Monday, April 2, 2018

Carl Menger on the origins of law

Carl Menger was the father of the Austrian School of Economics. Today, we know better the contributions of those who followed on his path, like Hayek and Mises, than those of the initiator. Neverthless, I think that there are still in Menger's works gems of thought that deserve greater consideration.
I plan to write three posts about one of those neglected gems, Menger's thoughts about the orgins of law. His article has been included as appendix VIII of his book "Investigations into the Method of the Social Sciences" (link to the book at 
This first post will tell briefly how he came to the notion of spontaneous order, and how he applied it to the origins of law. In the second post I will try to show how Menger provided a better understanding of law than today's dominant theories. In the last post I will trace a parallel between Menger's descriptions of the orgins of money and of law and will suggest that they are relevant not only concerning the origins of both in the distant past but to understand how money and law work today. So Menger's little article on the origins of law sheds light not only on history, but on legal and economic theory.
How did Menger come to the idea of spontaneous order? A few years after writing his book Principles of Economics (1871), he engaged in a famous debate with German economists who denied the very possibility of an economic theory. They claimed that economics had to be dissolved into national history as economic life was merely another manifestation of an undefined national "spirit". As part of his reply, Menger wrote about the real origins of economic institutions, showing that it wasn't a mistical collective spirit peculiar to every nation that shaped them, but the action of people who everywhere on earth tried to improve their situation. In his study, Menger came to the notion of spontaneous order, an order that results from individual efforts of people who pursue individual goals by adapting to each other's action. That is how markets work, without the need of a common national goal, State plan, or Weltanshauung.  The notion of spontaneous order became one of the key ideas of the Austrian School of Economics. It was later developed by Friedrich Hayek and many others who followed Menger's insight.
It is well known that Menger wrote an essay in which he explained that it was spontaneous order that created money. It is less often mentioned that he applied the same idea to the origins of cities and of law.
Menger said that the use of money came as the result of spontanous human actions that weren't commanded by any king or parliament but evolved from the mutual adaptation of people who pursued their own goals. Certainly, that is how barter must have started, as it is difficult to assume that some tribal leader gathered his people some day and told them: from now on you will have to exchange things. No, barter must have started by people who shought to improve their situation by offering things they had in excess -say animal skins- in exchange for things they lacked -say arrows. By the same spontaneous process -not following orders-, some individuals came to the idea of using intermediate objects that were easier to carry and were readily accepted everywhere. So they would exchange their excess goods for things they didn't really need, but which they could easly exchange for those they did need. Skins, salt, pieces of iron, silver, gold and many other things started to be used as intermediate goods that facilitated exchange well before any king decided to put his seal on a coin.
I won't try to repeat Menger's magnificent article about the origins of money and must simply recommend the lecture of the original (link). But, as said, I would point out that it is often forgotten that Menger used the same method he applied to the origins of money, to the more general issue of the origins of law. 
Today we tend to see law as something made by legislators, perhaps also by judges, maybe even by regulatory agencies. But we seldom stop to think that law must have started the same way money started, by the efforts of individuals who had in mind their own improvement and that of their families. If it is unrealistic to assume that kings ordered their people to engage in barter and then to use intermediate goods, it is even more so to assume that some day a king gathered his subjects and told them about a bright idea he had that he decided to call "inheritance", commanding his people to leave their huts and kattle to their children. 
No, some people must have started to do these things spontaneously, and many of them must have observed that those who respected their neighbours' children inheritance had a better chance of having their own children's inheritance respected. Of course, as with barter and money, there must have been variations and even exceptions -tribes that never came to these practices. But on the whole people tended to imitate the most sucessful ways of action.
In commerce, clever individuals in many places around the world must have observed that it is better to honor your word than to cheat. That if you manage to trick your neighbour and sell him a sick animal you won't be able to sell him another one, and probably won't sell kattle again in the whole village. Others would imitate that practice. Some must have observed that it is a good thing to isolate those who broke their promises and refrain to deal with them, which must have been an informal but effective punishment -as it is still today.
Some villagers must have started to use some formal words to stricke their agreements as a way to be certain about the meaning of what is promised. That was advantageous as a way to prevent disputes. Doing it in public must have worked in the same way. Helping others in the persecution and punishment of robbers and other criminals was bound to be seen as a way to protect yourself, your family, and the whole area from suffering future outrages. 
None of this implies that this evolution was perfect and without setbacks. Nor does it mean that legal practices were uniform (as there was wide diversity in the objects used to facilitate exchange). Nevertheless, discovery through experience, insight, and imitation of succesful practices worked in law as worked in building, cultivation, sailing, and many other human activities.  
We must understand that "spontaneous" does not mean "thoughtless". On the contrary: there are the thoughts of millions of people doing things that benefit each other. It means: practices and order that arise without anyone commanding people what to do, and without the need of an agreement on common goals.
Menger says that sooner or later, chieftains must have started to put their seal on these practices, as they did with money. They must have organized the persecution of criminals, given protection to commercial fairs...and too often abused their power. 
When kings issued orders, they called them "law" too. More often than not, it was simply an official seal given to ancient practices that had emerged spontaneously. Sometimes though, these laws were truly just the will of the rulers. Nevertheless, kings and governing bodies must have soon realized that issuing their commands under the name of "law" gave them an aura of respect that ancestral customs and rights possessed, and mere personal whim could not provide. Still, it seems that in some places people refused to use the same name for law that resulted from their own action and the edicts of some authority. In Roman law, the word "delicto" was reserved for those punished by the old rules of the city from time immemorial. Those other ones created by authorities received the name of "cuasidelicto", that is, "like delicto", but different in origin and therefore not to be confused. 
In modern times, we tend to think that law is simply the expression of the will of some authority, usually an assembly of legislators. That is because we see only the end result of a long historical evolution and, as with money, we tend to assume that everything must have started as it is today, with some authority putting its seal on something.

