Democratic governance and the courts : the political sources of the judicialization of public policy in Argentina

Ryan, Daniel Eduardo
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The purpose of this dissertation is to examine under what political conditions public policy issues are likely to become judicialized in Argentina. This study shows that the most widespread theoretical explanation, the loser argument, is too general and does not provide much analytical insight about the relationship between the political context and the judicialization of policy. Meanwhile, other explanations developed by the literature, mainly the politically disadvantaged group and the fragmented legislative power, although theoretically valid, have a limited empirical coverage and cannot fully explain the phenomenon of policy judicialization in Argentina. Taking into account the limitations and contributions of the existing theories, the theoretical argument of this dissertation is predicated upon the idea that there are various, alternative political scenarios under which judicialization is likely to occur. In other words, there is not just one, but several, different political conditions or combinations of conditions that might trigger the involvement of courts in public policy. Within this conceptual framework, the dissertation argues that policy disputes are likely to become judicialized under two political scenarios which have not been considered by the existing literature: first, when the state apparatus is unable to implement or enforce policy goals and mandates already approved by the political branches of government, and second, when the political elites in charge of the executive do not fully support existing policy mandates, and the legislature is too passive or deferential to the government regarding that policy issue. In these types of political contexts, social actors are likely to judicialize their policy claims. To assess these arguments, the dissertation develops a qualitative comparative analysis (QCA) of 13 major policy conflicts that occurred in Argentina during the last two decades, complemented by case studies. As a result of my analysis, I identify three combinations of political conditions that are sufficient to trigger the judicialization of policy in Argentina. Two of these combinations clearly fit with my theoretical argument and expectations about what political scenarios are likely to lead to policy judicialization, while the third combination closely reflects the political disadvantage argument.