
María Solange Maqueo Ramírez, Associate Research Professor at the Legal Studies
Division of the Economic Research and Teaching Center (CIDE) and Chair of the
Advisory Board of the National Institute for Transparency, Access to Information
and Personal Data Protection (INAI).
Joel Martinez is the Director of Engagement at the World Justice Project. Prior to
joining the WJP, Mr. Martinez worked with the Massachusetts Commission
Against Discrimination in its enforcement of anti-discrimination laws, focusing on
outreach to low income communities. He earned his B.A. in Economics and
Political Science from Middlebury College
María Novoa is Coordinator of the Justice Project in México Evalúa. She has
worked in the World Bank, the Inter-American Development Bank, PNUD, the
European Union and USAID. She has also been part of different projects for
institutional strengthening in El Salvador, Mexico, Paraguay, Guatemala,
Venezuela, Honduras, Bolivia, Ukraine and Azerbaijan. She has a Master’s degree
in Public Policy from the Universidad Simón Bolívar.
About the Contributors 289
Mauricio Olivares-Méndez, is a researcher-in-training especially interested in social

cohesion, diversity, political rights and migration studies. National Council for
Science and Technology fellow, 2013–2015 and Recipient of an Erasmus Mundus
Scholarship to pursue a Joint Masters degree at the Universities of Amsterdam,
Deusto and Osnabrück. Currently working at Universidad Autónoma de Querétaro
coordinating the undergraduate program in Political Science and Public
Administration.
Tony Payan is the Françoise and Edward Djerejian Fellow for Mexico Studies and
director of the Mexico Center at the Baker Institute. He was adjunct associate
professor at Rice University, professor at the Universidad Autónoma de Ciudad
Juárez and professor of political science at The University of Texas at El Paso
between 2001 and 2015. He has a doctorate degree in international relations from
Georgetown University and his research focuses primarily on border studies, par-
ticularly the US-Mexico border, border governance, border flows and immigration,
as well as border security and organized crime.
Alejandro Ponce is the Chief Research Officer of the World Justice Project. He
joined the WJP as Senior Economist and is one of the original designers and a lead
author of the WJP Rule of Law Index. Prior to joining the World Justice Project, Dr.
Ponce worked as a researcher at Yale University and as an economist at the World
Bank and the Mexican Banking and Securities Commission. Dr. Ponce has con-
ducted research in the areas of behavioral economics, financial inclusion, justice
indicators, and the rule of law, and has been published in collected volumes as well
as top academic journals such as the American Economic Review and the Journal of
Law and Economics. He holds a BA in Economics from ITAM in Mexico, and an
MA and Ph.D. in Economics from Stanford University.
Eduardo Román González is a Doctor in Law, Government and Public Policy from
Universidad Autónoma de Madrid, Spain; Coordinator of Research at CEEAD, a
Mexican independent research center focused on legal education; Professor of
Constitutional Law, Human Rights and Public International Law at Facultad Libre
de Derecho de Monterrey and Tecnológico de Monterrey, Monterrey Campus.
Member of the Mexican National System of Researchers (Sistema Nacional de
Investigadores, SNI).
Jorge Javier Romero is Research Professor C, of the Department of Politics and
Culture at the Universidad Autónoma Metropolitana Xochimilco attached to the
Public Policies area, and professor of the postgraduate division of the Faculty of
Political and Social Sciences of the UNAM. Professor Romero has carried out
research visits at the Institute of Advanced Social Studies of the Spanish National
Research Council and has given lectures at different universities and study centers
in Mexico and Spain. He is currently on sabbatical at the Drug Policy Program of
290 About the Contributors
the CIDE Centro Region, where he directs the Diploma in Drug Policy and the
Internal Seminar of the PPD.
Vidal Romero is Professor at the Political Science Department at ITAM and
Visiting Fellow (2018–2019) at the Latin America and Caribbean Centre (LACC) at
the London School of Economics and Political Science. He holds a Ph.D. in
Political Science from Stanford University. He was visiting Professor at Stanford
University (2012–13). Romero is Co-Director of ITAM´s Center of Studies on
Security, Intelligence, and Governance. His current research examines the condi-
tions under which governments can establish (democratic) order in their territories.
He has collaborated on different research projects with the World Bank, the Wilson
Center, México Evalúa, the National Endowment for Democracy, and the
Inter-American Development Bank.
Rodolfo Sarsfield is an Associate Professor at the Autonomous University of
Queretaro. He received his Ph.D. in Political Science from the Facultad
Latinoamericana de Ciencias Sociales [Latinamerican Faculty of Social Sciences]
(FLACSO) in 2004. He has been Associate Researcher of the Latin American
Public Opinion Project at Vanderbilt University, and Affiliated Researcher of the
Department of Legal Studies at the Centro de Investigación y Docencia Económicas
[Center for Research and Teaching in Economics] (CIDE). He is currently a Board
Member of the Committee on Concepts and Methods at the International Political
Science Association (IPSA), and he collaborates with the Mass Survey team for
Team Populism.
His research focuses on the study of social norms, preference formation, and
political attitudes, with an emphasis on the attitudes toward democracy, corruption,
informal rules, and the rule of law in Latin America. Also, he studies concepts and
methods in political science. He is the editor of the special issue for Justice System
Journal on “The Rule of Law” (with Ryan E. Carlin). He also is the author of
Research Design (with G. Dave Garson, Statistical Associate Publishing, Asheboro,
NC). He has published more than two dozen journal articles and contributions to
edited volumes.
Email: rodolfo.sarsfi[email protected]
Karen Silva is a researcher of the Justice Project in México Evalúa. Previously, she
coordinated the Drugs Policy Program at the CIDE. She has a Bachelor’s degree in
Law from the UNAM
Leslie Solís joined the World Justice Project in the fall of 2016, after spending five
years as a criminal justice analyst at the prominent think tank México Evalúa in
Mexico City. She was also an editorial advisor for the Justice Section at Diario
Reforma, one of Mexico’s largest daily newspapers, for two consecutive years. She
holds a BA in Political Science and International Relations from CIDE.
About the Contributors 291
Radu-Mihai Triculescu, Early Stage Researcher under the Marie Skłodowska-Curie

actions, Horizon 2020 of the E.U., University of Twente, Enschede, Netherlands.
He holds a Master Degree in International Affairs from Florida State University
(2013), and a Joint Master in International Migration and Social Cohesion from the
University of Amsterdam, Universidad de Deusto, and Osnabruck University
(2015). He completed his Bachelor studies in Political Science and International
Affairs at Florida State University (Magna Cum Laude, Phi Beta Kappa, 2011).
Index
A Armed Forces, 13, 28, 45, 51, 164, 232, 236,

