Since the democratic transitions in Latin America, law and courts have become central arenas for political and social struggles, marking a major transformation in the region’s institutional and collective action landscape. This outstanding book by Catalina Smulovitz analyzes the history of legal mobilization and the judicialization of politics in Argentina as part of this broader regional trend. It also reflects the intellectual trajectory of a founding figure of the field of law and society in Latin America, whose scholarship has systematically examined the successive stages and dimensions of this development—from the seminal process of transitional justice to the contemporary manifestations of lawfare.
The book highlights that, in a regional context historically characterized by social marginalization and limited access to judicial institutions, the Argentine case was further shaped by the country’s political instability linked to frequent military coups since 1930. This gave rise to a “de facto legality,” judicial instability and the subordination of the judiciary to unconstitutional political authorities, resulting in a profound loss of public trust in judicial institutions. The book’s central thesis is that in the aftermath of the last military dictatorship and its complete rupture with legality, law was discovered as a powerful instrument of political action. It traces in detail the collective learning process that began with the 1985 Trial of the Military Juntas and unfolded over four decades of democracy, during which social and political actors came to use the language of rights and the courts to advance their agendas, contest decisions, and influence policy outcomes. The text offers a comprehensive overview of landmark court cases that have shaped Argentina’s process of judicialization, spanning human rights prosecutions, pension disputes, litigation over frozen bank deposits, and legal actions concerning environmental, reproductive, and housing issues, among others.
The book is structured around, and can be read through, two interrelated threads. On the one hand, it tells the story of the judicialization of politics in one country throughout several decades and historical moments, which is in itself one of its important contributions to the scholarship on judicial politics in Latin America, generally structured by influential collaborative volumes on a variety of case studies, or by books on a particular aspect of the process. On the other hand, throughout this analysis, it discusses central theoretical problems in the fields of law and society and judicial politics, such as the gap between law in the books and law in action, the sources of legal inequality, and the question of judicial legitimacy. Regarding the latter, it addresses a puzzling aspect of the Argentinian case: how we can make sense of an extensive use of law and the courts even under conditions of a persistent lack of trust in the judiciary (as low as 23,5% in 2023). These questions are examined through detailed empirical evidence and analytical interpretation.
One of the author’s most innovative contributions to the study of law and society is the analysis of how federalism produces inequality in the protection of rights. An entire chapter is dedicated to examining the factors that drive disparities in legal protection and access to justice across subnational jurisdictions. The analysis highlights the sources of variations in rights definition and protection, in the uneven distribution of resources, and in persistent inequalities in access to justice. The author notes that these findings raise the question of whether the autonomy and innovation that federal systems potentially offer “conspire against equality before the law” for ordinary citizens, since the scope and type of rights enjoyed depend on the district where they live. A detailed examination of provincial laws in Argentina concerning domestic violence, along with the mechanisms for public legal defense, illustrate how federalism influences both the enactment and enforcement of rights. Economic, political, and social factors are examined in depth as key drivers of subnational variation.
In its explanation of the rise of judicialization, the book explores three main hypotheses, particularly within the Argentine context following the 1983 transition to democracy. It contends that, contrary to the cultural hypothesis, the judicialization of conflicts cannot be attributed to changes in perceptions of the virtues of the law or legal institutions, given the persistently low levels of trust in the judiciary. Rather, the expansion of the use of law and the courts in Argentina is explained by the development and growth of a support structure for legal mobilization, as well as by changes in legal opportunities. Concerning the former, the book provides a detailed account of the historical development of organizational platforms that enabled sustained and repeated legal action. It highlights how the increase in legal professionals and changes in labor laws during the 1940s and 1950s gave rise to lawyers specializing in non-traditional conflicts. These lawyers subsequently adapted their skills to political defense and human rights advocacy during periods of political repression. Over time, many of these attorneys, often acting as cause lawyers, established professional associations and civil society organizations dedicated to litigating for rights. Regarding changes in legal and institutional opportunities, the 1994 constitutional reform is a key reference point. This reform significantly expanded collective and individual rights, authorized social actors to file claims, and constitutionalized international human rights treaties, thereby broadening the scope of judiciable matters. The book demonstrates how the convergence of favorable institutional opportunities and the availability of specialized legal expertise facilitated the use of legal tools to address political and social conflicts, ultimately driving the expansion of judicialization.
One of the main aspects that distinguish this book is its positive, sociological approach. It systematically avoids normative judgments about, for example, compliance with the law in Argentina or the outcomes of judicialization. Smulovitz challenges the narrative that Argentina is characterized by legal non-compliance (Nino Reference Nino1992), arguing instead that obedience and disobedience are contingent results of specific conflicts and contextual conditions, and that the law has been strategically employed by citizens and social movements. She proposes: “suppose we read Nino’s ‘lawless’ country not as evidence of legal illiteracy or the State’s inability to implement the law, but as revealing the continuous negotiations among societal actors over what order and legal frameworks are possible” (p. 23). This way of framing the problem serves as a key interpretive lens for the entire book.
Similarly, her analysis of phenomena such as lawfare and counter-legal mobilization—often seen as deviations from the expected potential of judicialization to advance rights and accountability—maintains a positive perspective. Smulovitz argues that these phenomena reflect the expansion of judicialization, rather than its limits or failures. She contends that they demonstrate the effective establishment of law and its broad reach, as legal reasoning and procedures are now widely employed by a variety of actors and causes, turning legal language into a genuine common language of politics.
