Sunday, March 24, 2019

Carl Menger and Edmund Burke, where do rights come from?

     In a previous article (link) we saw that Carl Menger traced the origin of money, cities, and law back to the action of individuals who pursued their own goals without following any common plan or being ordered about by any central authority. Unintentionally, they created an order that was spontaneous. Certainly, an order that grows out of individual pursuits must include some form of rights over land and other goods, as means to fulfill individual ends.
     Of course, sooner or later chieftains and kings started to issue their rules and impose their own order, which in their case wasn't individual, it was meant for all; it had a common purpose -good or bad. How exactly this process took place in different lands and nations is difficult to ascertain. Nevertheless it is unrealistic to assume that kings and parliaments started issuing commands on a blank slate. An order that they didn't create with rights and duties was already in place. So it is not true that, as some assume, every right and duty owns its existence either to the will of legislators or to the musings of sages. Certainly, statutes gave rights new shapes and thinkers inspired changes, but they did it on top of a spontaneous order that neither of them created.
     Unfortunately, both men in positions of power and revolutionaries often fail to see how it is possible that an order that is spontaneous works. The French economist Frederic Bastiat once wrote that people who despise the free market and its price mechanism do not realize how wonderful it is that a big city like Paris is fed without any central plan that tells bakers how much flour to buy and how many loafs of breed to bake and so with potatoes, onions and thousands of other goods.
     There was at the end of the XVIII century an inordinate number of busybodies full with bright ideas about the way other people would have to conduct their lives. Worse than that, a good number of them thought themselves justified in imposing their plans by force. In such conviction were united both men in government and those who wanted to overthrow them it was simply that the latter thought they had better and more radical plans to impose on others.
     No doubt at that time many nations, and in particular France, lived under very defective rule, the result of centuries of absolute kings imposing their will on people. The trouble was that on the other side there were men, revolutionaries and their mentors, even more ruthless in their disregard of anything and anyone that would hinder their plans.

Edmund Burke and the Rights of Man
     Carl Menger cites Edmund Burke as one of the first who understood how wrong they were those who, without understanding spontaneous order, worked to destroy it. Burke was no denier of natural law. Yet he saw that it was a very defective ground on which to defend rights, that is, rights that people must enjoy in the real world, not rights lingering in some theoretical cloud. Moreover, he realized that, as it happened in France, natural law could be used to knock down rights and even lead to tyranny.
     Neither was Burke an enemy of positive law. On the contrary, he wrote that “Men cannot enjoy rights of an uncivil and of a civil state together” (Reflexions on the Revolution in France, p. 50). On the issue of political power he wrote “Government is not made in virtue of natural rights, which may and do exist in total independence of it, and exist in much greater clearness and in a much greater degree of abstract perfection; but their abstract perfection is their practical defect” (op. cit. p. 51). In a famous image about the way rights work in a civil society Burke wrote “These metaphysic rights entering into common life, like rays of light which pierce into a dense medium, are by the laws of nature refracted from their straight line. Indeed, in the gross and complicated mass of human passions and concerns the primitive rights of men undergo such a variety of refractions and reflections that it becomes absurd to talk of them as if they continued in the simplicity of their original direction” (op. cit. p. 52).
     So Burke didn't deny natural rights and he acknowledged the importance of positive law. What was he against then? Burke was against positive law enacted on the basis of abstract reasoning resting only on very general dogmas.
     In his answer to the French philosophers and their British admirers Burke wrote that rights should be viewed as the inheritance of people -of each and every man and woman- and not the result of the will of the majority among them, or the majority in the assemblies they elect, or the plans devised by doctrinaires. That was the key element that distinguished British Glorious Revolution of 1688 from the French revolution of 1789.
     Burke compared the results of following English traditions and ancient laws and those of the theories of philosophers and the experiments of legislators. Already in his first essay “Vindication of Natural Society” he had assumed -tongue in cheek- the attitude of those who disdain the consequences of laws and value them only as the necessary corollaries of their petty theories.
     By the way, if people had followed Burke's advice, Marxism would have been discarded long ago, after its horrible consequences had become manifest in real life. Of course Marxists rejected with scorn the notion of natural rights, but they too built their systems on a few abstruse postulates and as the French revolutionaries where ready to kill anyone who opposed them. Marxists say: the reasoning looks good to us, so it doesn't matter if in the past all our patients have died, lets try the same medicine again. This time it will work.
     Burke was well aware of the many defects in the law of the land as it stood. But he thought it better to improve on it than to take it down. He used the image of a mortmain, that is, an estate that cannot be sold o renounced, but on which one could build. That applied even to legislatures. Burke wrote: “We entertain a high opinion of the legislative authority, but we have never dreamt that parliaments had any right whatever to violate property, to overrule prescription, or to force a currency of their own fiction in the place of that which is real and recognized by the law of nations” (op. cit. p. 126).
     Friederick Hayek agreed. As he wrote in The Road to Serfdom, “The idea that there is no limit to the powers of the legislator is in part a result of popular sovereignty and democratic government. It has been strengthened by the belief that, so long as all actions of the state are duly authorized by legislation, the Rule of Law will be preserved. But this is completely to misconceive the meaning of the Rule of Law. This rule has little to do with the question whether all actions of government are legal in the juridical sense. They may well be and yet not conform to the Rule of Law…It may well be that Hitler has obtained his unlimited powers in a strictly constitutional manner and that whatever he does is therefore legal in the juridical sense. But who would suggest for that reason that the Rule of Law still prevails in Germany?” (p. 91, 50th edition).

