China and Great Britain, two misleading comparisons

I have been following the instructive debates held under the name Intelligence squared, in which two teams of experts and academics argue for and against a proposition. The public votes both before and after the debate and the questions. A number of those debates have been dedicated to the advantages and disadvantages of democracy. There was one that questioned whether Democracy is India's Achille's heel. Another debate was, One size doesn't fit all: Democracy is not always the best form of government. Yet another one under the title Democracy, even the best ideas may fail. There was a very heated exchange when the issue was, Better elected Islamists than dictators.

In one way or another, all these debates were about democracy, and in particular, its pros and cons for developing countries. Unfortunately, in most of them the idea and the value of the rule of law have been neglected or confused with the advantages of having a democratic government. That was clear in a debate about whether Western liberal democracy would be wrong for China.

First misleading comparison: development in 19^th century Britain vs 21^st century China

Arguing against democracy for China, one of the panelists said that in our time China has far surpassed the speed (the annual rate) of the economic development achieved by Britain in the 19^th century. That was said by Martin Jacques, senior research fellow at the London School of Economics, former editor of the journal Marxism Today, and author of a book about (or rather against) Margaret Thatcher. More recently he has written a best-seller book which in its title gleefully announces The End of the Western World and the Birth of a New Global Order, a world ruled by China. Right from the beginning professor Jacques extolled China's spectacular growth, which he linked to the wise direction of the Communist Party. He has seconded in more moderate tones by Zhang Weiwei, a writer and a member of a Chinese think tank who, perhaps not very consistently, acknowledged that he prefers to live in Paris.

The point about the growth rate came in answer to another Chinese panelist (on the other team), Anson Chan, former Chief Secretary of Hong Kong and campaigner for democracy. She had said that, after all, China wasn't the only country that achieved fast economic development, and she mentioned the case of Great Britain in the 19^th century. Her argument was in turn answered by Martin Jacques -already mentioned against democracy- who corrected her and said that the rate of growth was different, much faster in the case of 21^st century China.

It is a pity that nobody pointed out to him that comparing rates without comparing times and circumstances is absolutely flawed.

People in Great Britain had to develop techniques, improve steam engines, experiment with turbines, design more efficient steel furnaces and mines. They had to apply new inventions to ships, making them bigger, faster, and safer. They have to design locomotives. They had to establish telegraph lines, build railways, and learn how to control electric power. Of course, there was trial and error, inventions that never worked, and wasted effort. In the background we have the miraculous development of science, the study that went from Chemistry to the movements of the stars.

In the late 20^th century and at the beginning of the 21^st century, China didn't have to go through the same process. They can always make use of the latest turbine, they don't have start with the steam engine. Then can make use of modern chips, they don't have start with Babbage's wheels. They don't need to create the mathematics and the physics that help to establish the best designs. They can transfer all that in one go. Moreover, they had at their disposal the the know-how, and sometimes even the capital of Western entrepreneurs. To say triumphantly that in those conditions their rate of growth was faster than that of those who had to create and try everything from zero shows a lack of historical perspective that is alarming, but perhaps not surprising, in a scholar from the London School of Economics. Certainly there has been remarkable economic growth in China in the last three decades, but even if it had been twice as fast it could not reasonably be compared to the industrial revolution.

Second misleading comparison: limited democracy in 19^th century Great Britain

Professor Jacques pointed out that not everyone could vote in 19^th century Great Britain. As with the rate of growth, that is true but very misleading. Apart from that fact that at least there were different parties contending for the vote, the argument leaves out the rule of law.

In Great Britain, long before the franchise was extended to everyone, there was habeas corpus, property was safe from expropriation, disputes were decided by independent judges according to non retroactive rules, and there was freedom of speech.
      The team against democracy argued that China would collapse under multiparty democracy (what is one-party democracy?). But what about the rule of law? Would China collapse without censorship? And if so, why?

It is very sad that so many debates focus on the vote, and mention the rule of law only as a complement that more or less comes together with democracy. Indeed, if one had to find a ground, a link to something that would explain the extraordinary improvements and creativity that flourished in 19^th century Britain, it would be the rule of law. Because of it, though not everyone could vote, the government could do very little damage, it could not thwart a man's attempt to improve his life and that of his family, and it had very limited means to direct what an entrepreneur would do.

Very often in these and other debates, the rule of law is conflated with democracy, thus making it true by definition that establishing the vote is a sure means to establishing the rule of law. Of course, it is not. Indeed, as Friedrick Hayek has pointed out, the modern idea that “the law” is whatever the majority passes as such, derives its convincing power from democracy and majority rule. By the way, constitutions make very little difference on this issue because they only require a qualified majority. Witness Latin America and its ever changing constitutions. Whenever the notion that majorities can make and remake laws and constitutions at their pleasure spreads, when it is held that right is only what a majority recognizes as such, then the rule of law is dead.

So perhaps a better argument for the panelists who argued against the assertion that “Western liberal democracy would be wrong for China”, would have been that apart from not establishing democracy (i.e. free elections), China has made very little progress towards the rule of law. That is a major difference with 19^th century Great Britain.

I would say that the question itself chosen for the debate was framed in a misleading way. It might imply that more than the vote was meant. But it also implies that “Western”democracy is merely one of the many varieties of democracy. It implies that there is some “Oriental” variety, with contours that are best kept vague. Such has been the claim of many enemies of democracy: Oh yes, we have democracy, except that we understand it differently. Such was the claim of the leaders of the “socialist democratic republics” of the former Eastern bloc and of many of their fellow travelers in the West. We shouldn't hear the same argument again without answering it.

The cultural argument

As an aside, it is interesting to mention that the British academic -who argued against democracy for China- played the argument of respect for a different culture, and said that we have to “think out the box”, that we don't understand Chinese history and attitudes, that we must not judge others from the point of view of “our Western jail”, etc. This kind of argument almost always wins among Western audiences, in which the call to suppress judgment about different cultures seems to activate a Pavlovian reflex. Nevertheless, in this debate the argument failed because there was actually a Chinese woman in the team arguing for democracy. Probably it seemed odd that a British academic would tell her that she doesn't understand Chinese attitudes.

