How are the Guards Watched Out? Institutional Limits of the Judicial Independence in Brazil and Spain

Abstract

This paper collects data on normative design, composition, organization and performance of the Councils of Justice of Brazil and Spain, and identifies the main obstacles to the functioning of both in order to bring closer their institutional experience. The attention is focused on seeking whether the institutionalization of the Councils of Justice in the postauthoritarian constitutional experiences of these countries provides common parameters for understanding judicial practices. By following a systemic-constructivist approach that confronts judicial discourses and practices, the paper calls into question the dogma according to which judges' autonomy widens the ambit of rights. The hypothesis is that the preservation of the corporate structure and the lack of connection between independence and accountability have contributed to the dysfunctions of such bodies to the detriment of the entire Judicial Power.