The Rule of Law in Nascent Democracies: Judicial Politics in Argentina (review)

The existence of an independent judiciary has become a mantra for international institutions and governments in developing countries. It is widely believed that an independent judiciary provides many benefits, such as low corruption levels and protection for human rights. By the same token, when we observe countries with high levels of corruption and poor human rights protection, a common suspect to explain those shortcomings is the lack of an independent judicial system. However, empirical analyses do not find consistent evidence that judicial independence produces those positive results. In addition, few existing studies go beyond a list of policy recommendations to inquire about what makes an independent judiciary possible. This volume does precisely that.

In her excellent book, Rebecca Bill Chávez intertwines legal, political, and historical analysis of Argentina to explore the conditions in which an independent judiciary emerges, consolidates, and endures. The book is not only timely but also important as a contribution to the literature that takes seriously the premise that law and power are theoretically and empirically interdependent.

The main argument is clearly stated in the first chapter: the balanced dispersal of political power is a necessary condition for an independent judiciary. Party competition is the key mechanism for such dispersal of power, because it promotes divided government, which, in turn, makes it difficult for a president without a congressional majority to "push through legislation that undermines the ability of control organs to serve as checks" (15).

According to this argument, formal rules that promote an independent judiciary should be honored where and when power is fragmented. When this is not the case, those formal rules would be either changed or ignored. The historical analysis of four phases in Argentine history shows this to be true. From 1862 to 1946 and during the Alfonsín years (1983–89), a high degree of judicial autonomy prevailed, which is explained by party competition. Under Perón and the period of military governments (1946–83) and also during the Menem administrations (1989–99), we find executive subordination of the courts, which is explained by monolithic party control.

Chávez also studies different paths that may lead to party competition and political fragmentation. She argues that the stage at which at least two parties compete and neither sustains control of both the legislative and executive branches can be reached via the distribution of economic resources among members of a divided elite or through a reform coalition of nonstate actors. These arrangements activate societal power and fracture political monopolies.

Both paths are analyzed historically in two Argentine provinces, San Luis and Mendoza. In San Luis, we learn that the Rodríguez Saá family's concentration of economic and political power allows them to subordinate the courts. In Mendoza, land ownership or economic monopolies have not been so concentrated; instead, economic resources have been dispersed among a divided elite. Here, competitive politics make possible the existence of an independent judiciary (83).

The last two chapters of the book explore the dynamics of judicial autonomy. After discussing the conditions in which to expect judicial reform, Chávez addresses the question of what helps maintain an independent judiciary over time when the government is not divided. She argues that the contributing factors are elected politicians' uncertainty about the future and public opinion.

In chapter 6 we find an instance in Mendoza (1983–87 and 1991–95) where there was unified government and party discipline but elected politicians did not undermine the judiciary. While the mechanisms that sustain judicial independence require more discussion and evidence, Chávez argues that "the rotation among Mendoza's three parties has created incentives to strengthen horizontal accountability agencies in the province. Governors have foreseen the displacement of their parties and therefore have sought the protection of such agencies, including the judiciary" (120). In chapter 7, Chávez analyzes the role of public opinion and organized groups not only in...