Abimourched, Rola, 136 237
Abreu, Jose P., 171, 285 Arneson, Richard J., 161
Accountability, 4, 10, 11, 30, 31, 53, 61, 68, Arnson, Cynthia, 114, 116
85, 103, 137, 138, 141–153, 167, 217, Article 19, 255
254, 273, 275, 288 Asúnsolo, C. R., 178, 183, 187
Accusatory Criminal Justice System, 193, 196, Asimov, Michael, 145
201, 203, 204 Atak, Idil, 127, 136, 138
Acemoglu, Daron, 228 Atuesta Becerra, Laura H., 115
Ackerman, John, 143 Autonomous Technological Institute of
Adcock, Robert, 24, 25, 33 México, 40, 57, 58, 141, 287–290
Administrative Courts, 11, 46, 66, 145–148, Axelrad, Lee, 243
153 Aydin, Umut, 268–270, 273
Administrative Justice, 46–48, 54, 218, 272, Aziz, Luis Alberto, 271
276
Administrative Responsibility Penalties, 217 B
Agnew, John, 125 Ballinas, C., 12, 214, 287
Agrast, Mark, 4 Barris, Accul, 169
Aguiar Aguilar, Azul A., 195 Barros, Rober, 20, 24
Aguilar Rivera, José Antonio, 88 Bates, Robert H., 108
Ahmad, Nabeela, 114 Becker, Lawrence, 170
Amendments, 8, 11, 14, 81–83, 87–92, 97, Beeson, Mark, 125
102, 103, 129, 130, 142, 175, 176, Begné Guerra, Cristina, 51
178–180, 183, 184, 188, 232, 271, 272, Behavior, 1, 2, 4, 7, 9, 12, 20, 27–30, 66, 85,
275, 277, 278 108, 112, 118, 156, 168, 169, 171, 266,
American Convention of Human Rights, 152, 268–272, 275, 277
180 Behn, Robert D., 144
Amparo, 11, 12, 46, 130, 134, 141–143, 146, Bejarano, Raúl, 236
149–153, 175, 185, 199, 276 Bellamy, Richard, 85
Anaya, Jorge, 278 Belton, Rachel, 20, 32, 34
Anaya Muñoz, Alejandro, 136 Benton, Allyson, 211
Anstett, Élisabeth, 41, 43 Bergman, Marcelot, 114
Antitrust, 271, 273, 276 Bingham, Lord, 254
Aparicio, Francisco, 211 Bingham, Tom, 2, 20, 32, 84, 128
Argyris, Chris, 144 Black’s Law Dictionary, 143

https://doi.org/10.1007/978-3-030-31314-2
294 Index
Blanco, Luisa R., 114 Checks and balances, 2, 12, 30–32, 34, 84, 86,
Blanton, Robert, 126 143, 153, 209, 210, 212, 220, 271, 275
Blanton, Shannon L., 126 Chemerinsky, Erwin, 60
Booth, John A., 168 Chwe, Hanyu, 251
Borja, R., 195 Citizen Council of the National Institute of
Borrego Estrada, Felipe, 52 Migration, 134
Botero, Juan, 62 Citizenry, 10, 32, 156, 157, 162, 166, 167
Bovens, Mark, 143 Civic culture, 156, 166–169
Brandt, Richard B., 160 Civic education, 10, 155–157, 165–167,
Bufford, Samuel, 266, 267 169–171
Burgoa, Ignacio, 146 Civil justice, 5, 7, 58, 59, 61, 63, 66, 68, 70, 74,
Burstein, Paul, 253 82, 97, 195, 252
Civil law, 39, 41, 50
C Clientelism, 229, 233, 235, 238
Caballero, José Luis, 87, 89 Clifton, Judith, 254
Cacicazgo, 13, 224–227, 229 Coatsworth, J., 227
Caldeira, Gregory A., 20, 28, 29 Cohen, G. A., 166, 170
Calderón Chelius, Leticia, 51 Cohen, Jean L., 125
Calderón, Gabriela, 111 Collective goods, 160, 161
Calderón Hinojosa, Felipe, 91, 232, 234, 235, College of México, 158, 159
246, 253, 254, 256 Collier, David, 19–21, 24, 25, 29
Calderón, Laura, 256 Collins, James, 115
Caldwell, Bruce, 32 Community life, 155–157, 159–162, 164–166,
Calsamiglia, Albert, 278 168–171
Calzada Olvera, Rebeca, 235, 236 Competition law, 14, 267, 270
Cameron, Maxwell, 30 Computer-assisted personal interviewing, 67
Capano, Giliberto, 245 Concha Cantú, Hugo, 101
Carbonell, Miguel, 87 Conde, Silvia L., 156, 168
Carlos Salinas de Gortari, 91, 92, 214 Constitutional amendment, 83, 102, 142, 175,
Carmona, J. U., 179 176, 178–180, 183, 184, 188
Carlton, Dennis, 278 Constitutional Change, 8, 81, 83, 84, 87, 88,
Carothers, Thomas, 24, 59 90–92, 99–101, 103, 246
Carpizo, J., 212 Constitutionalism, 41, 84, 85
Casar, María Amparo, 87, 101 Constitutional Reforms, 8, 41, 42, 48, 87–95,
Castañeda-Gallardo, G., 267, 269 102, 129, 142, 145, 149–151, 193, 215,
Castagnola, Andrea, 129 273, 276, 277
Castilla Juárez, Karlos A., 131 Constitutions, 5, 8, 9, 11, 30, 32, 40, 41,
Castillo, Manuel Angel, 51 44–46, 48, 81–92, 94, 97, 98, 101–103,
Caulkins, Jonathan, 115 128–130, 134, 142, 145–148, 150, 151,
Cavina, Mario, 41 157, 168, 171, 176, 179–181, 185, 186,
Cejudo, Guillermo, 67 196, 211, 229, 232, 236, 237, 242, 246,
Center for Research and Teaching in 260, 274–276
Economics, 290 Consulta Mitofsky, 251, 252
Center for Studies on Teaching and Law Cooter, Robert C., 85
Learning, 176 Coppedge, Michael, 19, 33, 34
Ceobanu, Alin M., 114 Cordera, R., 211
Chacón Rojas, Orlando, 92 Correa Cabrera, Guadalupe, 136, 256
Chaihark, Hahm, 35 Corruption, 2–5, 7, 9, 11–13, 28, 39, 44, 46,
Challenge, 4, 8–11, 28, 45, 46, 48, 49, 59–62, 48–50, 54, 57, 58, 60, 62, 64–66,
84, 88, 102, 103, 118, 123, 125, 126, 68–70, 74, 82, 83, 88, 97, 102, 103, 113,
141, 142, 144, 149, 150, 152, 163, 175, 115–119, 136, 143, 159, 166, 167, 177,
176, 183, 184, 188, 193, 197, 198, 205, 195, 207, 208, 210, 215–221, 230, 233,
244, 248, 250, 258, 260, 261, 274, 276 234, 242, 250–255, 258, 260, 261, 287,
Chavez, Rebecca Bill, 20, 28, 29 290
Index 295
Cossío Barragán, José Ramón, 246 Drug legalization, 107, 119