Carlos Santiago Nino on social and economic rights

In my last article I made some comments on the too easy dismissal that Argentine philosopher Carlos Santiago Nino (1943-1993) made of the idea of spontaneous order. Nino's ideas have been very influential; he advised President Ricardo Alfonsin in the 80s, and his books have been required reading in Law Schools for many decades. He wrote about Ethics, Constitutional and Criminal Law. Nino was what Americans call a liberal; he presented philosophical arguments in support of strong State intervention in the economy, even to severe limitations to property rights. He advocated social and economic rights. Though Nino was aware of the many Argentina's ailments -more pointedly in his book A country outside the law- the measures he recommended seem to stop half of the way to a real answer. Though he acknowledged the damage caused by restrictions and regulations issued by Argentine bureaucrats, though he recognized that they distorted economic life, Nino opposed deregulation and suggested replacing today's mess of decrees with a rational regulation. Aware of the executive branch's domination over the judiciary in Argentina, Nino suggested a separation between ordinary courts and a constitutional court, hoping, he said, the the latter would have a higher view of policy issues (1). It seems to me that the arrangement he suggested might crystallize the domination of politics over the judiciary.

Today, most Argentine academics have moved to the left of Nino -or perhaps we should say that they have traveled further on the same track. His main disciple, Buenos Aires University professor Roberto Gargarella, is a promoter of Analytic Marxism, a school of thought that tries to use the methods of analytic philosophy to support Marx's theses. Nevertheless I would say that Nino prepared the ground. Indeed, we will see that Nino's main argument for social and economic rights has deep roots in Socialist and Marxist doctrines.

Social and economic rights as a natural extension of individual rights

Nino's main strategy was to naturalize the idea of social and economic rights, to deny that there is any significant difference between them and classic liberal (in the original sense) rights. He wrote that social and economic rights are simply a natural extension of those older rights. Moreover, he protested against the very names used to distinguish both kinds of rights. After all “social” rights aren't enjoyed by groups but by individuals, as any other right is. Nino wrote that much like those traditional rights to life and personal integrity which protect conditions necessary for personal autonomy, the new social and economic rights protect further conditions to it. (2)

Again in an effort to reject that there is any relevant difference between older rights and social and economic ones, Nino criticized Hayek's idea of spontaneous order. I have dedicated my previous article on Nino to criticise his criticism. I would only add that, like Murphy and Nagel argued in their attempt to bust The Myth of Ownership, Nino said that both old and new rights demand State intervention. Government has to spend money on handouts and subsidies, but it also has to spend on police and tribunals to protect traditional property rights (3). I think that in my articles about Murphy and Nagel's book I have shown that this argument is sophistic (link). Both traditional and new rights are protected by policemen and judges; the pockets of those who receive government aid are protected as well as the pocket of everyone else. But on top of that, social and economic rights require a government's intervention for their very existence; money has to be first transferred and then protected. The sophism gains its apparent convincing force from the suggestion, always implied though never openly stated, that while traditional rights demand some kind of State action, newer ones demand another kind of intervention -so at the end of the day we are just dealing with different ways in which governments spend money. What is overlooked is that social and economic rights consist of resources or advantages given by governments, which afterwards are protected by policemen and judges as any other right is.

There is a mistake too in Nino's protest against the distinctive names given to these new rights, ”social and economic”. He says that they are simply rights as any other, enjoyed by individuals and not by groups. Yes, but they enjoy them because they belong to a social group. Laws and regulations may give advantages and money to those whose earnings are below some minimum, or because they belong to a minority race, or to a union, etc. Being inside or outside those groups is what determines who will enjoy those rights. Moreover, they are given as a result of a collective decision. If one decides to overlook these differences (!), one may say with Nino that after all they are enjoyed by individuals, as any other right.

Actions and omissions

Nino's most distinctive contribution to the fusion (or confusion) of social and economic rights with traditional rights is his attack on the distinction between actions and omissions. He acknowledges that everyone intuitively distinguishes between shooting and killing someone and not giving food to people in need, which may also result in death. Nevertheless, Nino says that this is just positive morality -that is, morality actually held by people- and that it is one of the tenets of liberalism that every social practice or convention must be subject to criticism (one might point out that this tends to apply only to Western traditional values, but we may leave that point aside). Nino claims that there is a prejudice against omissions and that there is no logical way to distinguish them from actions (4). Both are conditions to results.

Nino reminds us that in certain cases we blame people for their omissions. For instance, a mother who fails to feed her child and thereby kills him will be blamed for it, while a neighbor who could have done it won't be considered responsible. This shows, according to Nino, that the notion of cause must be linked to the notion of duty. Therefore, he wrote, we must invert our usual way of thought: it is not that we have the duty not to shoot someone because it will cause his death, or that we have the duty of providing food to our children because otherwise they will starve. It is the reverse: we cause results that violate rights when we have the duty not to cause them, be it by action or omission.(5) This would prove Nino's point, that omissions and actions are the same.

I don't see the use of playing with the notion of cause. First of all, that we cause or not a result does not depend on our moral convictions. If a contractor builds a house, there will be a house, not matter whether building it was his contractual duty or not. A policeman who kills a criminal really causes his death, no matter whether it was his duty or not. What duties change is not the result and its cause, but whether we blame someone for it. And unless we are mad or have evil purposes, we don't decide whom to blame on whim -we blame the one who did it. We ask whodunit not who-do-we-like-to-blame.

But worse than Nino's treatment of the notion of cause is his neglect of an obvious and significant difference between actions and omissions. I can abstain from trespassing on any of my neighbors' property while I work in my garden; I omit murdering any man, woman, children, or beast while I read the newspaper; in fact, I respect zillions of property rights while I shave in the morning. But if I am required to perform some positive action, I cannot do other things at the same time.(5a) Moreover, if that positive right requires not only time but also resources, then I won't be able to use those resources for other purposes. Of course, as we assume that these duties are required by laws, decrees, and regulations, those purposes won't be chosen by myself. They will be chosen by those who issue those rules.