A false dichotomy
     Neither Burke nor Hayek based their convictions on an appeal to natural law or human rights. They praised the tradition of the rule of law, painstakingly built, first in Britain and then extended to other European countries and the United States. Yet the value of that tradition was not acknowledged by everyone. In Hayek's time (and still today) scholars offered their readers a misleading choice between positivism ands natural law. According to the first, we must assume that rights are the creatures of legislators, who will grant them or take them away A written constitution does not change significantly that picture because after all constitutions are voted at constitutional conventions, also by legislators. That is not a pretty picture.
     Then we are told that the alternative is to assume that there is a law that is “natural” in some sense. In its most simple formulation, natural law is assumed to be woven into the structure of the world and in every human heart. It is there for us to reveal, to discover but not to change at will. That is a prettier picture but unfortunately a very hazy one.
     If the source of that natural law is men's heart then we would have to explain away the burning of wives at the pyre of their husbands, practised in India for centuries. We would have to somehow dismiss the relevance of pogroms practised enthusiastically by people in Russia and Eastern Europe. Bear in mind that those were not actions taken by arbitrary rulers and resisted, or at least lamented, by common people. People did it, and often forced rulers to accept cruel customs against their better will. Human hearts and the natural law which, we are told, is written in each of them seem to have been awkwardly silent in these and many similar cases. Even sages like Aristotle saw no problem in endorsing slavery. If the human heart is the pillar on which rights stand, it is a very shaky one. Let alone the “structure of the universe”.

Hazy natural law
     Well aware of these objections, philosophers have tried to present refined versions of natural law. Nevertheless, in their efforts to bulletproof their theories they have distanced natural law from nature, they no longer claim that it can be deducted in any way from human nature or the structure of the universe. They readily recognized that the human heart is no sure source of it. That was bad enough a concession but at the same time philosophers have made natural law less similar to law. They no longer try to come up with a system that could remotely be compared to those that rule nations. By these means philosophers have have made their theories less susceptible to attack but also less useful as a weapon against injustice.
     This is no place to deal with the theories of Lon Fuller or John Finnis two of the most renowned modern defenders of natural law who in different ways have tried to parry the most obvious criticisms to which a naive version of natural law view is liable. I would just say that Lon Fuller's strategy avoids the whole issue about the origin and justification of natural law by arguing that it is already part of positive law. Fuller says that one cannot understand how judges (presumably he has in mind Western judges) apply law unless one takes into account some basic moral principles. Unfortunately, what he then enumerates are mostly procedural requirements for trials but he says very little about substantive law. (Lon Fuller:Positivism and Fidelity to Law).
     John Finnis does take substantive law into account. And he does not, as Fuller, make the rather self-defeating argument that natural law or a bit of it is in fact already positive law. The trouble is that Finnis provides only very general views that could easily be used to justify very different law systems, with the exception of the most obviously absurd and arbitrary ones. Concerning the issue of property rights a usual subject of controversy, he cites Aristotle, who wrote that “property ought to be common in a sense, but privately speaking generally...possessions should be privately owned, but common in use; and to train the citizens in this is the special task of the legislator”. If that wasn't sufficiently vague, Finnis adds that “the analyses put forward in this section, even when they are applicable on issues of current political debate in the reader's community, are not to be taken as if they were intended as a contribution to any particular such debate” (Finnis, John: Natural Law and Natural Rights, Oxford University Press 1980, p. 171).
     As all modern defenders of natural law do, Finnis does not pretend that even his highly general remarks would be acknowledged by all men as truths written in their hearts. Nevertheless, he argues that after all it is the same in science because -he asserts- all sciences rest on some epistemic principles that are indemonstrable. He cites Aquinas, who wrote that some propositions are self-evident only to the wise (op. cit. p. 32).

