Argentina: ideas that erode the rule of law

Note: after the floods that affected La Plata –the city where I live– in April 2013, I have added entries to this blog at a slower pace. Moreover, I thought it very necessary to dedicate time to a number of articles in my Spanish blog about the massive changes that Cristina Kirchner's government is making on Argentine legislation.

It has occurred to me that a reader of this blog might find it surprising that so many of my articles are dedicated to political and economic doctrines, and not to legal issues. Of course, there are a good number of articles dedicated to the very notion of the rule of law and to confront its distortions. But then, shouldn't I limit the scope of my observations to law? Is this blog the proper place for discussions about moral relativism, interventionist economics, or about the true legacy of Adam Smith? How do such issues relate to the subject of the blog?

There are two reasons that have decided me to include articles that might seem unrelated to the rule of law. One is accidental, and perhaps superficial. The other is fundamental.

My job

As to the first reason, I must say that as a law clerk working for the Argentine judiciary, I should refrain from giving my opinion about cases that may have to be decided by my superiors. Strictly speaking, that restriction does not apply to the legal controversies that have a bearing on the scope and effectiveness of the rule of law. Even judges –to whom the duty of discretion is more severe than for mere helpers like me– publish now and then their views about past legal rulings –and their conclusions are not uniformly favorable. Nevertheless, it is considered unwise for them to switch too frequently between the roles of commentators and judges.

Certainly, I'am not a judge, so I am bound by good sense and moderation, but not by the stricter rules that apply to judges (which sometimes they disregard). I am a lawyer working as a drafter for the judges of the Buenos Aires Province Supreme Court (i.e. a state court, not the federal Supreme Court). Unlike most high courts in the world, those in Argentina have staffs of hundreds of lawyers in charge of drafting their rulings. This is because in each weekly seating, an Argentine Supreme Court (state or federal) may typically decide more than 100 cases, that is many more than those decided by the US federal Supreme Court in a year. In turn, this is a result of the fact that, unlike most courts in the world, Argentine high courts interpret the constitutional and legal limits to their reviewing powers as binding only for normal cases, and not for those they consider exceptional where the error the judges want to correct is –in their opinion– too evident, arbitrary and not simply mistaken. This means that the federal Supreme Court itself decides when it is bound by the constitutional clauses that limit its reviewing powers to matters concerning federal laws and when it may leave those restrictions aside.

In fact, the powers of high courts have become discretionary; they lack even any self-imposed ruling principle, as was freely admitted by Genaro Carrio, a former President of the federal Supreme Court in a book he dedicated to its extended, self-created, new jurisdiction. Certainly, such new powers mean more work, and Argentine high courts have ended up with huge teams of drafters, coordinators of such teams, and two or more levels of reviewers of drafts before they are sent to the weekly meetings. The sheer number of sentences issued by the same court and the possibilities of contradictions among them has led the federal Supreme Court to include a Coherence Office ("Sección Coherencia") within its large structure.

So, until I retire, I can deal only in general terms with issues that may be put to the decision of Argentine courts. That is the first reason why I have broadened the scope of my blog.

A deeper reason

But there is a second reason, one that goes deeper into the issue and has nothing to do with my professional situation. It is my conviction that attacks against the rule of law are seldom if ever motivated by legal technicalities, theoretical doctrines about the nature of interpretation, or about the scientific status of jurisprudence. There are always at play political and economic agendas that cannot be pursued without trampling on the rule of law. Unless one tackles that cause it is of little use to complain about the consequences.

That is why in defending the the rule of law, I don't simply confront the legal theories that distort its meaning or belittle its value –as I did in my four articles about Joseph Raz. I don't simply challenge the arguments of those who teach that ownership is a myth –as I did in my seven articles about Nagel and Murphy's book. I must also deal with the political and economic theories that move these writers to erode the value, extent, or meaning of the rule of law.