Taxes provide the illusion that a large number of positive obligations may be fulfilled at the same time. You just pay what government requires and then they will bother about priorities and entitlements. Nevertheless, governments cannot use the same resources twice. Positive duties always imply trade-offs that must be decided by authorities: should a dollar be used to increase nurses' salaries, subsidize some branch of industry, fund medical research, relieve farmers in debt, or what? So, it is not true that paying taxes allows me -through government- to do many things at the same time. Time and resources spent on something are not available for other government's purposes. And of course, that applies to my own purposes, as the money I pay in taxes cannot be used to pursue them. But one might say: at least, by paying taxes I won't be required to fulfill many duties towards lots of people at the same time, isn't it? At least my time will remain mine, isn't it? Not quite. Time is money, and money is time. The money I pay is the product of my time, and the time that it will take to me to fulfill my own purposes will depend, to a large extent, on the money that I can spend on them.

Nothing of what I said means that every tax is unfair, or that every government's activity can be replaced by private efforts. But it means that it is wrong to argue, as Nino does, that actions and omissions are equivalent, and that social rights are no different from individual rights. Nino himself seems to realize that too many positive duties to provide for increasing social and economic rights might result in less room for personal life choices and more power to authorities. However, as he often does, Nino's answer to this danger -perhaps the gravest one in politics- is that the right balance between positive and negative duties must be left to be decided by democratic debate. (6)

Certainly, there isn't much sense in asking in the abstract whether actions and omissions have the same moral value, regardless of what they might consist of. Nevertheless, apart from that misleading ethical puzzle, there is the political issue. When we come to consider the chances of liberty and of oppression, we must realize that rules requiring the performance of duties that will serve social and economic rights pose dangers that are very different from those of traditional rights. In that respect, I think that Nino was fundamentally wrong.(6a)

Socialist roots of Nino's argument for social and economic rights

Before Socialists and Marxists, liberty was understood as freedom from the oppression of men, be they kings, party leaders, or even majorities. Socialists and Marxists scorned that “burgeois” liberty and instead concentrated on the material conditions that may put limits to man's actions and desires. Their argument was (and with little variations still is): What is the value of freedom unless it is freedom from want? Karl Marx put a twist to it by saying that exclusive focus on material conditions was a requirement of the scientific method, and that all previous talk about rights and legal guarantees was either nonsense or worse, cheap propaganda paid by the representatives of the bourgeoisie.

Nino does not use socialist phraseology, but he lumps together classic freedoms and material conditions. He argues that we must combine liberty and equality and pursue an equal distribution of liberty (7). Of course, it doesn't make much sense to pursue an equal distribution of the freedom of speech, or the freedom to work, or of traveling wherever one chooses, unless one has in mind a distribution of the material means that are spent on and gained from the exercise of those freedoms. And that is certainly Nino's idea. He wouldn't agree with Edmund Burke's classic summary of the meaning of English liberties: we have the same rights, but not to the same things.

Instead, for his equal distribution Nino adopts Rawls's scheme (8), inequalities can only be justified if they improve the condition of those who have less, which -as Rawls requires- doesn't mean simply to improve to some measure, but improve more than any other distribution.

Ideas, especially bad ones, have consequences

No better place than Argentina to reveal the consequences of bad ideas. With few and scattered exceptions, Argentine writers and academics have been promoting every distorted doctrine that they have found abroad, and that for almost a century. The results are for everyone to see.

After so much labor from so many people to promote a new, twisted, collectivist understanding of the notion of liberty, it isn't mere chance that when in 2013 the Argentine Supreme Court decided in favor of Cristina Kirchner's government in a case about a new statute that regulates mass media, they thought it proper to cite Nino's opinion (link to an entry with some comments on this ruling). The new statute limits the audience that a company can reach, so that smaller companies don't have to compete with bigger ones -or just more popular ones. The system creates captive markets that are closed to companies that have reached the limit. In fact, the case and the constitutional challenge was brought by a company that, before the new rules were enacted, had an audience that was well above the limit. This meant that the statute effectively required that company to shrink and to cease offering its programs to a portion of the audience. Some said that the in fact that was the only purpose of the new statute -the TV channels and radios owned by that company are very critical of Cristina Kirchner's government.

The Court's majority opinion said that free speech must be strongly protected, though the right of having that speech heard by others may be restricted by “more intensive” (the judges' words) regulations. But apart from splitting hairs, the judges said that, according to Nino, democratic consensus must be achieved by multiple voices, which must have equal capabilities to introduce their agenda. From that premise, they concluded that a democracy cannot allow some voices to predominate and thereby make the debate obscure (paragraph 23 of the majority's opinion). Then it is right to restrict the number of people that a company can reach, so that a small channel, or perhaps a government's channel not much favored by the audience, can have its own public. At this point, people themselves has become a resource that must be fairly distributed.

I think that it is most likely that Nino would have recoiled in horror at the sight of the consequences that others have drawn from his doctrines. On the other hand, I don't know whether he would have realized how much his doctrines eased the way to those consequences, perhaps even made them possible.

(1) Un país al margen de la ley 2005 (A country outside the law –published after his death) p. 205.

(2) Fundamentos de Derecho Constitucional 1992 (Foundations of Constitutional Law) 398.

(3) Op. cit. p. 399.

(4) Op. cit. p. 399

(5) Op. cit. p. 190.

(5a) New footnote: In one of his lectures, Nino briefly mentions this objection regarding time (but not costs); nevertheless, that doesn't make him change his position and he sticks to the Rawlsian scheme (Ocho lecciones sobre ética y derecho -Eight lessons on ethics and law- 3rd lesson).

(6) Op. cit. p. 403.

(6a) New footnote: Nino also deals with actions and omissions in his book Etica y Derechos Humanos (Ethics and Human Rights) p. 317 and relies heavily on Glover's book Causing Death and Saving Lives. Nevertheless, Glover acknowledges that actions and omissions should be treated differently in law, though perhaps not in pure morals (p. 61). As Nino is arguing for legal entitlements, Glover's arguments aren't exactly to the point.

(7) Op. cit. p. 188.

(8) Op. cit. p. 191.

Carlos Santiago Nino against Hayek

In Argentina Friedrich Hayek is often dismissed as a mere defender of privilege. But in the early 90's an academic, Carlos Santiago Nino, still thought it necessary to provide some arguments before rejecting Hayek's ideas. I would like to examine Nino's objections to the notion of spontaneous order.

Carlos Santiago Nino (1943–1993, link to the wikipedia) was an Argentine jurist and philosopher. He was very influential in the 80s, especially when Argentina returned to democracy after the defeat in the Falklands war. He became personal assistant to President Ricardo Alfonsin and coordinator of the Council for the Consolidation of Democracy, a body created by the new government for the purpose of designing institutional reforms.