Thursday, September 8, 2016

Do International Conventions Prevail Over State Constitutions?

 In 2007 the Buenos Aires Province Supreme Court decided a case that shows how far international law has made inroads into federal nations. At least in theory, Argentina is a federal country with member states (provinces) that have their own constitutions and local laws. Nevertheless, for more than a century the three branches of the federal government have greatly enlarged their powers at the expense of local authorities, usually without much resistance from them. Public opinion has remained indifferent to the process. In my last article I made general remarks about the issue. Now I want to illustrate it with a case in which a provincial Supreme Court invalidated a rule in the provincial constitution about the election for the post of governor, as being contrary to international law.
A clause in Buenos Aires Province Constitution (Art. 121 inc. 1) states that governors must have been born in Argentina, or -if born abroad- be the sons of Argentine parents (this latter provision contemplates the situation, not uncommon in our history, of political expatriates). The federal Constitution has the same rule for the post of President (Art. 89).
In 2007 the Colombian-born businessman Francisco De Narváez Steuer announced his postulation to the post of governor for one of the many branches of the Peronist party. Two small parties objected on the grounds of the previously mentioned rule. The issue reached the provincial Supreme Court which decided to invalidate the constitutional rule as being contrary to international law. Evidently, it means that international conventions are superior to state's constitutions. And as the Argentine federal constitution has the same rule for the post of president, one may wonder whether international law might prevail against it too.
As it is usual with cases that are decisive to the life of the nation, Argentine academics and jurists have payed no attention to that ruling. No review, no comment, for or against. The notion that there is no point in examining the legal arguments of a decision that is “final” -i.e. that there is no appeal from it- has been adopted by most Argentine law scholars, at least when the decision has deep economic or political consequences. Perhaps that comes from a misconceived "realism", and possibly also from an overcautious aversion to issues that might not be wholly advantageous from an academic point of view.
In a previous article I have made a summary of three federal Supreme Court's rulings of such kind (link). The legal arguments that supported those decisions received very little attention, not only from journalists, but also from law scholars. I think that such lack of interest is not prudent. Nevertheless, as I work in a humble position for the above mentioned local Supreme Court I cannot give an independent opinion concerning the case of the candidate for the post of governor. Still, I think it necessary to fill the gap in the information provided to the public, and at least point out the momentous relevance of the case -whether one agrees with the judgment or not.
The Buenos Aires Province Supreme Court invalidated the rule in the provincial constitution as being against Article 25.2 of the International Convention on Civil and Political Rights which states that
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions...(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.
In turn, Article 2 states that
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
It must be added that in 1994 the Argentine Federal Constitution was amended, and that along with many other innovations, a new Article 75.22 enumerates a number of international treaties and conventions from which Argentina cannot quit unless it is so decided by the vote of 2/3rds of the federal Congress' members. Among these hard-to-abandon treaties is the above cited International Convention on Civil and Political Rights.
Evidently, no law can alter the rights recognized in those treaties, unless of course it is voted by 2/3rds of the Congress' members. Although it is not exactly the same, one might also deduce that laws passed before these treaties where so elevated, must be considered automatically altered by the treaties. So has been generally understood by the courts. However, the federal Constitution doesn't answer the question whether those treaties and conventions are above the state's constitutions.