Cossío Díaz, José Ramón, 88, 101, 129, 142, Drug market regulation, 223
246 Drug Policy Program (PPD), 223, 289, 290
Court of Justice of the Nation, 146–152, 175, Drug prohibition, 115
177, 180, 181, 271 Drugs regulation, 224, 226
Crépeau, François, 127, 138 Dunoff, Jeffrey, 127
Crime, 9–13, 20, 27, 42, 45, 49–52, 61, 62, Dworkin, Ronald, 20, 24, 26, 27
66–68, 83, 107, 110, 112–119, 131,
132, 134–137, 159, 162, 164–166, 193, E
194, 202, 203, 216–218, 230, 231, Eastwood, Niamh, 119
234–237, 241, 250, 253–256, 258, 260, Economic competition, 11, 13, 14, 47, 88,
261, 272, 289 265–270, 272–278
Criminal Justice Reform, 68, 193, 196, 201 Economic constitution, 265
Criminal Justice System, 11, 12, 47, 50, 61, 64, Economist Intelligence Unit, The, 3
66, 76, 188, 193–205 Economist, The, 3, 242, 246
Criminal Organization, 9, 111, 112, 114, 115, Elbittar, Alexander, 268
117, 118, 136, 137, 256 Elizondo, Carlos, 273, 274
Csete, Joanne, 115 Elkins, Zachary, 86, 87
Culture, 2, 41, 58, 135, 155, 166, 168–170, Elster, John, 157
175, 176, 178, 180, 185, 188, 197, 223, Enciso, Froylán, 115, 119
225, 254, 269, 277, 289 Energy Reform, 241, 244–246, 248–254,
Culture of Legality, 2, 103 258–262
Czarnota, Adam, 28 Energy Regulatory Commission, 250
Enrique Peña Nieto, 12, 91, 92, 132, 214, 218,
D 237, 242, 246
Dahl, Robert, 113 Equality, 2, 6, 21–23, 26, 34, 41, 46, 47, 126,
Dale, Roger, 125 193, 194
Dam, Kenneth W., 278 Ernesto Zedillo Ponce de León, 91, 92
Dauvergne, Catherine, 127, 128 Escamilla Salazar, J., 178
David, Paul A., 238 Esquivel, Gerardo, 87, 88, 101, 102, 229
Davis, Diane, 135 Estrada Michel, Rafael, 7, 42, 287
de la Garza, Isidro, 87, 88, 101 Etellekt, 117, 256
de la Madrid, M., 90, 194 Executive Commission for Victims Assistance,
de la Mora, Luz María, 270 45
de la Rosa, O., 178 Executive Secretariat of the National Public
Dell, Melissa, 111, 113 Security System Factor, 198
Democracy, 1–3, 7, 20, 24, 25, 28, 30–32, 34,
86, 103, 108, 110, 111, 113, 114, 117, F
119, 156–159, 164, 166, 167, 169, 194, Fallon, Richard, 20, 24
195, 208, 213, 221, 242, 250, 290 Federal Competition Commission, 14, 268–276
Democratic institutions, 83, 84 Federal Court of Administrative Justice, 46–49,
Democratic participation, 260 276
Diamond, Larry, 113, 136, 166, 169–171 Federal Institute of Competition, 46
Díaz-Cayeros, Alberto, 111 Federal Law of Economic Competition, 265,
Díaz de León, Alejandra, 135 267, 268, 270, 271, 273, 275–277
Díaz Saenz, Rodrigo, 102 Federal Prosecutor, 50, 149
Diego-Fernández, Mateo, 270, 271 Federal Telecommunication Commission, 14,
Distrito Federal Electoral Institute, 159 269, 274
Documentation Network of Migrant Advocacy Federal Telecommunications Institute, The,
Organizations, 123, 134–136 273, 274
Doering, Detmar, 278 Felipe Calderón Hinojosa, 92
Dreyfus, Jean Marc, 43 Ferejohn, John, 31, 32
Drucker, Ernest, 115 Fernandez, Kenneth E., 114
Drug cartel, 13, 111, 115, 136, 256 Ferrajoli, Luigi, 41, 146
296 Index
Ferrante, Riccardo, 41 Guarnieri, Carlo, 28, 30

