Eternal Formalism: about the Judicial Reform in Mexico

[...] el Estado siente como esencial el problema de la selección de los jueces; porque sabe que les confía un poder mortífero que, mal empleado, puede convertir en justa la injusticia, obligar a la majestad de las leyes a hacerse paladín de la sinrazón e imprimir indeleblemente sobre la cándida inocencia el estigma sangriento que la confundirá para siempre con el delito. Calamandrei, P. (2009) Elogio de los jueces escrito por un abogado, España: Editorial Góngora y Editorial Reus, p. 34.

I. INTRODUCTION

Similar like what occurs in other Latin American states, Mexico remains a country where legal education and practice have not managed to overcome legal formalism. This implies that theoretical proposals —such as theories of argumentation and legal interpretation—remain overshadowed by a tradition anchored in the past; in a system that, despite incorporating a human rights model into its constitution, still pursues ideals from the early 20th century guarantee system.

Luhmann, for instance, notes that "theories emerging from practice are rather a collateral product of the need for solid decision-making". Therefore, there remains ample room for other types of issues that are not immediately visible.

Consequently, legal education in Mexico is almost disconnected from legal reality, as it is not possible to reconcile two foreign paradigms. Gény, for example, expressed concern about the blind faith that some jurists had in formalism:

Dominated, fascinated by the results of codification, modern French commentators, implicitly at least, have accepted as a postulate the idea that formal legislation, i.e., the body of legislative acts promulgated and in force in France, should suffice to reveal all the legal rules needed in the field of private law for the needs of social life.

In this context, Mexico continues to rely on formalism as a solution to all the legal difficulties that arise in Mexican society, and at the same time, as a magic wand that dissipates the complexities of paradigm incommensurability highlighted by Kuhn, because nothing can't chance without changing the way of thinking.

Thus, although Mexico has made several reforms to its justice system in the past twenty years, these changes have not produced the expected effect, especially when analyzing how the judicial function unfolds, which remains mired in a whirlwind of complexities that cannot be resolved merely by creating or modifying laws.

This is also the main reason why the federal executive deemed it appropriate for the judiciary to gain legitimacy through a model of selecting judges, magistrates, and ministers via popular vote. However, this proposal does not sufficiently address the problems generated by formalism, as changing the selection model for judges will not make the judicial system more reliable or effective.

Primarily, because the reform project omits a substantial element, such as the judicial career, which has been persistently neglected: in Mexico, there are no institutions that teach how to become a judge. Thus, formation (Bildung) becomes an indispensable element for understanding legal problems differently as they develop in legal practice, but at one that can make it go beyond from instrumental knowledge.

This paper will analyze, from a hermeneutic perspective, why investing in a formation model is a preferable option to strengthen the judiciary at all levels, since this critical issue for the administration of justice is ignored and forgotten by those who naively believe that merely changing to direct voting for judges, magistrates, and ministers will development a better justice system. Thus, the original measure does not overcome the issues related to legal formalism, which is why the same cycle of change without change persists and the formalism become eternal.

II. HOW HAVE JUDGES LOST LEGITIMACY IN MEXICO?

Fundamentally, if the issue with the proposed constitutional reform to the judiciary focuses on the legitimacy of judges, the first question should be why trust in Mexican judges has eroded and how it can be restored.

Generally, the judiciary is not often criticized by civil society, as its work is largely unknown to citizens. However, with the change in government in 2018, «the public life of the Mexican state has become more public». Today, for instance, Mexican society is more attentive to the political environment, leading citizens to learn about and become aware of constitutional reform projects and the legal process for their approval or rejection through judicial review by the Supreme Court of Justice of the Nation (SCJN), which functions as a constitutional court.

Another relevant aspect was when, less than a month into the new federal executive's term, Mexican society learned about the high incomes of the SCJN ministers —a surprising issue considering that, until 2018, the Mexican state had over 51,890,000 people living in poverty, according to data from the National Institute of Statistics and Geography (INEGI). This situation does not align well with one of the current federal executive's main policies, which is austerity, as:

«there cannot be a rich government with a poor people».

From then on, public scrutiny began to monitor the actions of the federal judiciary, especially those of the SCJN, which intensified following the change in presidency at the court, with Norma Lucía Piña Hernández assuming office and remaining distant from executive's and legislative's dialogues —a setback compared to the previous president, and former minister of the highest court, Arturo Zaldívar Lelo de Larrea, who had engaged with the federal executive to initiate dialogue aimed at reforming the federal judiciary, resulting in a new judicial reform in 2022 about judicial career.