The judges give their arguments
Judge de Lázzari was the first to give his opinion, from which all the other judges dissented. He was the only one who said that there was no legal basis for invalidating the requisites that the provincial Constitution establishes for the post of governor. He pointed out that the Federal Constitution itself requires that candidates for the post of President be citizens born in Argentina, or if born abroad, be the sons of Argentine parents. Thus he reasoned that state's constitutions cannot be said to violate the federal constitution -not even indirectly- when they require exactly the same for the post of governor.
The judge added that the prohibition against discrimination in Article 25.2 of the International Convention on Civil and Political Rights is somewhat softened by the caveat that distinctions must be reasonable, and the dissenting judge found that the requisite in both the local and federal Constitution was reasonable.
Nevertheless, the majority of the Court followed judge Hitters vote, who reasoned thus: it is indisputable that local constitutions cannot contradict the Federal Constitution. The Federal Constitution elevates these treaties and conventions above normal statutes, so in a way they are incorporated into the federal Constitution. Therefore, if a state's constitution contradicts any of the rules in the treaties, it is as if it were against the Federal Constitution itself. He didn't answer his colleague argument -i.e. that the federal Constitution establishes the same requisite. This is customary in Argentine higher courts, where judges seldom mention the arguments they don't share. As a matter of courtesy, their votes run in parallel but never touch each other.
Judge Pettigiani joined the majority's answer but provided a different argument for it. He wrote that as Buenos Aires Province constitution forbids discrimination in very general terms, it must be understood that it forbids a form of discrimination that results from one of its own clauses. Therefore, the rule against governors born abroad must be considered as if forbidden by the same provincial constitution that establishes it.
The strategy of using one article to invalidate another article in the same constitution might seem odd to those not acquainted with modern methods of interpretation, but it has been used by renowned authors. Ronald Dworkin, much admired in Argentina and cited in this sentence, has argued that as the US federal Constitution forbids “cruel and unusual punishments” it may be concluded that it forbids states from imposing the capital punishment. To the objection that the US federal Constitution itself establishes that no one shall be deprived of life without the due process of law -a provision that would be contradictory if that punishment were forbidden by the same constitution-, Dworkin answers that the founding fathers might not have been aware that capital punishment is indeed cruel. They might not have realized that after banning cruel punishments, there was no need to provide procedural guarantees for the trial of capital crimes. Dworkin declares that at the very least the question is “open” which in his parlance means that it is closed to the states and must be finally decided by the federal Supreme Court (Taking Rights Seriously p. 135, also in Freedom's Law p. 291).
But we must return to our case. Judge Negri joined the majority although he based his answer on his own arguments. He declared that it wasn't unreasonable to interpret the prohibition against governors born abroad as if it didn't actually forbid it. And he stressed that Colombia, where the would-be candidate was born, was part of Latin-America, which the judge considered only a part of an unfortunately dismembered nation.
At the time the case was decided there were two vacant seats in the Court. Two judges from a lower court filled the empty places and they too jointed the majority's opinion. To the argument provided by Judge Hitters, Judge Domínguez added that according to the federal Constitution, only the federal government is authorized to pass laws establishing the the rights that pertain to citizenship. He didn't address the objection pointed out by judge de Lázzari: federal legislation -the federal Constitution itself-, establishes the same restriction. As said, that is the custom in our higher courts.
As a consequence of this decision, one must understand that international conventions -at least those that cannot be abandoned but by 2/3rds of votes in the federal Congress- are above local (state) constitutions. And as this case shows, that applies not only to traditional human rights issues, but to matters that influence the member state's elections and institutions.

