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.