Ferreira, Octavio, 256 Guerra, François-Xavier, 224, 225, 227
Fierro, Ana, 141, 144, 288 Gutiérrez Rivas, Rodrigo, 236
Fioravanti, Maurizio, 41
Fiscal disconnect, 109, 116, 118, 119 H
Fiss, Owen M., 29 Habermas, Jürgen, 20, 32
Fitzpatrick, Danielle, 271 Haggard, Stephan, 24, 210
Fix-Fierro, Héctor, 87, 88 Hamara, Courtney T., 22
Flores, Imer B., 22 Hampton, Jean., 22, 30
Foot, P., 169, 170 Hanson, G., 251
Formal legality, 20, 26, 27, 29, 32, 34, 83 Hardin, Russell, 85, 161
Foster, Michelle, 128 Hart, J., 157, 160
Fox, Edward, 119 Hayo, Bernd, 24
Freedom House, 3, 62, 242 Heinle, Kimberly, 256
Freeman, Gary P., 137 Helmke, Gretchen, 227
Free School on Law, 40, 287 Henderson, H., 181, 182
Friedmann, Wolfgang G., 20 Heredia Zubieta, Carlos, 135
Friedrich, Carl J., 84 Heritage Foundation, 62
Fukuyama, Francis, 20 Hernández, Maya, 116
Fuller, Lon L., 20, 22, 24, 33 Hernández, R., 212
Fundamental Rights, 5, 7, 39, 40, 42–48, 52, Herrera González, Vladimir, 116
57–61, 64, 65, 69, 74, 89, 97, 123, 124, Herron, Erik S., 28
128, 148, 176, 194–196, 252 Hidalgo, Fernando Daniel, 20
Himma, Kenneth E., 22
G Hoff, Karla, 24
Gallardo, Adrián, 270 Holland, Alisha C., 114
Gallie, W. E., 20, 21 Holmes, Stephen, 23, 26, 28, 98
Galindo López, Carlos, 238 Homicides, 63, 66, 67, 107, 109–113, 117,
García, Adriana, 147, 153 118, 236, 255
García Enterría, Eduardo, 145 Homologated Police Report, 201
García Sáez, J. A., 178 Howlett, Michael, 245
García, Tonatiuh, 269 Hubickey, Victoria, 114
Garibian, Sévane, 43 Human Rights, 2, 7, 9–12, 20, 32, 34, 39, 40,
Garza Onofre, J. J., 177 42–48, 50, 54, 58, 60, 61, 82, 83, 88, 89,
General Assembly, 137 103, 123, 124, 126, 128–134, 136–138,
General Population Poll, 62–64 141, 142, 144–146, 149–152, 155, 156,
Gil Botero, Enrique, 149 159, 165, 166, 168, 171, 175–188,
Ginsburg, Tom, 86–88, 129, 145, 148 194–196, 209, 223, 235–237, 287, 289
Global Commission on Drug Policy, 119 Human Rights Reform, 7, 9, 130, 149, 150
Global Compact for Safe, Orderly and Regular Huntington, Samuel P., 113, 210
Migration, 137 Hursthouse, Rosalind, 156, 169
Global Impunity Index, 4, 5, 8, 82, 216, 217, Hyper-reformism, 81, 88, 97, 103
255
Globalization, 9, 123–128, 132, 136 I
Gloppen, Siri, 28 Ibarra, Francisco, 87, 88, 101, 102, 229
Goertz, Gary, 24 Iberoamerican University, 40, 287
González Guerra, J. M., 195 Impunity, 3–5, 7–9, 12, 13, 45, 48, 50, 60, 68,
González Oropeza, M., 185 82, 83, 102, 103, 136, 165, 166, 193,
Governability, 40, 41, 54, 213 194, 196, 199, 202–205, 216, 217, 234,
Governance, 3, 40, 62, 85, 102, 124, 127, 137, 250, 252, 254, 255, 258, 261
138, 143, 215, 241, 250, 254, 289, 290 Index, 3–5, 7–9, 12, 57–70, 73–76, 82, 97,
Government of Mexico, 247 110, 111, 128, 195, 203, 216, 217, 252,
Grimm, Dieter, 84 255, 288, 289
Guajardo, Ildefonso, 275
Index 297
Indicators, 3, 7, 8, 13, 39–41, 43, 44, 46, 49, K