Nino was what Americans call “a liberal”. He took the ideas of the academics that dominated the American and British universities –among others, John Rawls, Joseph Raz, and Jeremy Waldron– summarized them and made them popular among Argentine academics. Most importantly, in a country in which few people are able to read English, he put everything in Spanish. But he didn't just copy; though it is true that he adopted the theories that were already influential in American and British universities in his time (and remain dominant today), he was a capable thinker himself.

Nino accepted Waldron's idea that the moral justification for property rights must lead to a redistribution of wealth, even to limitations on the kind of goods that people are allowed to possess.¹ He endorsed the idea of collective rights², and made the usual objections against both the efficiency and the morality of free markets.³

From what I have written about Nino's mentors in this blog, it must be clear that I disagree with him. Nevertheless, Nino was much better than the kind of intellectual that dominates Argentina at the beginning of the 21^st century. While Nino provided arguments (flawed in my opinion) academics like Eugenio Zaffaroni use invective and scorn. Nino was under the spell of Oxonian Analytic-Philosophy. Professor Zaffaroni, recently retired from Argentine Federal Supreme Court, is an admirer of Michel Foucault. In fact Nino challenged Zaffaroni's theories in a very instructive debate. No academic seems able to find courage to do it today.

In the 80's, Nino's friend and like-minded liberal Genaro Carrió had a very civilized debate with Sebastián Soler, a “liberal” in the 19^th century sense. At the beginning of the 21's century, Soler is simply dismissed and insulted. The change in the ideas that dominate Argentine universities is made clear by the fact that Nino's main disciple, professor Roberto Gargarella, is a Marxist.⁴

Nino against spontaneous order

In his book Foundations of Constitutional Law (Fundamentos de Derecho Constitucional) Nino defended the notion of “positive” rights –sometimes called economic and social rights– that is, rights to a positive delivery of goods or services, usually from the government. In that context, he charged against Hayek's notion of a spontaneous order. He asserted that it was false and based on a series of confusions. Nino argued (I translate from p. 399) that “the market's order is based on the structure of property which, as it is obvious, is established by statutes deliberately dictated which validate certain acts of possession and transmission of goods -which may have not been recognized by them- and attribute to these acts certain rights and obligations -which may have been given different effects- statutes that establish punishments against those who interfere with those rights. Secondly, these statutes are enforced by courts and the police who are sustained by the product of the obligation to pay taxes. In the third place, the market works through contracts which demand statutes, courts, officials, and taxes to sustain them. In fact, to a greater autonomy of individuals it must correspond a larger State interventionism in the form of contract execution. And as more causes of contractual nullity are recognized, there will be less State interference, in the form of a negative to provide the public service of coercion to enforce those contracts”.

What is spontaneous order?

It is clear to me that Nino failed to understand Hayek's argument. First of all, he failed to see what is spontaneous: it is nothing less that the very activity that drives the life of a nation. Laws establish the formalities of contracts and how they are enforced, but they neither establish the purposes of these contracts nor the kind and quantities of things that people buy and sell. Statutes regulate the rights of inventors and innovators, but they neither create those inventions nor decide which of them will be successful in the market.

The French economist Frederic Bastiat pointed out that we should marvel at the fact that a big city like Paris is provided with all sorts of food, clothing for summer and winter, tools, bolts, cigarettes, and toys, without any authority's decision about how much fruit, flour, shirts, overcoats, pliers, and teddy bears are to be produced. Nobody decides how many trucks are needed to move all these goods. Nevertheless, they arrive in time, each one in proper quantities, and very little is wasted. That is the fundamental spontaneous order. That is the order on which the well-being of people, often their very survival, depends. But we don't marvel at it, it is so essential to our lives and so pervasive that we take it for granted.

Moreover, experience shows that it is precisely when authorities decide that they can impose a better order and take to themselves the task of deciding how much flour and shirts will be made that these goods become scarce and poorly made. Socialists of all parties seldom learn from these experiences; they don't stop and think about the odd fact that life went better without their orders. As they are unable to conceive that order might be spontaneous the only lesson they learn from disaster and hunger is that next time they will appoint better planners and regulators.

In Italy, Fascists thought that they had found a better way than marxists and socialists: production would be regulated by boards of employers and employees. They created corporations where each group in society (or rather, the groups in which they thought society was divided) had a place reserved, no matter how many votes they would have had in a regular election. That system didn't work either. Nevertheless, in Argentina a large number of people still believe that order would be better established if only the representatives of each relevant “sector” of society agreed to “sat down to a table” (that is the set phrase), have a talk, arrange their differences, and issue a plan that would secure everyone's well-being.

Plan by a single authority is bad; plan by committee is worse. What must be understood is that the problem is not how or by whom these decisions are made; the problem is that such order won't be spontaneous.

Furthermore, we must be aware that “spontaneous” does not mean “thoughtless”. There is much more thought and care involved in spontaneous order than in any plan or regulation. Except that they are the thoughts and goals of millions of people who interact and adapt to each other without anyone bossing them about and telling what they have to do.

Hayek wrote in his book Law, Legislation, and Liberty: “The possibility of men living together in peace and to their mutual advantage without having to agree on common concrete aims, and bound only by abstract rules of conduct, was perhaps the greatest discovery mankind ever made” (vol. 2, p. 136). That is the fundamental spontaneous order, the one that is defined by the fact that it requires no agreement on collective goals. Marxists, Nazis, corporatists, nationalists, and socialists of various kinds, thought (and still think today) that such common goals are indispensable. They can't conceive an order without them. So fundamental are they for these groups, their leaders, and intellectuals, that in default of agreement they are prepared to force people to adhere to their goals. That they describe them as national purposes, race world-views, or class interests, is –according to Hayek– secondary to the fact that all of these doctrines reject an order that is spontaneous and has not to be directed.

It is sad that well educated people and even academics like Nino fail to see that they get most of the goods that made life enjoyable –even possible– by an order that is spontaneous. The essential order to which Bastiat, Menger, and Hayek pointed out is not the system of laws, which of course they acknowledged, but the order that is established when millions of individual plans –each one different!– adapt to each other.

