Vol. 15 No.6 (June 2005), pp.556-559

COURTS UNDER CONSTRAINTS. JUDGES, GENERALS, AND PRESIDENTS IN ARGENTINA, by Gretchen Helmke. New York: Cambridge University Press, 2004.  240pp.  Hardback. £40.00 / $60.00.  ISBN: 0521820596.

Reviewed by Javier A. Couso, Faculty of Law and Social Science, Universidad Diego Portales, Santiago, Chile.  Email: javier.couso@udp.cl .

Over the last decade or so, comparative judicial politics have experienced something of a boom, with research on the politics of courts being conducted in an increasing number of countries from all over the world. This represents a rather remarkable development for a field that until not so long ago was circumscribed to a handful of mainly English-speaking countries. As a consequence of this trend, scholars familiar with the theoretical frameworks and methods developed by traditional law and courts scholarship have studied the politics of justice in countries as varied as Taiwan, Hungary, and France (Ginsburg 2003; Scheppelle and Örkény 1999; Stone 1992). The book under review, COURTS UNDER CONSTRAINTS: JUDGES, GENERALS AND PRESIDENTS IN ARGENTINA, by Gretchen Helmke, represents one of the latest contributions to this literature.

As the title of the book suggests, this book addresses the judicial politics of Argentina, specifically at the Supreme Court level. Although it is a single-country case study, its aim explicitly exceeds the mere description and analysis of the political role of the Argentinean high court, purporting instead to develop a theory of high court behavior in what the author calls “deeply insecure institutional environments”—that is, countries where judges have no – or very limited – autonomy from the political branches. Furthermore, the book aims to contribute to the “attitudinalist approach” to the study of law and courts, especially to the “separation of power” variant of it, through the refinement of some of its standard assumptions.

Helmke’s basic point is to develop a model explaining why, on occasion, it would be rational for non-independent judges to rule against the government. In the process of doing so, she introduces the concept of “strategic defection,” which accounts for the otherwise paradoxical behavior of judges willing to rule against the government in countries where the courts have no or very limited autonomy. Given the relevance that this concept plays in the argument of the book, it is perhaps better to start fleshing out its meaning from the outset.

The notion of “strategic defection” captures the dynamic of court-government relations in the context of highly unstable institutional environments (such as that of Argentina), where new governments can easily change the composition of a high court whose members they distrust, through impeachment, forced resignation, or court-packing. In such places, argues Helmke, “the relevant inter-temporal conflict of interest shifts from the standard scenario of a judge [*557] appointed by a past government who is primarily constrained by a current government, to a more uncertain situation in which a judge appointed by the current government faces potential constraints at the hands of a future opposition government” (p.13). Given this context – continues Helmke – it would be rational for strategically-minded justices to start ruling against the current government once it starts to lose its power (“defecting” from it), in order to avoid being ousted by the next government.

Defending the relevance and originality of the concept of “strategic defection,” Helmke stresses the fact that, although neither the claim that judges rule against governments nor that they behave strategically is new, her claim that judges may on occasion rule against the government for strategic reasons, represents a novelty. Contrasting her model with Robert Dahl’s  (1957) classical account of the legal-political cycle in the United States (in which anti-government decisions by the American Supreme Court are expected to happen at the beginning of new governments by judges appointed by the previous administration), Helmke argues that in institutionally unstable countries, such as Argentina, a radically different legal-political cycle obtains—one in which high courts will be loyal to new administrations at the beginning, but then rule against them toward the end of those governments—especially if a change in power seems likely.

The reason provided for this “reverse legal-political cycle” in institutionally unstable settings, is that in those places incoming administrations can more easily appoint new justices from the start, a move that would translate to high courts disposed to rule in their favor. With the passing of time, however – as governments grow weaker, and the chance that the opposition will take over increases – one should expect high courts to begin ruling against the government, in a strategic move aimed at reducing the chances of being punished by the incoming regime.

As Helmke emphasizes, the concept of “strategic defection” provides an answer to the otherwise puzzling willingness shown by high courts in many Latin American countries in which there is no judicial independence to rule against the government, thus providing a clue to the following question: “if even ostensibly independent judges have a hard time ruling against the current government, why would Latin America’s judges ever be willing to do so” (p.5)?