However, despite increased public involvement in recent years, it appears that citizen demands align with the federal executive's rhetoric, which has not recognized that changing the model for selecting judges, magistrates, and ministers does not necessarily legitimize or strengthen the justice system. Also, ignores the reasons about why it is important the formation in judges, due they need to obey the Law not what they desire or politics demand. This is a matter that requires deeper examination.

Thus, it is not clear how judges elected by popular vote will necessarily improve justice delivery rates, nor how potential issues of politicization of justice can be avoided. This would mean that judges follow patterns aligned with public interest, so their decisions do not address the substance of issues but respond to majority demands, even if those demands are against the constitution.

For example, judicial independence would not be questioned in cases where judges do not decide according to majority interests, as it is now, but rather there would be more opportunities for dialogue and understanding of the judicial function. Therefore, attention should be focused on the problems generated by legal formalism, whose tradition is deeply embedded in judges' understanding.

Detailing why legal formalism remains prevalent in Mexico is a Herculean task. However, some important data is useful: 1. In Mexico, there is no specialized preparation for judges, prosecutors, or other legal professions; universities predominantly offer a single perspective for understanding, analyzing, thinking about, and applying the law, which is that of the lawyer; 2. The judiciary still believes that analytical capacity for performing judicial functions is an innate trait rather than the result of proper formation, which is why the judicial career is understood as a hierarchical system; 3. Notable formalistic factors in judicial practice are expressed in rulings, case law, and even in judicial dissemination methods; 4. There is a constant rejection of non-positivist legal models, especially interpretative ones, as it is still believed that legal bodies must be closed and written in a Cartesian style of clarity and distinction, leaving no room for interpretation.

Therefore, the focus of interest regarding the illegitimacy of judges should not be how they are elected, but rather how judges understand and apply the law.

III. PROBLEMS IN LEGAL EDUCATION IN MEXICO

All the above necessarily leads to considering how legal education in Mexico is structured and what its problems are. It is well known that, since the second half of the 20th century, the field of law has undergone various substantial changes, both in its static and dynamic aspects. However, it is no secret that the conception of law remains a set of legal norms where knowledge of current law is the only differentiator.

Professional legal studies in most of our law schools or faculties follow general curricula that provide graduates with a panoramic view. However, it must be acknowledged that they do not include specific training for different legal activities such as judiciary roles, public prosecution, notary work, etc.

Thus, for legal education, what truly matters is what the code says, primarily; secondarily, as one progresses, there is a slight shift towards studying case law, which is primarily of interest to lawyers and judges. In Mexico, for instance, jurisprudence from the SCJN —that is, what is said about this or that in the courts— and in significant political contexts, extends to international courts such as the Inter-American Court of Human Rights (CIDH).

In summary, studying and teaching law, in a certain way, is limited to presenting the essence of law, as some important authors, including Calsamiglia, assert. Therefore, the idea that "it seems everything has already been said", as Atienza Rodríguez and Ruiz Manero claim, resonates in legal education. Despite new proposals —such as the approach of law as argumentation—the foundation remains the legal theory from before the second half of the 20th century, which is disconnected from current legal reality.

Consider the paradigm shift from a system of guarantees to a system of fundamental rights established by the constitutional state. Or consider the non-positivist legal theories that have sought to give moral considerations more prominence in the legal world. Thus, Larenz's words: «no one can seriously claim that the application of legal norms is merely a logical subsumption under abstractly formulated major premises» are not definitive. Rather, they still contain mysteries.

Therefore, upon closer examination, it becomes evident that things are entirely different if the issue is no longer about why but about how, as legal positivism has been in crisis for over 70 years and seems unlikely to change soon, even despite the breakdown of some mechanisms that project the inclusion of principles such as pro homine, since the old tradition of Gesetz als Gesetz («the law is the law») still prevails.

For one reason or another, judges in Mexico believe they can «discover» the answers to all legal problems in a manner reminiscent of Shakespeare's The Merchant of Venice. However, very few recognize the consequences of the mechanistic application of law.

If one wishes to contradict this assertion, it opens the door to revealing another major problem in legal education—which reinforces the initial argument—as it would not be a fallacy but a sophism. Law faculties lack an approach to Hermeneutics; rather, there is an irrational fear of what lies beyond literal interpretation. The same can be said about knowledge of Logic and Argumentation.

It is clear that specialized training is required to know where to look and how to understand the arcane vocabulary with which decisions are written. The layperson does not possess this training or vocabulary, but lawyers do, and therefore, no controversy exists between them regarding whether the law provides compensation for injuries caused by a colleague, for example.

Thus, the difference does not lie in the ability to interpret, argue, or use technical knowledge to decipher the vocabulary of judicial rulings or apply a different logic from formal logic, such as deontic logic or another divergent logic. It lies in the knowledge of the legal system.