The legal system

But even laws and codes have much that is spontaneous. Nobody invented the notion of a contract, or of credit, or of paid services. Today we have laws about such things, but the practice, and the very concepts, originated long before those laws. Some people started exchanging food, firewood, or tools, and many others realized that they could improve their well-being in that way.

They started using some forms, some words, ceremonies, and written documents for their agreements. Some thought that it would be a good idea to produce things they didn't need, just in order to exchange them for goods they needed. That is the beginning of specialization and the division of labor. Many of them found that there are certain goods that are readily accepted by most people, goods that are easy to transport, and don't get spoiled by the passing of time. Whenever they were uncertain about their future needs, or whenever they couldn't find the products they needed, they chose to exchange their products for those goods, as an intermediate step. These were, with various degrees of success, chunks of salt, hides, spices, gold, silver, and many other things. That is, according to the Austrian economist Carl Menger, the origin of money. In time, laws established coins and much later, paper money. But contracts, wills, marriage, property, and money started spontaneously, as parts of an order that laws secured and modified but seldom (if ever) they created.

Socialists of all parties prise themselves for their realism, nevertheless they seem to assume that nobody exchanged berries for firewood, nobody left his cows to his children, before some authority called people from the villages and adjacent farms and told them that from then on they will have an institution called “contract” and another called “will”.

Those who write statutes and codes find these things already working; they settle some things, modify others, but seldom invent a new practice from scratch. Even in the introduction of the French Civil Code, the jurist Portalis wrote that “codes are made by time, but to speak more properly, one does not make them”.

1 See his Fundamentos de Derecho Constitucional (Foundations of Constitutional Law) p. 364.

2 Op. cit. p. 371.

3 Op. cit. p. 372-373.

4 A translator and follower of British Marxist Gerald Cohen.

Argentina, the rift between the Court and the President

At the end of her second term, Argentina's President Cristina Kirchner accuses judges, and especially the Supreme Court, of plotting against her. For their part, and after long years of awkward silence, some judges and public prosecutors seem to have recovered their eyesight and are investigating cases of embezzlement, money laundering, and abuse of power that reach the president, her son, as well as some very fortunate new millionaires who are said to be their front-men. On top of that, Alberto Nisman, the prosecutor appointed to investigate the bomb attack perpetrated in 1994 against the Jewish community AMIA building, accused Cristina Kirchner of plotting together with the Iranian government to cover-up the crime. Worst of all, the day before Nisman had to present his charges in Congress he was found dead in his apartment. The government never sent a word of solidarity to his widow and two little daughters.

All that is in the news. Nevertheless, the present rift between the federal judiciary and the President should not hide the fact that the Supreme Court has decided every key case in favor of Kirchner's government. It is important to set the record straight. Those who admire the Kirchner's regime will be less inclined to criticize the Court. On the other hand, those who deplore their government will be more realistic in their evaluation of the Court's role.

How the new Supreme Court was born

In December 2001 a civilian coup toppled President Fernando de la Rua. Congress was dominated by his enemies, both in the Peronist party and even more virulently in his own party, the Radical party (which, in Argentina, is a center-left moderate party). There was some haggling over the succession, and Argentina had 4 presidents appointed successively by Congress in 10 days. Though people in the streets demanded elections to replace the fallen government, it was decided not to risk it. Instead, and by an overwhelming majority, Congress finally chose the candidate who had lost the election against de la Rua, the Peronist Eduardo Duhalde.

The new government decided to take the dollars people had in their bank accounts. That was rather unexpected because, beside other grievances, the immediate motive for the protests against de la Rua -which led to his demise- had been the limits his government had imposed on the amount of cash people could withdraw from their bank accounts -limit that concerned cash, but not other ways of disposing of their savings. Instead, the newly elected government took people's dollars and gave bonds in exchange. A law to that effect was duly approved in Congress by the same combination of forces that toppled the former president.

Perhaps already longing the times when they protested against mere limits on cash withdrawal, many Argentines went to the courts reclaiming their dollars, and they won their cases. After a while, appeals reached the federal Supreme Court. The judges said that in taking the dollars, the government had violated article 17th of the federal Constitution which states that "property is inviolable". One of the first cases was "Smith" and it was followed by "San Luis" (link to the Court's site¹). This latter case was peculiar because it involved a provincial government suing the federal government in order to recover its dollars –the federal government had taken even the dollars that belonged to one of the states (provinces) that form Argentina. The Supreme Court decided in favor of San Luis.

By that time Eduardo Duhalde had been replaced by Néstor Kirchner, also a Peronist, elected president in 2003 with president Duhalde's patronage. In fact Kirchner had lost the election's first round, but then the winner –Carlos Menem– retired from the contest and Kirchner was appointed president without a second run. Meanwhile, with their decisions confirmed by the highest court of the land, lower courts were piling up thousands of sentences against the government and in favor of the right of people to their savings in foreign currency. Then Kirchner, again with the support of both the Peronist and Radical parties, decided to change the Supreme Court.

The new Court changes course

Then Congress accused some of the judges of the old Court of having been subservient to a previous (Menem's) government. Nevertheless, some argued that the real problem was that they had refused to be subservient to the new government. Under pressure, three of the judges retired –one argued “moral exhaustion”, another denounced an attempt against his life. Two others refused to retire and were removed by Congress, still dominated by the same forces that brought down Fernando de la Rua's government. The Attorney General, whose legal report to the Court had supported the saver's claims, resigned too and was replaced by a former Peronist minister. Newspapers, TV channels, and radio unanimously celebrated those decisions. Now Argentina would have a Court that would be independent from a previous government!

The first three seats thus emptied where filled by appointing judges Maqueda, Highton, and Zaffaroni (the first had been President of the Senate after the coup against de la Rua). The new majority in the Court reversed the course and declared that taking the dollars was according to the Constitution (case "Bustos" 10/26/2004). The judges used the occasion to harshly criticize the former decisions of the Court. They said that they had caused economic and legal chaos. They scourged the savers who had gone to the courts and had already recovered their dollars saying that they had obtained an unfair privilege. They criticized the economic measures of the two previous governments. They declared that the so-called property over dollars was “a big fallacy” and gave two reasons to support that conclusion (paragraph 9, majority's opinion):

1. Argentines don't earn their salaries in dollars

2. To exchange Argentine pesos for dollars in currency exchange offices was possible only in border countries, but not further away

I mention this reasoning because it is a good example of the kind of economic analysis often displayed by the Argentine Supreme Court. Certainly, the first argument should have alerted other courts around the globe of similar fallacies: Swedes don't earn their salaries in dollars, nor do Russians, Chinese, Japanese, or Lithuanians. They might be told that their savings in foreign currencies have been transformed into bonds by the force of a syllogism.

