Democratic Governance and the Judicialization of Policy : A Qualitative Comparative Analysis of Policy Conflicts in Argentina

This paper examines the relationship between quality of democratic governance and the judicialization of public policy. It is an attempt to go beyond the conventional argument that the policy “losers” (those that cannot achieve their policy goals through the traditional policymaking venues) are the ones who litigate. That argument oversimplifies how democratic governance operates and how it is linked to the phenomenon of judicialization. In contrast, this paper analyzes whether there are certain patterns in the way a democratic polity works that trigger the judicialization of policy issues. To that end, it unpacks the relationship between democratic governance and policy litigation by identifying and analyzing a set of four distinct yet interactive factors that can initiate processes of judicialization: political disadvantage, the passivity of the legislature, problems of state capacity and the opposition of the executive. To assess these factors as well as the loser argument, the paper develops a comparative qualitative analysis (QCA) of major conflicts that occurred in Argentina in the fields of environmental policy, consumer protection, health care and indigenous rights. After examining and comparing the processes by which these policy disputes reach the courts, the paper identifies three different patterns in how the quality of governance triggers policy litigation in Argentina. As the analysis of the Argentina case shows, this paper contributes in developing a theoretical framework to analyze the relationship between the quality of democratic governance and the judicialization of public policy processes