Formal legal studies typically begin at the university level, and only after a doctoral degree does one achieve rigor in their knowledge, meaning that law is understood not just as a norm but as something much more. One might ask: is it necessary to wait so long?

Ignoring that law is more than just a norm leads to several significant problems, as law influences people and can transform them to varying degrees.

The way judges decide cases is important. It matters more to those who are unlucky, litigious, or merely in court because they are considered too saintly or otherwise. Learned Hand, one of the best and most famous American judges, said he feared a trial more than death or taxes. The difference between dignity and ruin can turn an argument that might not have struck another judge with the same force, or even the same judge on another day. People can gain or lose more from a judge's assent than from any act of Congress or Parliament.

As Atienza Rodríguez mentions, formalism is not the only affliction affecting the law—that is, those who interpret and apply it "but it is perhaps the most pernicious in Latin countries due to its endemic nature in our legal culture". This implies that it is also a problem related to education since it reflects "a way of understanding the law in which the judge feels bound only by the text of the current legal norms, and not also by the reasons underlying them".

Therefore, diagnoses like Dworkin's are not a reality in Latin countries since "a formalistic resolution is often written in a way that an educated reader, even a legal professional, does not understand or at least does not easily understand". Consequently, the use of obscure and evasive language is a daily characteristic of legal formalism.

In conclusion, if a genuine change in the justice system in Mexico is desired, efforts should be focused on deeper issues than those mentioned in the proposed constitutional reform of the federal judiciary. And to start, what could be better than addressing the issue of legal education.

IV. ANALYTICAL CAPACITY: SOME IRONIES OF THE JUDICIAL CAREER

For years, the topic of a judicial career has been quite frequent, but progress has been very slow. Del Río Govea noted that "[...] it has not yet been fully achieved that judges are appointed according to rules that demonstrate their legal capacity, their moral character, honesty, good conduct, and, most importantly, their knowledge to apply the Law [...]". However, similar to Flores García, his intention was not to have the formation as a model for teaching how to become a judge, but rather as "[...] the idea of a transition through stages or progressive steps [...]". To be a judge, it is essential to learn how to be one. However, this is not achieved with the premise that judges are lawyers who have chosen to dedicate themselves to the judiciary.

Vázquez Esquivel has insisted that the ethos of jurists differs significantly between their professions. He also points out that among lawyers and judges, there are antagonistic values that, in theory, can be understood quite well, but in practice seem to cloud everyone's judgment.

Therefore, the starting point should not be to discuss the different mechanisms for selecting judges or the various possible filters for entering and advancing in the judicial career. Instead, focus should be placed on defining the peculiarities of judicial function, that is, its ethos. Of course, instrumental knowledge in the training of a judge is important, but this distances the factor of what is desirable in the judicial function, turning it into an irony.

Moreover, it is legitimate to question who should be entrusted with the role of judge. This is mainly because SCJN ministers are not necessarily individuals with extensive experience in administering justice or necessarily the best at doing so, as the current selection model is based on a ternary model proposed by the federal executive and must be approved by the state. This has historically resulted in ministers with great ability but also others lacking in it. Therefore, it becomes ironic that the highest court is not composed of the best judges in the country, as they are detached from the hierarchical scheme of the judicial career in Mexico.

This issue recalls what Podetti once stated about the judicial career: "to enter the judiciary and undertake the difficult and august mission of 'administering justice', one only needs [...] to obtain a qualifying university degree and have a friendship with some influential political leader". This is technically equivalent to the requirement of the current Mexican federal constitution.

Additionally, it is noteworthy that one of the main concerns of the current judges, magistrates, and ministers of the federal judiciary is that the competitive exams proposed by the reform initiative might fall to a secondary level, as two-thirds of the candidates depend on the executive and legislative branches. However, as Caballero Juárez points out: "[...] to compete to become a judge, it seems that what is required is precisely not having judgment". This is because the opposition exam questionnaires generally consist of questions derived from contradictions in rulings issued by the SCJN, so instead of respecting the analytical capacity of the candidate, what is demanded is memorization. Another irony, since the concept of objectivity is interpreted incorrectly and, at the same time, the independence supposedly defended is restricted.

Worse still, these ironic issues go unnoticed by current judicial officials and become apparent when it is claimed that "popularly elected judges will hardly possess this knowledge", meaning knowing recent jurisprudence, with the argument that there would be a lack of certainty, but also turn out that jurisprudence is above the Law, which it is a major issue.

Another irony is that the judicial career pyramid is «inverted», that means that there are more problems without a solution despite those who are not interested to growth. As Caballero Juárez holds:

[...] it is assumed that in a healthy Judiciary, the idea of development and growth in the judicial career is: starting from the bottom and gradually moving up, but theoretically, there should be more judicial clerks than secretaries, more secretaries than judges, and more judges than magistrates. But here, this does not occur; this is a problem even of politics and management of the Judiciary, and I do not see that it was considered when it was decided [...].

