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.