50, 54, 57, 58, 61–63, 76, 91, 97, 126, Kapiszewski, Diana, 29
144, 177, 195, 201–203, 252, 254, 289 Kaufmann, Daniel, 77
Individual Rights, 27, 31, 32, 34, 39, 83, 85, Kavka, Gregory S., 30
156 Kehoe, T., 251
Inequality, 2, 3, 13, 29, 111, 216, 250–253, Kelemen, Daniel R., 35, 37
255, 258, 260, 261 Kelly, Patty, 132
Insecurity, 9, 52, 107, 109, 111–115, 118, 119, Kelsen, Hans, 20, 25
197 Khan, Haroon A., 126
Insensee, Josef, 171 Kitrosser, Heidi, 141–144
Institution, 1–4, 9, 12, 13, 27, 28, 30, 42, 53, Kleinfeld, Rachel, 59, 61
54, 61, 62, 66–68, 81–86, 88, 89, Klosko, Georges, 157, 161–165
101–103, 109, 113, 118, 124, 126, 128, Knight, Alan, 228
137, 138, 145, 156, 158, 168, 169, 177, Kovic, Christine, 132
193–202, 207–211, 213–221, 223–227, Kraay, Aart, 77
238, 242, 245, 253, 254, 261, 266, 274, Krause, Krystin, 114
287, 288 Krygier, Martin, 37
Institutional capacities, 9, 131, 196, 197, 199, Kuenzi, Michele, 114
201, 204
Institutional Revolutionary Party, 211, 228, L
242 Lamarche, Gara, 169
Institution Equilibrium, 7, 27–29, 85, 156, 266 Lapsley, Irvine, 144
Instituto Federal de Telecomunicaciones, 46, La Salle University, 40, 287
274–276 Latin America and Caribbean Centre, 290
Instituto Nacional de Acceso a la Información, Latinamerican Faculty of Social Sciences, 290
46, 49, 67, 265, 275, 288 Latin University of America, 40, 287
Inter-American Court of Human Rights, 150, Lauth, Hans-Joachim, 20, 22, 25, 33
180 Law, 1–11, 13, 14, 19–34, 39–46, 48–52, 54,
Inter-American Human Rights Commission, 57–70, 73–76, 81–89, 97–103,
133, 136 107–120, 123, 124, 126–131, 135–138,
Interconnected worlds, 126 141–153, 155–157, 159–161, 164–166,
International Political Science Association, 290 168, 169, 171, 175–188, 193–197, 199,
International Transparency, 159 201, 202, 205, 216, 219, 223–229,
Irregular migration, 123, 124, 127, 128, 130, 231–233, 236–238, 242, 245, 246, 250,
134, 136, 137 252–254, 256, 258, 260, 261, 265–278,
287–290
J Law schools, 11, 175–178, 182, 183, 185–188
Jiménez Rodríguez, Paola G., 112 Lawyer, 11, 40, 47, 63, 152, 175–178, 180,
Joireman, Sandra Fullerton, 24 182–184, 186–188, 200, 237, 276, 287
Judicial Independence, 29–31, 89, 149, 153 Le Clercq, Juan Antonio, 8, 82, 83, 97, 102,
Judicial Institutions, 194 171, 255
Judiciary, 28–31, 53, 54, 60, 62, 65, 94, Legal behavior, 20, 27, 29
129–131, 137, 143, 144, 198, 199, 211, Legal education, 175–179, 183, 188, 289
213, 229, 269, 276 Legalism, 39, 40
Judiciary control, 31 Lehoucq, Fabrice, 211
Justice, 1–7, 11, 12, 21, 23, 29, 32, 34, 44–48, Lessing, Benjamin, 111, 115
50–54, 57–59, 61, 63, 64, 66, 68, 70, 73, Levitsky, Steven, 19–21, 24, 25, 29, 227
74, 76, 82, 83, 85, 89, 95, 97, 103, 111, Levy, Irene, 277
112, 128–130, 132, 134, 138, 146, 147, Lindblom, Charles E., 265
149, 152, 153, 166, 188, 193–205, Lockhart, Sarah, 137
216–219, 229, 233, 237, 242, 252, 254, London School of Economics and Political
261, 266, 270–272, 276, 278, 288–290 Science, 119, 285, 290
298 Index
López-Noriega, Saul, 147, 153 Mexican Political System, 9, 209–211, 220,

Lovett, Frank, 20, 24 221
Lowndes, Vivien, 158 Mexican Presidentialism, 87
Lyons, David, 160 Meyer, John W., 125
Migration, 2, 9, 10, 123, 124, 127, 128,
M 130–138, 289, 291
Maciuceanu, Andra Olivia, 20 Mill, John Stuart, 165
MacIntyre, Andrew, 24 Ministry of National Affairs, 4, 132, 133, 168
Mackie, J. L., 164 Ministry of Public Function, 48
Madrazo, Alejandro, 235–237 Mirilovic, Nikola, 137
Madrazo, Jorge, 102 Miron, Jeffrey A., 115
Magaloni, Ana, 152, 178 Modern State, 1, 225
Magaloni, Beatriz, 113, 114 Molinar Horcasitas, Juan, 211
Mahon, James E., 19, 21, 24, 25 Møller, Jørgen, 19–21, 24–26, 31, 34
Manin, Bernard, 31 Money, Jeannette, 137
Maqueo, María Solange, 13, 265 Monterrey Institute of Technology and Higher
Maravall, José María, 20, 27, 28, 30 Education, 40, 287
March, James G., 158 Moral, 10, 26, 27, 40, 155–157, 159–161, 165,
Mariscal, Elisa, 268 166, 168, 170, 287
Mariscal, Judith, 268 Morales, Víctor, 168
Market regulation, 2, 223, 267 Moral obligation, 10, 156, 157, 159–161, 165,
Market system, 265 166, 170
Martínez, C., 178, 183, 187 Morsi, Z., 149
Martínez, Jorge, 168 Motta, Massimo, 266, 267
Martin Reyes, Javier, 87 Mudde, Cas, 20
Martin, Susan, 136 Mulgan, Richard, 143
Mastruzzi, Massimo, 77 Munck, Gerardo L., 20
Marván, Ignacio, 87, 101 Murillo, Stefana, 158
Matanock, A., 114
May, Rachel A., 124, 139 N
McAllister, William B., 119 Nacif, Benito, 211
McCubbins, Mathew D., 145 Narváez Medécigo, Alfredo, 129
McElwain, K. M., 116 National Action Party, 13, 113, 141, 210, 214,
McNamara, Francis, 114 242, 244, 245, 249, 262
Measurement, 2, 6–8, 24, 25, 39, 40, 51, National Anti-corruption System, 12, 52,
59–62, 64, 69, 73, 76, 166, 197, 199 208–210, 216–221
Medellín, Ximena, 152 National Autonomous University of Mexico,
Medema, Steven G., 267 40, 141, 223, 287–290
Melone, Albert P., 28 National Census of Local Prosecution Offices,
Melton, James, 86–88 201, 202
Mena, Carlos, 280 National Center for Energy Control, 250
Méndez, Francisco, 102 National Center for Natural Gas Control, 250
Méndez, Juan E., 29 National Commission for Human Rights, 43,
Méndez, Laura, 280 45
Mercuro, Nicholas, 267 National Council Against Discrimination, 159,
Merryman, John Henry, 36 168
Metropolitan Autonomous University, 40, 287 National Council on the Evaluation of Social
Mexican Constitution, 8, 9, 11, 41, 81–84, Development Policy, 251
86–90, 97, 103, 146, 147, 150, 157, National Electoral Institute, 168
176, 179, 180, 196, 242, 246, 275 National Hydrocarbons Commission, 250, 251
Mexican Council on Administration of the National Institute for Educational Evaluation,
Federal Judicial Branch, 48, 49, 52, 53 167, 168
Mexican Petroleum, 246, 247, 250, 256, 257 National Institute for Statistics and Geography,
Mexican Petroleum Fund, 247, 250 67, 109, 117, 159, 177, 201–203, 216
Index 299
National Institute of Criminal Sciences, 40, 287 Paz, Octavio, 209

