Hastings International and Comparative Law Review
Courts and the Creation of a Spirit of Moderation: Judicial Protection of Revolutionaries in Argentina, 1863-1929
Scholarship on Latin America has traditionally ignored the political role played by the judiciary. This gap may have some justification in the relative weakness of many Latin American judiciaries in recent decades, but leaves a serious void for understanding Latin American politics in earlier periods. This Article examines how the Argentine judiciary in the late nineteenth and early twentieth century protected the rights of government opponents who started armed uprisings with high political stakes. Far from acting as a tool of government oppression, the judiciary frequently challenged the government and placed sharp limits on its actions. The Argentine Supreme Court insisted on full application of habeas corpus, on the right of civilians to trial in civilian courts, on the right of rebels to release on bail, and even on the right of ordinary citizens to cooperate with rebels without government retaliation when rebels established de facto control over a portion of territory. At the height of tensions after a major rebellion in 1893, the Supreme Court went so far as to insist on the release of the leader of the revolt on grounds that he was protected by parliamentary immunity from arrest.
These decisions had an important impact on Argentine stability, because they helped forge a consensus on the limits of political repression in a country previously noted for its political savagery. Moreover, while Argentine elections during the nineteenth century were largely fraudulent, the judiciary's reputation for political neutrality was sufficiently established so that once meaningful electoral reforms were introduced in 1911 and 1912, supervision of elections was placed in the hands of the judiciary. The Argentine Supreme Court was sometimes limited by its failure to see its own role in political terms, but its focus on the intent of the Framers of the Argentine Constitution and use of the prestige of the U.S. model from which much practice was borrowed, gave it remarkable independence and stature as a constitutional arbiter.
Jonathan M. Miller,
Courts and the Creation of a Spirit of Moderation: Judicial Protection of Revolutionaries in Argentina, 1863-1929,
20 Hastings Int'l & Comp. L. Rev. 231
Available at: https://repository.uclawsf.edu/hastings_international_comparative_law_review/vol20/iss2/6