The illusion of the law: the Mexican case and the conflict between the law and the national feeling

Translated by Francesca Valsecchi 

In Western public discourse, we are used to view the law as an autonomous entity, a geometric formula capable of self-regulation and able to impose order upon the chaos of history. This is the classic legal-positivist illusion: the idea that simply drafting a great treaty or safeguarding from the formal independence of a court is enough to regulate human nature and to give stability to a society. Geopolitics, which is driven by power dynamics and collective psychology, paints a different picture. Laws do not arise in a vacuum; they are the projection of fears, ambitions and of the neurosis of their society. When this underlying dynamic is ignored, the fault between real society and legal architecture becomes seismic. Present-day Mexico is the epicentre of this shock.

The historic constitutional reform of the judicial power – started under the presidency of Andrés Manuel López Obrador and cemented by his successor, Claudia Sheinbaum – is not only a legal gamble or a populist oddity, as it has been hastily dismissed by Euro-Atlantic chancelleries. This is a radical structural distortion: the substitution of technical merit with the direct election by popular vote for almost 7.000 judicial offices, from the members of the Supreme Court to district judges. A unique example among the world’s major economies.

The collective psyche and the social divide

In order to understand the impact of this transition on the Mexican society, it is important to deconstruct the legal moralism and to observe the anthropological reality of the country. For decades, Mexico has been torn apart by a deep rift, fuelled by an endemic violence linked to drug cartels, which cause tens of thousand of murders each year. In this context, the rate of impunity for serious crimes has historically exceeded 90%. From an ordinary citizen’s eyes, the vaunted “independence of the judiciary” has never been a guarantee of impartiality, but rather a shield behind which the privileges of the oligarchic classes and complacency towards criminal power have been entrenched.

The government rhetoric of “democratisation of the justice system” appeals to this historic grievance. However, the reaction of the civil society has revealed a vertical split. On the one hand, the faction of Mexico which sees in the vote an act of patriotic reappropriation and an exemplar punishment for a caste which is considered parasitical. On the other hand, a massive mobilization that has brought together judicial employees, academia, and students at elite universities. The fear of this second faction is concrete: the introduction of electoral campaigns for judges risks to undermine the impartiality of the judiciary, subjecting judges to pressure from local politics, or, in an even blacker scenario, to financial and military blackmail by cartels, which have unlimited financial resources at their disposal to guide the vote towards areas they control.

The friction with the empire: the certainty of law as a geopolitical arm

The real conflict, however, is not taking place within Mexico’s borders, but along its northern frontier. For Washington, Mexico is not just any neighbour, but a cornerstone of its strategic and industrial security. In recent years, commercial tensions between United States and China have brought the American superpower to massively invest in nearshoring: relocating global supply chains within North America. Thanks to this dynamic, Mexico became the first commercial power of the United States, overcoming Beijing, with a bilateral trade of more than 800 billion dollars per year.

The impact of the reform on this economic pillar has been immediate and devastating. The White House, supported by the main industrial unions, has expressed strong reservations, warning of the risk of a freeze on foreign investments (which is estimated to fall by 10-15% in the most vulnerable manufacturing sectors). Credit rating agencies have downgraded the outlook of the Mexican debt, while peso has experienced sharp fluctuations on the currency markets.

Behind the legalistic fetish of “legal certainty” promoted by Washington lies a purely geopolitical issue. The American hegemon is not interested in the moral alignment or in democratic integrity of the Mexican courts, but it is interested in their predictability. A technical judicial system anchored to international standards is permeable to the influence of American multinationals and easily managed through traditional institutional channels. A judiciary which is elected by the people, driven by nationalistic feelings or, on the contrary, susceptible to blackmail by ungovernable local dynamics, introduces a chaotic variable into the empire’s territory.

Cuts on the commercial treaty

This tension is meant for a crucial deadline: the revision of the USMCA (USA-Mexico- Canada) free trade agreement. The treaty’s sunset review clause requires the three countries to negotiate or confirm the agreement. The United States have already made it clear that they consider the judicial reform a potential breach of the treaty provision relating to the protection of foreign investment and the independence of arbitral tribunals. The real risk for Mexico is that of a flood of international legal disputes and, in the worst-case scenario, the imposition of punitive taxes by the United States, a measure that would strike at the heart of an economy whose GDP depends for the 80% on exports to the US market.

Conclusions 

The Mexican case shows empirically that in the era of global interdependence there is no separation line between internal politics and geopolitics. In order to try to heal the historical friction between society and a law which is perceived as elitist, Mexico City has opened a Pandora’s box. The challenge in the coming years will not only be to see whether citizens will be able to elect fair judges, but also whether the country will be able to maintain its international credibility without falling into a tribal form of judicial activism.

Washington must realise that one cannot stem the profound trajectory of a national merely by brandishing the precious of a trade agreement. On the other hand, Mexico will discover that sovereignty comes at a very high price: without a solid and predictable legal framework, the real risk is not only economic isolation but also the impossibility of ruling a territory that is in desperate need of order, instead of new peoples tribunals.

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