National Institute of Migration, 131, 134 Peces-Barba, G., 187
National Regeneration Movement, 153, 241, Peeremboom, Randall, 20
244, 245, 249, 252, 254, 259–261 Pérez Correa, Catalina, 236
National Security, 39, 45, 50, 131, 135, 137, Pérez Hurtado, L. F., 177
161, 163, 255 Pérez, Orlando J., 114
National System of Researchers, 289 Pettigrove, Glen, 156, 169
National Victimization Survey, 67, 114, 117, Phillips, Brian J., 111
194 Picker, Randal C., 278
Negretto, Gabriel, 211 Pierson, Paul, 226, 227, 244
Neild, Rachel, 135 Pinheiro, Paulo Sergio, 29
Nijman, Janne Elisabeth, 127 Pinto, M., 181
Nohlen Dieter, 145 Poiré, Alejandro, 116
Nonet, Philippe, 23 Political pluralism, 9, 111
North American Free Trade Agreement, 243, Ponce, Alejandro, 57, 58, 62, 156, 289
259, 268 Pontifical University of Mexico, 40, 288
North, Douglas C., 1, 85, 108, 225, 232 Pou Giménez, Francisca, 87, 88
Novoa, M., 11, 194, 196, 288 Poverty, 13, 58, 111, 113, 242, 250–253, 255,
Nozick, Robert, 157, 161–163 258, 260, 261
Nuevo León Autonomous University, 287 Pozas-Loyo, Andrea, 129
Nully trial, 141, 142, 146, 147 Presidentialism, 87, 234
Núñez, Javier, 274, 277 Principle of Fairness, 10, 155, 157, 160–163,
165
O Pro persona principle, 48, 180–182
O’Donnell, Guillermo, 143 Przeworski, Adam, 20, 27, 28, 30
Okeowo, Alexis, 252 Public affairs, 10, 86, 155–160, 162, 165–167
Olsen, Johan P., 158 Public goods, 2, 10, 40, 85, 86, 160–165
Olson, Mancur, 160, 208 Public policy, 13, 14, 60, 89, 102, 141, 155,
Olsson, O., 24 169, 196, 197, 199, 223, 229, 241,
Open government, 4, 5, 7, 57, 58, 65, 67, 74, 244–247, 249, 252, 254, 260, 285, 288,
97, 195, 252 289
Operation Condor, 233 Putnam, Robert D., 164, 169–171
Opium, 230, 232, 233
Oralia, Sandra, 116 Q
Organisation for Economic Co-operation and Quah, Danny, 115
Development, 68 Qualified Respondent’s Questionnaires, 63
Organized crime, 13, 45, 51, 113, 117, 118, Quintana, Karla, 152
132, 135, 137, 216, 218, 234, 236, 237,
241, 250, 254, 256, 258, 260, 289 R
Orkeny, Antan, 28 Radilla Pacheco Case, 180
Ortiz, Jorge, 212, 217 Ramírez, Telésforo, 138
Osorio, Javier, 111, 113, 115 Rawls, John, 162, 170
Otsuka, Michael, 157, 161–163 Raz, Joseph, 7, 20, 22, 24, 26, 34
Outcomes, 57, 59, 61, 62, 68, 73, 144, 151, Reciprocity, 155, 169–171, 227, 229, 233, 235
166, 204, 214, 245, 287 Reform, 3, 7–9, 11–14, 41–48, 52, 53, 68,
81–96, 102, 129–132, 135, 142, 145,
P 149–151, 166, 175, 176, 179, 188, 193,
Pact for Mexico, 215, 242, 246, 273 194, 196, 197, 199, 202–205, 207, 208,
Paffenholz, Thania, 135 210, 213–218, 220, 221, 232, 234, 236,
Panamerican University, 40, 287 237, 241, 242, 244–253, 258–262, 265,
Parker, Geoffrey, 125 267, 268, 270–277, 287
Pasquino, Pasquale, 31, 32 Regulation, 2, 12, 40, 45, 61, 66, 119, 127,
Pavón-Villamayor, Víctor, 271 131, 176, 212, 223, 224, 226, 230, 231,
Payan, Tony, 13, 256 266, 267, 269, 270, 276, 287
300 Index
Reich, Rob, 169 Sarabia, Heiddy, 132

