The Construction of the Rule of Law in Argentina: A Tale of Two Provinces

Abstract

El pueblo unidojamds serd vencido.' In October 1998, for the first time in over a decade, these words reverberated in the main square of San Luis, Argentina. A diverse group gathered to demand reform from Governor Adolfo Rodriguez Saa, who had accumulated absolute control of provincial politics during his fifteen consecutive years in office. Lawyers and former judges carried a coffin symbolizing the death of justice in the province of San Luis. As part of the governor's assault against judicial autonomy, he had purged and packed the courts, lowered judges' salaries, and prohibited suits against the state, all violations of the San Luis and Argentine constitutions. Surprisingly, right next door to San Luis in the province of Mendoza, judicial autonomy has increased since Argentina's 1983 transition to democracy. Mendoza's governors have complied with the constitutional system of checks and balances. In contrast to Rodriguez Sad, Mendoza's governors have respected judges' salary protection and life tenure and have submitted to the many rulings that challenge executive interests. Why are there very different levels of judicial autonomy in these two provinces? How was San Luis's governor able to eliminate the efficacy of all potential checks on his power? How do events in these Argentine provinces relate to the rule of law in other countries? Scholars of democratization have argued that many new democracies are delegative and illiberal and risk breaking down. They are incomplete or defective. Elections and other democratic mechanisms are only partially embedded or not embedded at all in the rule of law.2 While almost all studies recognize the importance of the rule of law, virtually none discusses how it emerges. Subnational comparison can address this gap. Under the rule of law, powerful state and private actors are bound by formal legal rules. In theory, the rule of law and democracy go together. In practice, however, many new democracies have yet to construct a rule of law. The pattern of democratization in most third wave nations has been very different than in the mature democracies of North America and western Europe, where the rule of law preceded or developed in tandem with democracy. In many emerging democracies the sequence has been reversed. Countries such as Argentina, Russia, and Brazil instituted open