Finally, these ironies cause legal formalism to be more palpable, as there are visible remnants in judicial practice, which, as Atienza understands well, in such a situation: "[...] there would be no rule of law, simply because the rule of law would have become the rule or government of judges".

V. FORMALIST VESTIGES IN JUDICIAL PRACTICE

A first sign is found in judicial rulings, as it is neither accidental nor uncommon for judicial decisions to be written in a convoluted legal language, which, in many cases, is even unintelligible to legal professionals. This is a common characteristic of formalism, meaning that judicial resolutions are not fully understood. For example, this has led to the practice of discussing a motion to clarify a judgment, a legal figure that was not contemplated by the relevant law until 2013. Therefore, the existence of such a legal figure, precisely, is indicative of legal formalism.

Another sign consists of the constant defense of legal certainty or due process. These issues are highly noticeable in the analysis document of the constitutional reform initiative on the federal judiciary with the SCJN's seal. In this sense, it seems very unlikely that a citizen would prefer the certainty of being judged according to the jurisprudence criteria issued by the SCJN over being judged in a fair manner.

A third sign is related to procedural elements. It is also not accidental that judicial resolutions often focus more on the form of the process than on the substance. Therefore, within the Mexican legal community, there is a motto that the primary function of an amparo judge is to «find reasons for its inadmissibility» before the principal matter.

As a fourth sign, the logical rigor as the sole reliable source of reasoning appears, overshadowing other types of divergent logics, such as the logic of understanding. Thus, no opportunity is given to other legal paradigms.

Finally, a fifth sign relates to the incessant promotion of judges' profiles as professionals, neutral, impartial, objective, and independent, etc., but the interpretation of each of these virtues is often confused. For instance, it has already been pointed out how «objectivity» is understood by the SCJN, which apparently is only achieved when lower courts apply the criteria established by jurisprudence.

Of course, these are not the only traces of legal formalism present in judicial practice, but they are sufficient to highlight the main issue in this study, which is the importance of education as an appropriate measure for strengthening the judicial institution in Mexico.

In a world where the constitutional state has become so vibrant, the federal judiciary, at least in Mexico, cannot continue to be seen as an institution detached from the public. Even less should it be ignored that its decisions affect political life. Whether the Mexican legal community likes it or not, judicial decisions are a kind of «political message» to everyone, as judges are the ones who ultimately decide which reform proposals are consistent with the constitution. Hence, the issue of education remains crucial.

VI. CONCLUSIONS

Thus, in countries where formation has not been given importance, the perception indices of the rule of law do not yield desirable results, despite constant updates in the necessary knowledge for administering justice. This is detailed in the latest World Justice Project: Rule of Law Index 2023 report, United States, for example, ranks 26th, while Mexico ranks 116th out of 142 countries studied. This means that despite what SCJN says, the rule of law is related with how the citizens understand the judicial task.

On one hand, Mexico does not have a proper formation model that distinguishes legal professions as such. This has led to the mistaken idea that a legal professional can be a prosecutor today, a notary tomorrow, and a public official or SCJN minister the day after, as if none of these professions required specific formation, because the lawyers' analytical capacity it is the same for all those functions, which it is wrong.

On the other hand, as has been discussed, Mexico still lacks a true judicial career path aimed at establishing a solid rule of law and a successful legal education model, such as the National School of Magistracy (ENM) in France (1958). Instead, Mexico continues to rely on technical and instrumental elements as if it were a mere superficial fix. Additionally, issues related to judicial independence, impartiality, and other important areas, such as the judge selection process, should be considered.

Certainly, the latter is perhaps the most striking, as Villegas pointed out, the judiciary no longer has individuals properly trained in administering justice. Instead, the system itself has led to key positions being occupied not by judges per se, but by politicians, who are categorized by the judiciary as «political judges». However, beyond this controversy, what weighs more is Badinter's observation that judges must have a certain degree of ingratitude towards those who appointed them, which can only be the result of their formation.

As Dworkin has insisted, the world of law today is understood as the «age of judges», but few realize that the law has ceased to be monotonous and has evolved. The observation of the norm is no longer an absolute parameter for resolving legal disputes; rather, an effort beyond what logic prescribes is needed. The science of law is not about a cognitive understanding of nature but is a practical function, which involves resolving social conflicts. Hence, formation becomes of severe importance.

Therefore, instead of focusing on the best mechanism for selecting judges, it is crucial to first address questions such as: Where and how are judges formed in Mexico? Additionally, what kind of formation have those who are already part of the judiciary received? How they understand the law? In the end, all this pertains to an ethical and hermeneutic issue.