Which international convention prevails?
Now we know that conventions prevail over state constitutions, at least according to this decision. But it must be said that the sentence also means that the International Covenant on Civil and Political Rights prevails over and renders ineffective a rule in another international convention listed in the Argentine federal Constitution. The American Convention of Human Rights (Pact of San José, Costa Rica) forbids discrimination but admits that the right to participate in government may be restricted “on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings” (Article 23). Although the issue was not discussed explicitly in their sentence, it is evident that on this point the judges in the majority assumed that the International Covenant prevails over the American Convention. Implicitly, the majority must have applied the principle known as “pro homine” which means that rules in human rights conventions shouldn't be interpreted as restricting others in other conventions or in local statutes that provide a more extensive protection to human rights.
So in order to allow provinces to enact a restriction not admitted in the Covenant, it is not enough to sign a Convention that admits it. The Covenant would have to be abandoned by 2/3rds of the members of the federal Congress.
There is an interpretation that might have made the Covenant, the Convention, and our constitutions compatible, but which to my knowledge has never been explored. As we know, there are multinational states. The former Yugoslavia is the most cited example, but there are many others. One might think that the prohibition against discrimination based on nationality for the post of high governing offices refers to nationals within a multinational state. So in the former Yugoslavia, Serbs, Croats, etc, should have had the same right to govern the country where they were born. Today, for example, Russians should not prevent Tatars born in the Russian Federation from reaching the highest public offices, etc. Nevertheless it might be argued that denying the post of president or governor to people born in a different country is not a violation of a basic human right. I am not sure whether this construction is possible. As I said, it was not explored in the case.

Though these issues remain indifferent to most of the public, one cannot discard that future generations might consider important to inform themselves about them -perhaps even to consider the legal arguments both of the majority and of the minority. Unfortunately, the task is not simple. As it happens with most judicial rulings, the sentence is very long and it is difficult for those untrained to separate the ratio decidendi from the obiter dicta. These two Latin expressions point out to a very important distinction. The former are the real basis for the decision, the latter are general remarks, opinions of the judges concerning issues not at stake in the case, etc. I have tried to sum-up the key arguments in a short space and have avoided legal jargon as far as possible. Certainly the sentence touches many more matters apart from question about the requisite for the post of governor that was controverted in the case. Judge Negri expressed his brotherly love to the Latin portion of the Americas, Judge Domínguez justly protested against the discriminatory fees that must be paid by foreigners who want to visit our national parks, and of course the sentence contains innumerable references to the decisions of federal and international courts. The public, which is the sovereign in democracies, should be able to distinguish what is relevant and what is not. They should be able to ascertain the consequences of judicial decisions. I see some hints that the public is starting to feel that not only prudence compels them to do it, but also the honest pride of living in a free nation.