Collective goals dictated from above
     It is interesting to realize that for all their differences, positivism and naturalism tend to converge to similar solutions. The former relies on the views of legislators, the latter, at the end of the day, on those of philosophers and wise men. Both authorities will tell us what in their views is good not just for themselves but for the community. Appeals to the political power or to the opinions of wise men are different from appeals to an order that allows individuals to pursue their own goals.
     While positivists reserve the job of granting and taking rights to legislators, natural law champions add above them the pronouncements of sages who will find for us indemonstrable principles that they will be able, somehow, to uncover. In modern times it often means the opinions of Harvard, Yale, Oxford, and Cambridge professors repeated in a simplified form by hundreds of other sources. It isn't clear that their findings are better informed or have more sense than those of legislators.
     There is another problem with naturalism, totally independent from the issue of the soundness of the opinions about it. The fact that we talk of natural “law” should not hide that it is if it exists at all something that cannot be viewed as being as detailed as positive law and thus running parallel to it so that we can contrast them. It is true that in the past some philosophers thought that they could deduce a whole system of law from the study of human nature. But modern thinkers have abandoned that pretension. One may peruse the many volumes written by John Finnis perhaps the most lucid modern defender of natural law without finding a clear-cut answer to any of the controversies that divide people today. I am not saying that Finnis's insights about the proper ways of reasoning about moral issues are useless. Nor am I saying that his remarks about what factors should be considered when pondering about, say distributive justice, have no point. But it is undeniable that they could be used to support too many answers, leaving outside only the most obviously wrong ones. The same applies to other philosophers and law scholars. As long as they remain abstract and indeterminate, they command assent; as soon as they try their methods in order to yield a direct answer, they became controversial and dubious.
     Law philosopher Pauline Westerman wrote an insightful book on the history of natural law for which she chose the title “The Disintegration of Natural Law Theory: Aquinas to Finnis”. About the modern efforts to make natural law less open to objections she wrote “strictly speaking, the new theory of natural law neither has anything to do with law nor with nature” (p. 256) and “In fact, the more these theories are fortified, the less versatile they are in dealing with practical problems (p. 293)
     The trouble is that the very purpose of having a natural law distinct from positive law was to use the first to assess the second. And it is very little comfort to say that perhaps even very hazy natural law theories would exclude Hitlerite and Leninist immorality. Nazis and communist empire builders are not easily persuaded by lectures about ways of moral reasoning. We have to be able to deal with subtler deviations from justice, those that open the road to the worst ones. Once they have grown into gross arbitrariness, debate is usually pointless.
     That is because, as David Hume wrote “It is seldom, that liberty of any kind is lost all at once. Slavery has so frightful an aspect to men accustomed to freedom, that it must steal upon them by degrees”. Lord Macaulay was of the same opinion. He wrote that in medieval times deviations from the law had a check in the ability of people or aristocrats (or both) to rise up in arms against royal power, "Our forefathers might indeed safely tolerate a king in a few excesses; for they had in reserve a check which soon brought the fiercest and proudest king to reason, the check of physical force". While the weapons at the disposal of kings were not very different from the pikes and the swords in the hands of their subjects, there was a limit that rulers had to take into account. That changed with professional armies. Moreover, Macaulay argued, in pre-industrial economies civil wars destroyed huts, cattle, and a few castles. Recovery took a short time. But in highly developed economies the material losses are immensely higher and people become reluctant to risk them. It is for these two reasons, says Macaulay, that in modern nations even small deviations have to be promptly controlled. (History of England, Vol. 1 p. 23).
     A natural law that commands assent as long as its precise meaning remains uncertain is not very useful in that respect. And today there are attacks against rights of the more subtle kind, of the kind that, as Lord Macaulay advised, should be controlled before the issue is no longer about ideas but about force, no longer about arguments but about secret police knocking doors at night.
Natural rights against the rule of law
     The tradition of the rule of law has often been confronted, as Burke described, by abstract theories about natural law and the rights of man. In our own time, so-called second and third generation human rights to free education, to a job, to a basic income, to subsidized prices, are among the most powerful weapons against the rule of law. This is exactly what Burke warned against; legislating be it from Congress or from the bench on the basis of abstract reasoning.
     In Argentina, law professors waged for decades a relentless war against the liberal rules in the old Civil Code (“liberal” in its classical meaning). Starting from a few abstruse postulates (the unity of the illicit phenomenon, the theory of the “adecuate” cause) seasoned with Roman maxims never known as law in Rome, they turned the Code upside down. Already in 1968, they convinced a military government to amend the Code and establish that applying new laws to contracts signed before them was not really retroactive. Finally, towards the end of Cristina Kirchner's government they got their victory, the complete replacement of the old code and the enthronement of their doctrines in a new one.
     Unfortunately, too many law professors wax lyrical about the new rights that they discover in the Constitution and human rights conventions but they have little time for the old rights. The trend includes the federal Supreme Court, which has recently published a summary of the cases the Court sees as more relevant in its record, covering the period 2003-2016 (link to the document, in Spanish). The report has a chapter on cases about “Fundamental Rights” which does not include property among them. In turn, we find special chapters on social rights, economic rights, environmental rights, union rights, collective rights but not one about property rights.
     Yet there have been very relevant cases on such issue, though there is very little to boast about them. In 2002 a Peronist government started confiscating people's dollar bank accounts and giving them bonds in exchange —which was done with the approval of most of the opposition. When the Court declared it was against the Constitution, Congress removed some judges from the Court and appointed new ones. In 2004 the new majority in the Court reversed its previous decision —now taking the dollars was right. In 2013 the same “revamped” Court rejected the claim of a man who tried to defend his private retirement account against its confiscation by the government. That case sealed the fate of the whole system of private pension funds which then were taken by the government. None of that comes out of mere chance or whim. In order to pay for the myriad of new special rights, the old ones must be looted.

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.