The second argument was considered by many Argentines a decisive proof of the fallacy. The Court simply repeated that piece of popular wisdom. I remember that a man told me that at Paris airport he had tried to pay for a cup of coffee with pesos, and that the waiter had refused them and demanded Euros. The man adopted that shrewd expression Argentines show in the many occasions in which they unearth such global conspiracies and told me that evidently the parity between peso and dollar had been a big lie concocted by banks and the media for more than ten years. Of course, he as well as the judges confused the readiness with which a currency is accepted and its exchange value. They didn't realize that they couldn't have paid for the cup of coffee with Swiss Francs, Yens, or Swedish Krona. Moreover, what was that supposed to prove? That all those currencies not accepted by waiters have no value, zero value? The waiter in the story didn't ask for a more favorable exchange rate, he simply rejected the foreign currency. I failed to convince the man that he was mistaken. No doubt, the savers failed to convince the judges.

Concurring with the majority, judge Zaffaroni, the closest to the new government among the new members of the Court, said that those economists who had given advice to the two previous administrations should be criminally persecuted.

After further places had been emptied, two new judges, Lorenzetti and Argibay, filled them. Then, the new Court in full ratified the precedent "Bustos" and again declared that taking the dollars was right (precedent "Massa"). But these two new judges weren't so assertive in their support to the government's right to the savings of the population. They produced very odd opinions: using only general words, judge Lorenzetti warned that it would be necessary to think carefully about the negative consequences of the Court's long tradition of "tolerance" (his word) for emergency laws that make inroads into property rights. He recalled the example of old cases in which, although in single dissenting opinions, a few judges firmly supported property rights. Nevertheless, he sided with the new majority.

Judge Argibay's opinion was even more peculiar: she explained at length why the presidential decree that commanded banks to give dollars in private accounts to the government was against the Constitution and even declared that the saver had the right on his side. Nevertheless, in a short final paragraph she said that for "institutional reasons" (her words) it was "prudent" (idem) to reject the claim. That was perhaps one of the strangest opinions ever issued in the history of the Supreme Court.

More perplexities were added when in 2007 the Court admitted –with one dissenting opinion– a claim for the dollars that had been deposited in a bank during the course of a trial (case “EMM S.R.L.”). It often happens that in a trial some party has to deposit money in a State owned bank, sometimes to pay for expenses, sometimes as a caution, etc. Money in those accounts cannot be extracted without authorization of the judge in charge of the case. In “EMM”, the Supreme Court said that the government couldn't take these dollars from their bank accounts without violating the Constitution. What was the difference with common bank deposits in dollars? The Court declared that judges have to protect the goods put under their custody –a duty which apparently they limited to such goods. And they added that if the government took those dollars, it would violate not only property rights but the independence of the judiciary.

In my Spanish blog I have included a detailed analysis of the Court's ruling². In short, we must conclude that in “EMM” the judges considered that their duty of protecting deposits in foreign currency made during trials was different from that other –which they must have deemed much weaker– of protecting dollars deposited in any other bank account, or of property in general.

The government takes retirement savings

A law passed in 1994 allowed workers to choose between a State managed retirement system and private accounts administered by companies known in Argentina by the acronym AFJP (Pension Fund Administrators, similar systems exist in many countries). While in the first scheme money enters a common fund that the government uses for many purposes besides paying pensions, in those privately administered ones each saver had an individual account. The law stated that money in those accounts belonged to each saver and that they could be left as property to heirs.

These private funds had invested in Argentine bonds –a law had forced them to do it–, so the future pensioners were among the main creditors of the State's defaulted debt. In December 2007, at the end of Néstor Kirchner's term, Cristina Kirchner was elected to replace her husband. A year later, she decided to take the retirement savings held by people in their individual accounts. In this way, together with many other assets, the government took possession of its own bonds and the debt was wiped out.

Some savers sued the government and in March 2013 one of these cases reached the Supreme Court (this was of course, the new Court). The judges rejected the claim³. Their decision is remarkable for its brevity, just three lines. The judges said that they shared the Attorney General's advice against the saver. Certainly, it isn't unusual that in very simple cases and for brevity's sake the Court just asserts that it shares the Attorney General's reasoning. But never before had a case of such importance been decided that way. Though the case directly concerned a single saver, in fact it decided the fate of about ten million future pensioners, thousands of millions of dollars, assets in Argentina as well as investments abroad, and in fact the future of the whole pension system.

Just three lines. And what was the reasoning provided by the Attorney General that the judges found so convincing? He said that though the law stated that savings in individual accounts in pension funds belonged in property to each saver, that wasn't really property, so the government wasn't really violating the Constitution's clause that protects property (art. 17 “...property is inviolable...”). Why wasn't it property? It wasn't because saving for future retirement was compulsory. Though such savings remained in a private account that the law distinctly declared as property, it wasn't money that the saver could use immediately, he couldn't touch it before he retired, and that proved –according to this argument– that the account in the pension fund wasn't really property.

The case received little attention in the media and only a few perfunctory articles were published about it in law reviews.

The battle for the control of mass media

In June 2009 Cristina Kirchner's government lost the legislative elections and therefore its hegemony in both houses of Argentina's Congress. Her husband and former president Néstor Kirchner had lost the elections in the most important province, Buenos Aires. Two months later, the government presented a draft for a law to regulate the mass media: television and radio. This was called “the mother of all battles”. As it was announced, the purpose of the law was to fight the few so-called monopolies that shared the biggest part of the audience in detriment of others –the State owned channel being among those less favored by the public. The government proposed to limit the number of viewers and listeners that each broadcasting company could reach, thus establishing a fair partition of the audience among them. The law was approved in Congress though most of the opposition chose not to be present. Nevertheless, as it has been the case in many other issues, their objections didn't concern the main points in the law and were related to matters of form.