That is why, for instance, I decided to write an article about Nobel Prize winner Amartya Sen's claim that Adam Smith actually favored state intervention in the economy, education provided at not cost, and "income creation" by governments. That is why in one of my articles about Orwell, I wrote that the general ideas prevailing in a country are much more important as a basis for the rule of law than the declarations contained in constitutions. After all, though the Argentine federal Constitution bans so-called "forced loans" to the government (a wise clause that is the product of a long history of abuses) it didn't prevent the two parties that have governed Argentina for many decades from imposing "forced savings" –savings that of course have to be paid to the government and are returned later at their nominal value in a highly depreciated currency. The federal Supreme Court has always rejected the challenges raised against these laws.

That these measures have been accepted by the population without much complaint cannot be properly understood unless we take into account that, for instance, schools have been teaching Argentine youngsters for more than half a century that civil and economic liberties are unrelated, and that restrictions to the latter do not undermine the former. This is one of the lessons that I remember from my book of elementary civic education. It already looked odd to me at that time.

Certainly, the original text of the Argentine Constitution comes from a time when economic freedom was understood as a requisite for progress and indeed for liberty in general. But many decades later, in 2002, the clause in the Argentine Constitution that states that property is inviolable (art. 17: "La propiedad es inviolable...") didn't stop the government from taking the foreign currency saved by people in their bank accounts. The federal government even took the dollars that belonged to one of the provinces that compose Argentina, San Luis –other provinces had followed the advice of keeping their money safely abroad. This is as if the federal US government took Texas's money! When the federal Supreme Court ruled that such takings were unconstitutional, Congress accused the judges of having been subservient to a previous government, removed some of them and appointed new ones...who in due time ruled that everything was according to the Constitution.

I would leave to the reader the not very complex task of passing judgment on those proceedings. But I must mention the fact that in Argentina, few people saw anything noticeable in such changes; even law scholars found no reason to raise an eyebrow. A renowned professor, the late Augusto Morello, a teacher of many generations of lawyers and judges, wrote in praise of both court decisions –i.e. for and against the claims of people concerning their dollars– because regardless of the outcome, what mattered in his view was that in both cases the federal Supreme Court "delineated the torso of reality" (Morello: The Supreme Court in the Political System, p. 101).

What is surprising in these an similar examples isn't merely the nature of the government's measures, but the lack of reaction. In particular, the deafening silence of most academics is revealing of the general ideas about law, morals, and the limits of state action that prevail in Argentina. Express support like that of Professor Morello is not characteristic. Rather, it is the uncomfortable acquiescence; at most, the ironic comment followed by the assertion that all that is inevitable.

That is why I think that those of us who write about the notion of the rule of law must not restrict their comments to those instances where pernicious doctrines have led governments to trample on it, but must deal with those doctrines themselves. This is what Hayek did in The Road to Serfdom.

Moreover, in Argentina, and I suspect in the rest of South America, these doctrines frequently come ready-made from abroad. Professor Roberto Gargarella who teaches Constitutional Law at Buenos Aires University, is a promoter of the Analytic-Marxist creed of the British philosopher G. A. Cohen, and made postgraduate studies in the United States under Cass Sunstein. Argentina's most influential criminal law academic, professor Eugenio Zaffaroni –recently retired from the federal Supreme Court– is a follower of Michael Foucault, whose work he has made the dominant inspiration for scholars and policy advisers in that field. Zaffaroni was a member of the Convention of 1994 which –among many other things– incorporated positive discrimination into the federal Constitution. From their professorships in Britain, Gramscian theorists Ernesto Laclau and Chantal Mouffe provided ideological inspiration and support to the present government in Argentina. Ronald Dworkin's opinions has been cited by our highest courts in support for some of their most decisive rulings, and a book seller tells me that Spanish translations of his books sell very well among students, lawyers, and judges. On the other hand you wouldn't find a translation of any book written by Hayek (I have never seen a translation for sale; I just checked on the biggest online bookstore in Buenos Aires: no results).

       So again, if one must go to the source, one cannot stop at the local echoes and consequences of ideas. One must deal with the ideas themselves.