Resa Nestares, Carlos, 232 Sarsfield, Rodolfo, 6, 7, 24, 156, 266, 290
Research Center for Development, 197, 276 Sartori, Giovanni, 6, 21, 24, 25, 33, 34, 85
Restrepo, Pascual, 115 Sassen, Saskia, 125
Reychler, Luc, 135 Scanlon, T. M., 162
Reynolds, Noel B., 26 Schaffer, Frederic Charles, 24
Ribeiro, Ludmila, 114 Schedler, Andreas, 22, 24, 143
Riggs, Fred Warren, 24 Scheppele, Kim Lane, 28
Ríos-Figueroa, Julio, 24, 29, 129 Schwartz, Herman, 28
Ríos, Viridiana, 102, 111, 113 Schwartz, Thomas, 154
Rivera León, Mauro Arturo, 87 Security, 3–5, 7, 9, 13, 39, 44, 45, 50, 51, 57,
Roberts, Mark, 158 58, 60, 61, 65, 67, 69, 74, 82, 83, 95, 97,
Robinson, James A., 62, 228 103, 108–110, 113, 114, 116–119, 128,
Robles, Gustavo, 114 131, 132, 135, 137, 159–163, 166, 171,
Rodríguez, Daniel, 77 193–198, 201, 209, 215, 223, 234, 236,
Rodríguez, Gerardo, 8, 82, 83, 97, 255 237, 241, 251, 252, 254–256, 258, 266,
Roldán, José, 280 287, 289, 290
Role of Constitution, 84, 101 Security crisis, 3, 9, 108–110
Román, Eduardo, xiii, 11, 175–190, 278 Sehring, Jenniver, 25
Romero Gudiño, Alejandro, 50 Self-defense groups, 236
Romero Vadillo, Jorge Javier, 235, 236, 289 Seligson, Mitchell A., 168
Romero, Vidal, 9, 13, 290 Selznick, Philip, 23
Rose-Ackerman, Susan, 37 Sender, Ramón J., 230
Ros, Jaime, 210 Serna, José María, 87–89, 92, 101
Rosmarin, Ari, 119 Shapiro, Ian, 22, 30
Rotberg, Robert, 40 Shapiro, Martin, 37
Rovira, Cristóbal Rovira, 20 Shirk, David A., 256
Rubio, Luis, 244, 259 Shon, D. A., 144, 153
Ruiz, Eugenio, 278 Silva Forné, Carlos, 236
Rule by law, 25–27, 29, 31, 34, 61 Silva-Herzog, Jesús, 88
Rule of law, 1–11, 13, 14, 19–34, 39–41, 43, Silva Mora, K., 194, 196
45, 46, 48, 50, 54, 57–65, 67, 69, 70, 73, Skaaning, Svend-Erik, 19–21, 24–27, 30–34,
74, 76, 81–87, 89, 97–103, 107–120, 84
123, 124, 126–129, 138, 141–145, 148, Smith, Peter, 212
149, 151–153, 155–157, 159–161, Soberanes, José M, 152
164–166, 168, 169, 171, 177, 193–197, Social Contract, 1, 2, 86
205, 223, 229, 233, 236, 242, 245, 250, Society, 1, 6, 9, 10, 12, 20, 22, 23, 27–29, 41,
252–254, 256, 258, 260, 261, 265–267, 58, 60–62, 65, 81, 82, 86, 98, 101, 103,
278, 288–290 108, 112, 113, 118, 123, 126, 134, 137,
Rule of law deficit, 97 138, 153, 155, 156, 164, 166–169, 171,
Rule of Law Index (RLI), 4, 5, 7–9, 57–65, 67, 194, 195, 209, 216, 217, 220, 225, 228,
69, 70, 73, 74, 76, 82, 97–100, 110, 111, 229, 231, 256, 261, 267, 269, 277
128, 195, 288, 289 Society for Community Research and Action,
Rule of men, 21, 22 144, 153
Solís, Patricio, 156, 159
S Sovereignty, 9, 20, 32, 34, 123–128, 131, 136,
Sadowski, Christine M., 169 137
Salazar Ugarte, Pedro, 87 Sowell, Thomas, 21
Samuels, Warren J., 267 State liability trial, 141, 142, 146, 148, 149,
Sánchez-Cuenca, Ignacio, 27 153
Sandel, Michael, 155 Staton, Jeffrey K., 24, 29
Sandholtz, Wayne, 24 Stein, Robert, 126
Santiso, Carlos, 210 Stiglitz, Joseph E., 24
Index 301
Stotzky, Irwin P., 29 Valdés Ugalde, Francisco, 101

