December 20, 2023

Sociology

Boaventura de Sousa Santos

The study developed within the scope of this thesis, affiliated to the sociology of law, fits into the vast field of sociological studies on law, justice systems, courts, and the administration of justice. It is based on two main theoretical assumptions: the prominence of courts in contemporary societies and the globalization of the reform of legal and judicial systems. Today, societies, although with different nuances and intensities, give courts a relevant social and political role, either as organs of social control and conflict resolution, of protection of fundamental rights, freedoms and guarantees, as instruments of creation of a stable and legally secure environment which facilitates economic exchanges and financial investment, or, also, as organs of monitoring and control of governmental action. The social and political prominence of courts, exacerbated in a time of strong media coverage, also exposes them to public scrutiny and criticism.

From the 1990s onwards, one of the strong consensuses about courts in many countries was that they were too slow and bureaucratic. In response to this diagnosis, the reform agenda strategically focused on the search for greater speed and more efficiency in justice. The concern with quality arrived later and was also more diffuse. Even less pressing, but more complex, is the concern with creating the conditions for courts to play a relevant, democratically progressive, role in social transformation, in the protection of human rights and in the response to social vulnerabilities. The reconfiguration of the social and political role of courts and of the terms on which courts can play that role depends on a number of factors, from the dominant legal culture to the economic development of the country. But there is a strong correlation between justice reforms and the profile of the functional performance of courts.

The object of the research work carried out was to study the political agendas and the reforms of justice in Portugal, including the process of construction and development of these reforms. I devote special attention to the reforms of the judicial map and organization, as a structural axis of the organization and performance of the judicial system, and the training of judges and Public Prosecutors, as a crucial reform for the democratic transformation of judicial culture and for the creation of a more virtuous relationship between courts and citizenship. I analyze the dynamics of the political power and of the judicial power (co-responsible to the extent of its competences for the process of implementing reforms) in the strategic orientation, solutions, and development of reforms. The aim is to assess whether they reflect democratically transformative innovations in the justice system, in particular, in the legal and judicial culture and in the socio-political profile of the courts. In other words, whether the justice reforms seek a rupture from the structural and functional models of a technocratic nature and pursues innovation that enhances the efficiency and speed of justice and its democratic transformation. Or, on the contrary, if those reforms pursue an incremental process, reproducing the culture and judicial practices, which serves the purposes of political domination of a neo-liberal nature, accommodating justice in a role of normalizing social control, calming conflicts and stabilizing legal security, and less in terms of social transformation.

With this study, I seek to produce a broad and articulated analysis, relevant to scientific knowledge in the field of sociology of law and to the development of structural reforms for a justice system that responds with quality and in a socially appropriate timeframe to the demand for judicial protection, that pays special attention to citizenship, creating a more inclusive justice system, and that enables the creation of a democratic and structural (and not occasional) judicial activism in the fight against serious crime, especially against corruption, and in the protection of human rights and social and economic rights. In other words, I hope to contribute to the construction of a democratic justice in Portuguese society.

Keywords: sociology of law, democratic reforms of justice, courts, judicial map and training of judges and public prosecutors