A major media company, the Clarín group, sued in defense of its broadcasting license. After having supported the Kirchner's government for some years, they had become one of their main critics. The case finally reached the Supreme Court. By a majority of 4 to 1 (and 2 others in between, with partially dissenting opinions) the judges decided that the law was constitutional.⁴

The objections against the new statute covered both its main technique of dividing the audience among companies and the fact that it violated broadcasting licenses still in vigor. The law forced Clarín to “disinvest” (that was the word in the new statute), to shrink its size, well before its licenses had finished. As mentioned, 4 judges said all was unobjectionable, 1 said both things were against the Constitution, 1 said that though the main system was OK, the government had to wait till the licenses granted under the previous law had finished, and 1 also said that the government had to wait, but that it was better for the Court to postpone its decision about whether the system was constitutional till that time. That last opinion was judge Argibay's and was remarkable because there won't be any future occasion to discuss the matter. Judge Argibay must have understood perfectly well that, as all the other judges gave their views concerning the objections against the main system, the plaintiff won't have another chance to challenge the statute.

In total, there were 5 judges who said that the limits to the number of people who can view a TV channel or listen to some radio broadcaster don't affect freedom of expression. Judge Fayt said it did (judge Argibay dodged the issue). The majority's argument was that the size of the public anyone can reach isn't relevant. Judge Maqueda asked, isn't it true that the freedom enjoyed by a little local radio station is no different from that of a big media company? Both are free. So if a law forces the latter to shrink to the size of the former, freedom of expression in itself isn't violated. As long as some way of expressing one's opinions is preserved, there is no constitutional objection, only a matter of size. The majority said that as long as a media company isn't “asphyxiated” by regulation (their word, pages 11, 38, 94 of the sentence), freedom isn't affected.

Furthermore, the judges distinguished between what they called individual and collective freedom of expression. The first is simply the right to voice one's opinions. The judges acknowledged that in that respect, restrictions must be carefully scrutinized. On the other hand, there is a collective freedom: that of those who may listen to those opinions. In that respect, State regulation may be more “intense”(the judges' word, page 38).

The judges used yet another distinction: they said that there are two ways to fight monopolies. Government can suppress them if and when they appear, or –without waiting for that– it can regulate beforehand how people can access information so that they receive a well balanced stream of information (page 36). I have dedicated two articles to the Court's decision in my Spanish blog. There I argued that in fact, these aren't two different techniques, but two different goals. To monitor and shape the kind of information the population receives (checking whether it is fair and balanced, according to the authorities) is a goal very different from that –much more limited– of fighting monopolies. In his dissenting opinion, judge Fayt said that to replace people's judgment with that of the authorities is the essence of unconstitutional paternalism (page 338).

Judge Zaffaroni, always more prone to ideological pronouncements, concurred with the majority and said that nobody can doubt that the mass media has an influence on people's ideas, tastes, fears, stereotypes, aesthetic judgment, even people's language and existential goals. He said that dominant economic groups may make people more culturally homogeneous, in detriment of diversity. He concluded that in a time in which technology changes communication in revolutionary ways, a government that leaves that power to monopolies commits “cultural suicide” (page 77).

General indifference, no debate of ideas

Most Argentines have shown no interest in the cases here reviewed. Journalists have covered them as battles where the only relevant question is, Who is the winner, who has managed to impose his will? Though the Court's decisions are easily accessible on the web, journalists never cared to look at them and examine the reasons presented by each side. Only a few academics published some articles in law reviews.

The Argentine legal philosopher Carlos Santiago Nino, many times cited by the Court itself, wrote that Argentines suffer from anomie, a lack of interest about their own future.⁵ Nino died before any of these Court controversies took place, but in them he would have found ample justification for his remark.

This post is not the place to analyze why so many Argentines limit their attention to soccer. Nevertheless, I will add that even among politicians and academics, the debates seldom tackle fundamental questions. And when there is a rift, it often takes place between people who share the same fundamental view. They only dispute who is better prepared to realize it. People who have struggled together for power often become bitter enemies once they conquer it.

1These and other cases commented here can be found in full text in the Argentina's Supreme Court web site (in Spanish): www.csjn.gov.ar/data/em_econom2.pdf. This is a document that collects most of the cases related to emergency decrees and laws.

2http://arielbarbero.blogspot.com.ar/2011/04/area-de-reserva-vs-independencia-de-los.html

3Case R. 37. XLVI. RHE; ROSSI PABLO ARIEL c/ ESTADO NACIONAL - MINISTERIO DE TRABAJO EMPLEO Y SEGURIDAD SOCIAL Y OTROS Y OTRO s/AMPAROS Y SUMARISIMOS; 26/03/2013. Unfortunately, there is no direct link to the decision. Nevertheless, it can be retrieved from the search page of the Supreme Court: http://servicios.csjn.gov.ar/confal/ConsultaCompletaFallos.do?method=iniciaConsulta

4There are two detailed articles about this decision in my Spanish blog, as well as a link to the full text of the sentence (all in Spanish): http://arielbarbero.blogspot.com.ar/2013/11/conceptos-juridicos-del-fallo-clarin.html and http://arielbarbero.blogspot.com.ar/2013/11/derechos-adquiridos-y-ley-de-medios.html

5Nino, Carlos Santiago: Un país al margen de la ley [A country outside the law] published in 2005, many years after his death.

Argentina abandons legality, by law

Argentina's new Civil Code formally rejects the rule of law

     In October 2014 Cristina Kirchner's government enacted a new Civil Code replacing the one that had been in vigor since 1871. The old code was one of many magnificent legacies left by the generation that once made Argentina the 6th economy in the world. Now Argentines have decided to reject that legacy, formally, by law.
     In fact the old code had been rejected by Argentine doctrinaires long ago. Now that rejection has become a law, a new Code. This is the doctrinaires' final victory, the end of their long struggle against the principles of liberty protected by precise rules in the old code. As far back as the 1930s, coinciding with the shift of the majority of Argentine intellectuals from "old fashioned" liberalism to "modern" nationalism, statism, and interventionism, they started a relentless campaign for the abrogation of the old code. Their tactic was two-pronged: law professors promoted new imaginative interpretations of the old rules, more in line with the ideas they deemed progressive -and judges adopted them with gusto. At the same time, conscious that their constructions were highly dubious, they clamored for a new code that would truly adopt the new doctrines.
     For that reason, and during many decades, law students were introduced by their professors to a very odd scenario: they were told that a new and better code would soon replace the old one, but that such substitution would change nothing. Why? because the old rules -correctly interpreted- already coincided with those proposed to replace them.

