Taking the state to court: the importance of judicial autonomy in new democracies.

• Author: Mesulam, Semra A.
• Position: Book Review

The Rule of Law in Nascent Democracies: Judicial Politics in Argentina Rebecca Bill Chavez Stanford, CA: Stanford University Press, 2004, 288 pages.

Argentina's constitution, which was drafted in 1853, is the second oldest in the Western Hemisphere. Heavily influenced by the US Constitution, delegates to Argentina's first constitutional convention established a federalist system, enumerated a list of civil and social rights and emphasized the separation of powers. Although the document has formally remained in force since that time, frequent military coups and periods of authoritarian rule have seen constitutional procedures and protections periodically suspended. Argentina is thus both an old democracy and a new one: Undemocratic presidents have repeatedly bequeathed to their democratic successors the Herculean task of implementing democratic institutions and processes anew

In her ambitious first book, Rebecca Bill Chavez examines the history of the rule of law in Argentina, focusing on the issue of judicial autonomy to determine how the rule of law emerges in nascent democracies and how it endures. Reminding readers that elections alone do not guarantee democracy, Chavez is not the first to assert that the rule of law--a system in which "powerful state and private actors are subject to legality and bound by the formal rules of the game"--is a requirement for a liberal democracy In this meticulously documented survey of Argentine judicial autonomy from 1862 to 1999, Chavez scrutinizes instances of executive subordination of the judiciary at both the national and subnational levels. She explores these events in an effort to determine the relationship between free elections and judicial independence. She concludes that competitive politics are a requirement for judicial autonomy. But in the absence of party competition, the distribution of economic resources and the influence of a reform coalition of non-state actors can serve as alternative routes for the requisite power dispersal.

Chavez persuasively argues that "ultrapresidentialism," wherein both the judicial and legislative branches are subordinate to the executive, is a uniquely Latin American phenomenon that derives front the centralized nature of Spanish colonialism and the European civil law tradition. Accordingly, The Rule of Law in Nascent Democracies focuses heavily on the role of the president in the consideration of judicial autonomy, identifying five benchmarks: violation of a...