5
As noted above, Helmke develops a rational choice explanation to the question of why
judges decide against the government in weakly institutionalized settings, even against those
rulers who nominated them in the first place. This theory builds bridges between the strategic
model of judicial behavior, the question of judicial independence and the more general issue of
the role of judges in contributing to the rule of Law in transitional or unstable political settings.
Helmke begins by noting that judges on the Supreme Court of Argentina frequently voted
against the government in spite of an apparent absence of judicial independence. Thus justices
adjust their decisions in cases involving the government, depending on the underlying political
environment: When the government is stable, popular and there are no potentially viable threats
against it, the Court tends to side with the Government. Conversely, whenever a government
starts losing its political hold and the opposition strengthens, justices turned their back against
the rulers and start defecting.
The problem is that our traditional understanding of the strategic model does not explain this
phenomenon. Helmke claims that these decisions are not evidence of an independent judiciary,
but of judges who are constrained vis-à-vis the opposition who will form the incoming
government, and who will have the power to impose sanctions on them.
This theory is based on a series of assumptions, which are not beyond controversy. All these
premises will be addressed in order to prepare a comparative framework to test the theory. Such
conditions, as mentioned in Courts Under Constraints, are:
a)
That ‘the judge must sufficiently care about avoiding punishment’ (Helmke, 2005, p. 57).
This motivation to avoid punishment is personal, varies from judge to judge, and is
related to the different goals that can drive judicial behavior in unstable political settings,
Convention