Having introduced the concept of strategic defection, Helmke, goes on to describe the basic assumptions of the model underlying this notion, in particular, the attitudinalist account of judges as rational decision-makers pursuing individual goals. Although she takes pains in analyzing alternative accounts of judicial behavior – such as the sincere pursuit of specific policy goals through their decisions – in the end she argues that “an implicit assumption underpinning the logic of strategic defection is that judges place a higher value on avoiding sanctions than on deciding cases in line with their sincere preferences” (p.30), a supposition she thinks holds in most institutionally unstable countries. Then, Helmke develops what she calls “a formal signaling model based on incomplete information,” aimed at organizing the [*558] insights that led her to come up with the notion of strategic defection in the first place, as well as analyzing why politicians in institutionally unstable places will “punish loyal judges and reward defectors” (p. 41). As she points out, the aim is to generate “a series of testable hypotheses about when and in which types of cases judges will strategically defect” (p.17).

Once elaboration of the formal theoretical model is finished, Helmke devotes the remaining chapters of her book to “evaluate how well the model performs empirically, by focusing on court-executive relations in Argentina” (p.61).  She does so by analyzing the relationship between the Supreme Court and the executive power from 1976 to 1999 (a period which includes both dictatorial and democratic regimes) using both qualitative and quantitative data. In the concluding chapter, after elaborating on the way in which the Argentinean case “proves” the model of “strategic defection,” she devotes a few pages to apply this last concept to other Latin American countries.

Confronted with the task of assessing the quality of this work, one is faced with the difficulty of balancing its many virtues with its few – but fundamental – flaws. Thus, for example, while the field will certainly benefit from the insight and creativity exhibited by Helmke in elaborating the novel and theoretically interesting notion of “strategic defection,” there are a number of serious problems with her argument. The first and most fundamental one has to do with the way in which the core thesis of the book is introduced and then tested. Indeed, although the “strategic defection” concept is presented as an independently elaborated one (which is only then formalized into a theoretical model that is later tested empirically by seeing how well it explains a specific real-life case), everything in the book shows that the sequence of events was actually very different, leading to a serious methodological problem.

The issue arises from the fact that it was the very study of judicial politics in Argentina which led Helmke to develop both the concept of “strategic defection” and the model she then tests by seeing how well they explain the Argentinean case—that is, the very case which led to the elaboration of the concept and theory being tested. This rather circular strategy undermines what appears to be an otherwise well researched and elegantly written case study on the politics of the Argentinean Supreme Court, a work which could also legitimately claim credit for having introduced a novel concept in the literature on court-executive relations (one with the potential of broadening our understanding of judicial independence in highly unstable institutional environments).

The danger of methodological circularity could have been avoided if the author had restricted herself to do just an analysis of the Argentinean case and to engage in concept and theory-formation, without pretending to both introduce a theory and then test it. By attempting to do all these things, Helmke reached a dead end, which was only made worse by her cursory analysis “applying” her model to four other Latin American cases –a task to which she devotes just a few pages in a segment plagued with factual errors concerning the judicial politics of the countries concerned. [*559]

The major methodological problem just noted is paradoxical, given the almost obsessive attention Helmke pays to the particular approach to which she openly adheres to: the rational choice approach to law and courts employed by the “attitudinalist school.” Indeed, Helmke’s preoccupation with being on top of the latest methodological innovations of this approach to judicial behavior seem to have prevented her from looking at the Argentinean case with a fresh mind, which in turn may explain why she missed such an important methodological problem, while been  keenly aware of other, more minor issues.

As it happens in the field of economics and, increasingly, in rational choice-oriented political science (where empirical research is often method-driven), Helmke’s book at times gives the impression that the author was more interested in improving the state of the art of a specific scholarly approach, than in trying to understand all the nuances that the Argentinean case presented, a move that ultimately distracted her from the primary focus of the book, a study of court-executive relations in that country in the last portion of the twentieth century. This is to be regretted, in light of the massive amount of insightful information and analysis the author gathers and generates, all of which could have been put to a better use than the defense of an argument that seems directed to the very narrow audience of those practicing the attitudinalist model.

REFERENCES:

Dahl, Robert. 1957. “Decisionmaking in a Democracy: The Supreme Court as a National Policymaker.” 6 JOURNAL OF PUBLIC LAW 279-95.

Ginsburg, Tom.  2003.  JUDICIAL REVIEW IN NEW DEMOCRACIES: CONSTITUTIONAL COURTS IN ASIAN CASES.  New York: Cambridge University Press.

Scheppele, Kim Lane, and Antal Örkény. 1999.  “Rules of Law: The Complexity of Legality in Hungary,” in Martin Krygier and Adam Csarnota (eds), THE RULE OF LAW IN POST-COMMUNIST SOCIETIES. Brookfield, VT: Ashgate.

Stone, Alec.  1992. THE BIRTH OF JUDICIAL POLITICS IN FRANCE: THE CONSTITUTIONAL COUNCIL IN COMPARATIVE PERSPECTIVE. New York: Oxford University Press.

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© Copyright 2005 by the author, Javier A. Couso.