Structural reforms, 3, 11, 52, 207, 213, 220, Vaño Vicedo, R., 178
242, 244–246, 253, 258, 261, 265, 273, Velasco Rivera, Mariana, 87
275 Velázquez Flores, Rafael, 135
Subcommittee on Prevention of Torture and Vera Institute of Justice, 77
other Cruel Inhuman or Degrading Verkuilen, Jay, 20
Treatment or Punishment, 134 Versteeg, Vera, 77
Sunstein, Cass R., 23, 85, 98 Vice, Margaret, 251
Superior Federal Audit, 48–50 Vicente Fox Quezada, 91, 92
Supervisory Units for Precautionary Measures, Vile, M. J., 31
201 Villegas, P., 195
Surveys, 4, 8, 25, 62–64, 67–69, 114, 117, 155, Violence, 9, 20, 27, 28, 40, 42, 51, 52, 60, 62,
194, 216, 290 66, 107, 110, 111, 113–115, 118–120,
132, 134–136, 194, 210, 216, 224–228,
T 232, 233, 235, 236, 238, 253, 255, 256,
Taagepera, Rein, 24 258, 261
Tamanaha, Brian, 21, 22, 24–27, 31, 32, 34 Voigt, Stefan, 24
Tamir, Moustafa, 145, 148
Tatar, María, 77 W
Tavilla, Elio, 41 Waldron, Jeremy, 2, 20, 23, 24, 85
Taylor, Matthew M., 29 Wall, Steven, 165
Teaching, 40, 176–179, 183, 184, 186–188, Waluchow, W. J., 22
265, 281, 287, 288, 290 War on drugs, 12, 107–109, 113, 115, 116,
Technical Secretariat for the Implementation of 223, 233, 236, 238
the Criminal Justice Reform, 197 Webb, S., 210
Tello, C., 211 Weingast, Barry R., 85, 108, 116, 120, 225
Tena, Felipe, 146 Weldon, Jeffrey, 211
Teune, Henry, 24 Werner, Wouter, 127
Thornton, Mark, 115 Western, Shaina, 137
Tiede, Lydia, 24 Weyland, Kurt, 20, 33
Transit country, 45, 130, 132, 133, 135, 138, Whittington, Keith E., 35, 37
233 Wilson, Carter A., 245
Transparency International, 3, 60, 216, 242, Winecki, Jan, 222
252, 253 Winston, Kenneth I., 33
Trejo, Guillermo, 236 Witker, Jorge, 280
Trejo, Ricardo, 278 Wood, Charles H., 114
Wood, Duncan, 102
U World Bank, 3, 57, 58, 62, 68, 243, 288–290
Uildriks, Niels, 135 World Justice Project, The, 3–5, 7–9, 57–65,
Ungar, Mark, 29 67, 68, 73, 76, 111, 166, 195, 288, 289
United Nations, 10, 134 World Value Survey, 155, 159, 167
United Nations Development Programme, 63 Worldwide Governance Indicators, 62
United Nations Human Rights Council, 137
United Nations Office on Drugs and Crime, Y
112, 119, 236 Yankelevich, Pablo, 130
United Nations Security Council, 77
University of Salamanca, 40, 287 Z
University of the Americas Puebla, 194, 216, Zagrebelsky, Gustavo, 41
281 Zavala, Dirk, 148, 149
Zepeda Gil, Raúl, 111
V Zepeda Lecuona, Guillermo, 112
Valadés, Diego, 40, 41, 54, 87, 88 Zwiebel, Jeffrey, 115
Valdés Castellanos, Guillermo, 115

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Juan Antonio Le Clercq

Jose Pablo Abreu Sacramento Editors

Jose Pablo Abreu Sacramento

Rebuilding the State

More on this book is at: http://afes-press-books.de/html/SA_05.htm.

ISBN 978-3-030-31313-5 ISBN 978-3-030-31314-2 (eBook)

Mexico City, Mexico Dr. José Ramón Cossío Díaz

Cholula, Puebla, Mexico Dr. Juan Antonio Le Clercq

1 Introduction: Understanding the Lack of Rule of Law

Part I The Concept of Rule of Law and Its Measurement

Part II Explaining the Fragility of the Rule of Law in Mexico

9 Citizenry, Civic Education and Rule of Law . . . . . . . . . . . . . . . . . . 155

Part III Structural Reforms and Their Implementation Challenges

Universidad de las Américas Puebla (UDLAP) . . . . . . . . . . . . . . . . . . . . . 281

Jose Pablo Abreu Sacramento Department of Law, Tecnológico de Monterrey,

Jorge Javier Romero Department of Politics and Culture, Universidad Autónoma

ACHR American Convention of Human Rights

COFECE Federal Competition Commission (Comisión Federal de

LACC Latin America and Caribbean Centre

UIA Iberoamerican University (Universidad Iberoamericana)

Juan Antonio Le Clercq, Jose Pablo Abreu Sacramento

1.1 The Complex Development of the Rule of Law

© Springer Nature Switzerland AG 2020 1

Table 1.1 World Justice Subfactor Factor

Table 1.2 WJP Rule of Law Factor Factor score

Table 1.3 WJP Rule of Law Factor Factor score

Table 1.4 Global Impunity Position/Number of countries Score

1.2 Understanding the Proposal of Rebuilding the State

implementation of the law. Audits by the National Institute of Migration had

The Economist Intelligence Unit (2018). Democracy Index; at: http://www.eiu.com/topic.aspx?topic=

Rodolfo Sarsﬁeld is an Associate Professor at the Autonomous University of Querétaro. His

© Springer Nature Switzerland AG 2020 19

2.2 What is Not the Rule of Law?

2.2.1 Rule of Law, Not of Men

2.2.2 Equality Before the Law, Not Special Interest Law

2.3 What Is the Rule of Law? Contesting Deﬁnitions

Several contesting deﬁnitions of the rule of law characterize the literature in

measurement validity” (Adcock/Collier 2001: 529–532). As Giovanni Sartori

2.3.1 Rule of Law, Rule by Law, and Formal Legality

2.3.2 Rule of Law, Legal Behavior, and Institutional

institutions cannot be distinguished from the effects of powerful actors” (Maravall/

context of Latin American ultrapresidentialism, judges should have the capacity to

2.3.3 Rule of Law, Judicial Independence, and the System

Some scholars have highlighted the presence of an autonomous judiciary as a

2.3.4 Rule of Law, Democracy, and Individual Rights

government by the people or their representative, elected on a broad franchise”.

comprehensive laws; no contradictory or inconsistent laws; no law should be

Guarnieri, C. (2003). “Courts as an Instrument of Horizontal Accountability. The Case of Latin

Rafael Estrada Michel

© Springer Nature Switzerland AG 2020 39

Keywords Constitutionalism ! Governability ! Human rights ! Indicators !

3.1 Introduction: From Traditional Legalism to the Rule

Thucydides spoke of the crisis of stasis, of paralysis, of lack of constitutional

3.2 Human Rights Compliance Indicators

The active promotion of the aforementioned constitutional reform, as well as the

When a public authority refuses to accept the recommendations issued by the

ERLHR = Effective Rule of Law in terms of respect for Human Rights

3.3 Administrative Justice Indicators

3.4 Formulas for Indicators in Criminal Matters Against