Article 1066: old-fashioned freedom

     One of the most offensive principles in the old code was article 1066, placed at the very beginning of the code's section on torts (for non-lawyers: torts are actions against the law for which the wrong-doer has to compensate the victim, paying for the damages caused).
     Article 1066 stated that if you haven't done anything forbidden by law, then you couldn't be condemned to pay damages to anyone. That sounds pretty reasonable: if you keep yourself within the law, you are free from claims from anyone. How uncertain would you fate be it you couldn't be sure of that!
     Nevertheless, it had to go. The principle is squarely against the authoritarian statist doctrines that became fashionable in Argentina in the 1930s and still prevail.  Law professors such as Borda, Llambías, Alterini, Bueres (to mention only a few at the top of the academic pyramid) argued that it was unacceptable that the powers of judges and their desire to impose justice would be restrained merely because Congress had been slow in passing a law forbidding some action. Wouldn't it be better to allow judges the liberty to decide according to their good sense, beyond the law, and enlightened by the new doctrines about a modern society's needs?
     The reader may have noticed that this new liberty for judges means an equivalent lack of liberty for the common man.
     Following another line of attack law professors complained that it was too cumbersome to require a law in order to make something illegal, as did article 1066 of the old Civil Code. Why not a presidential decree or a regulation issued by some ministry? In the old times, before statism seized Argentina, it was thought that the president alone -much less his ministers- couldn't make something illegal thereby forcing anyone to pay damages for it. But that restriction was considered inappropriate for modern times, a relic from the 19th century, from the times of the much detested liberalism. It had to go.

An illusory safeguard against arbitrariness

     The new code was enacted in October 2014 and will rule Argentina starting in August 1, 2015 -though some judges couldn't control their excitement and began citing its provisions even before it had been approved by Congress. 
     The new code removes the hated restriction on the powers of judges: now they can condemn people to pay damages without even asserting that they had violated any law. Nevertheless, people are told that it doesn't mean that they are absolutely at the mercy of the good or bad sense of judges. There is a safeguard: an action that constitutes the exercise of a right cannot be considered a tort, and consequently cannot provide grounds for compensation. 
     That safeguard is considerably weakened by the caveat, also included in the code, that rights must be exercised according to the goals pursued by the entire legal order (including not just laws but also presidential decrees, ministerial orders, etc.). So you don't simply use your rights to pursue your own goals, you have to consider those of the legal order (whatever that may mean). This is an extension of the idea, long ago adopted by most Argentine doctrinaires, that property rights are "social functions" rather than individual rights. Now every right will be subject to the same limitation. 

The logical contradiction in the new code

     But even if we leave aside that weakening proviso about the meaning and substance of rights, the alleged safeguard involves a logical contradiction. I have written about it at length in a book (1) and in many articles in La Ley Law Review -one of the most prestigious in Argentina. To this date, no answer has been given, no way out of the contradiction has been shown.
     The contradiction is this: the new code states that one can be condemned without having violated any law, though not if one was exercising one's rights. But that may mean two very different things: 
      a) Do I need a right that I have purchased, or rented, or inherited from my parents, or that was given to me in any other way? That is called a "subjective right" in continental jurisprudence -a "title" is perhaps the closest common-law version. 
      b) Or is it enough that by "exercising a right" we mean that I do whatever isn't forbidden by law, that is, what we call "freedom"?
     The first alternative is horrible: it would mean that I could do only what is expressly granted to me. Nobody has dared to openly defend that monstrous system. 
     The second alternative is more reasonable: it means that I can do whatever is not forbidden by law without fear of any claim against my pocket. But if the new code means this, it has returned by a circuitous and confusing road to the old system: to the much reviled old fashioned notion that there can be no tort unless one does what the law forbids. 
     The answer of the new code to this fundamental question about the powers of authorities and the liberties of people is -to say the least- uncertain. The principle that guards liberty in the old code is formally rejected. Nevertheless, a limit to judicial arbitrariness is provided that involves a contradiction: it means either that the old principle has not really been rejected, or that Argentina has inadvertently adopted a monstrous system in which everything that is not expressly allowed to people is forbidden to them.
     An idle logician might argue that the new system is still based on the rule of law: precisely on the legal rule that authorizes judges to condemn people who have violated no law. But by now we should have learned the lessons taught by Hayek: the rule of law has nothing to do with the fact that some majority has enacted some arbitrary rule.

Preserving legal concepts for future generations

Criticism of the new code has been limited to the many innovations it introduces in family law and concerning the manipulation of human embryos. The Catholic Church succeeded in their opposition against some of these changes. But the population as a whole has shown no interest in these limited debates. It was the same lack of concern they showed when in 1994 the Federal Constitution was changed. Then the innovations went from new rules for elections to new governing bodies for the judiciary. Reverse discrimination was made mandatory by the Constitution itself. But why should people care? What does it have to do with soccer? 
     During most of the 20th century, too many Argentines yawned while they were deprived of liberties that other peoples defended with their lives. In this new century, the changes that weaken the rule of law have received very little attention, even by academics. Or rather, law professors and politicians have celebrated the new code as the long delayed victory of their modern doctrines. But let's be clear: these are the same doctrines that were modern when first adopted in the 1930s, when Argentina's long decay started. It is no coincidence. 
     Though at present it may seem unlikely, nobody can rule out that in one or two generations (or in ten) there would be again in this land a keen concern for the principles of freedom. At that time, Argentines will need precise concepts, non contradictory reasoning, and a knowledge of history. Law is a complex science in which errors are paid dearly. We cannot progress if we disregard what past generations have learned. People cannot invent locomotives without knowledge of the wheel. I hope I may have contributed to preserve a portion of that knowledge for the future.

(1) Ariel Emilio Barbero: La Responsabilidad Civil. Volver a los límites del Código Civil. Ed. La Ley 2001. The book dealt with a proposal which, on the issue commented in the post, was substantially similar to the one now made into a new Code. In turn, that proposal had been preceded by similar ones along the decades. 

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.