Monday, March 7, 2016

International Law, a weapon for Federal Government against State's rights

Who is in charge of applying international treaties within a federal nation? The natural answer seems to be that it is the federal government. But that wasn't an issue when treaties covered only limited matters that were truly international in character, like navigation along rivers that stretch across many nations, etc. But what happens when federal governments sign treaties as a way to impose rules on matters that used to be reserved to the states?
When federal governments signed treaties meant to secure well defined fundamental human rights, nobody foresaw any possible clash with local states within each country's borders. But nowadays, international conventions bestow dozens of rights and entitlements upon everybody, from enjoyment of the environment, to the rights to a sustainable development, to participation in cultural activities. Does it mean that those international agreements transfer such matters to federal authorities?
That is what the Argentine federal Supreme Court seems to assume. Argentina is a federal nation composed of 23 provinces and one autonomous city, Buenos Aires, the federal capital. The arrangement resembles to that of the US to some extent, although the Argentine Constitution makes the federal Congress much more powerful than its US counterpart. In Argentina, the National Congress is in charge of enacting not only federal laws, but also “common” laws, that are uniform throughout the whole nation, covering criminal, civil, mining, labor, and pensions. Nevertheless, the federal Constitution says that cases arising on these matters will be tried in provincial courts which will have the final say on them (art. 75, section 12).
Today, that is no longer the case.
A power that already had few boundaries
Certainly, the Supreme Court has always been very generous in the interpretation of its own powers. Around the middle of the 20th century, the Court started to declare that the above mentioned rule has an unwritten exception. It decided that cases would't be settled by state courts, that on the contrary, the federal Supreme Court will have the last word whenever it finds that the local court's decision is not simply wrong, but arbitrary. That necessitated a difficult distinction between mere legal error and arbitrariness, a distinction that the court manages at its own discretion. Today, most of the cases decided by the federal Supreme Court -which includes the most significant ones- are of the kind that the federal Constitution reserves to state judges.
At the beginning there were a few timid warnings about this process of encroachment upon local autonomy. Unfortunately, most Argentines seldom show concern about matters of principle if the goal seems to lead to new and more generous entitlements and rights. Law scholars applauded every step forward taken by the federal Supreme Court, and cared little when it trampled on State's (“provincias”) rights.
With an awkward sense of humor that should have been reserved for lighter issues, the new broader powers that the Court claimed to possess have been grouped by law scholars under section four of Article 14 of the federal law that defines and limits the Court's powers (Law 48). Article 14 has only three sections.
A new weapon: international law
The previous powers of the federal Supreme Court -already almost unbounded- today seem small when compared with those that it receives from international conventions. The Court has established itself as the guardian of all the rights, guaranties, goals, entitlements, and pledges declared by international conventions. Of course, that means that the Court no longer needs to make use of old devices such as the “fourth” section of Article 14, and it can assert its reviewing jurisdiction citing solemn international declarations. Without completely abandoning the cherished imaginary clause that served the federal Court so well for such a long time, the Court now uses international law to impose its own interpretation of “common” statutes previously reserved to local courts. Nowadays the federal Court even reforms local rules of procedure.
The federal Argentine Constitution dates back to 1853, but Buenos Aires Province, by far the largest and most populated, joined the union in 1860. The federal system was adopted as a means to preserve local autonomy and put an end to civil wars. The Constitution declares that all powers not expressly delegated to the federal government are retained by the provinces (art. 121).
Without changing that arrangement, the federal Constitution was amended in 1994 by adding every progressive new right that the drafters managed to find in foreign constitutions and academic conferences. They made positive discrimination for elected positions mandatory, declared collective rights, provided that the federal Congress has to delegate powers to supranational entities, ordered cultural plurality, established consumer rights, and guaranteed a healthy environment to every inhabitant -among many other things.
Just in case they forgot a right or two, the members of the Constitutional Convention of year 1994 incorporated to the federal Constitution a number of international conventions on genocide, children's rights, women's rights, discrimination, economic, social, cultural rights, etc., and provided that Argentina could not get out of them unless a majority of 2/3 of all members of the federal Congress decided to do so (art. 75 section 22).
The federal Court set itself to the task of interpreting all these rules in the light provided by the Inter-American Court of Human Rights, but also of other international courts -even on recommendations of international councils and expert bodies. And it decided to impose its views on each one of the autonomous provinces that form the Argentine federation.
Amending criminal procedure
Apart from the its landmark decisions on criminal, civil, and social security issues (“common” law that still today is theoretically outside its reviewing powers according to the Constitution) the federal Court has established new principles that modify local rules of procedure, an area in which it seldom ventured before, as it is completely outside the power of federal authorities -be they judicial, legislative, or executive.
And yet, some years ago the Supreme Court started to require high provincial courts to review facts and evidence in appeals against criminal convictions. The Court imposed its new policy by invalidating sentences that didn't comply with the new standard (“Casal” case). That created havoc in those provinces that have public oral trials and laws that provide appeals limited to matters of law only. The new rules imposed by the federal Court forced many provinces to multiply the number of higher tribunals to cope with tasks for which they were unprepared. Still today, the provinces struggle to adapt the structure and number of their courts to the rules imposed on them.
Along the same lines, the federal Supreme Court has decided that judges that had ruled on controversies arising during the investigation of a crime (searches, detention, bail, etc.) could not decide on the final verdict of guilt or innocence (cases “Llerena” and “Fraticelli”). The Court argued that a judge that had authorized a search might afterwards be predisposed against the defendant, and find it difficult to admit that the person under investigation was innocent after all. However, in order to require provinces to provide different judges to such tasks -a matter that is clearly beyond the Court's or any other federal authority's powers- the Court had to base its decision on the fundamental right to be judged by impartial judges, which certainly is recognized by many international conventions. But in reality the Court never said that those judges that had decided about searches and bails were actually partial judges. It only claimed that a law system that provides different judges for such tasks and for the final decision about guilt or innocence is better at preventing the risk of having a partial judge. Nevertheless, all that the federal Court is allowed to decide is whether a judge has actually failed to his duty to be impartial -not whether a procedural scheme is better or worse at preventing such failure. In fact, the federal Court was redesigning local institutions.
Two problems
The wide range of issues that are covered by modern international conventions pose a challenge to federal states. Simply by signing treaties and conventions, the central government can encroach on the individual provinces (or states) that form the union. Federal authorities can always claim that all that they are doing is to fulfill the nation's new international obligations.

 But on top of that, there is a second problem when the advancing federal authority is the judiciary. While a legislature can plan its reforms so as to allow for adaptation, a court's decision is almost necessary retroactive. While legislators enact the rules that will be applied in the future, judges decide whether rules have been violated in the past. Federal laws that invade local autonomies can at least be mindful of time and resources. But federal Court sentences that alter local rules, by their very nature, create havoc by demanding immediate compliance. They alter, not only the future, but also the present, and even the past.