Do International Conventions Prevail Over State Constitutions?

 In 2007 the Buenos Aires Province Supreme Court decided a case that shows how far international law has made inroads into federal nations (de Narváez, link to the decision in Spanish). At least in theory, Argentina is a federal country with member states (provinces) that have their own constitutions and local laws. Nevertheless, for more than a century the three branches of the federal government have greatly enlarged their powers at the expense of local authorities, usually without much resistance from them. Public opinion has remained indifferent to the process. In my last article I made general remarks about the issue. Now I want to illustrate it with a case in which a provincial Supreme Court invalidated a rule in the provincial constitution about the election for the post of governor, as being contrary to international law.

A clause in Buenos Aires Province Constitution (Art. 121 inc. 1) states that governors must have been born in Argentina, or -if born abroad- be the sons of Argentine parents (this latter provision contemplates the situation, not uncommon in our history, of political expatriates). The federal Constitution has the same rule for the post of President (Art. 89).

In 2007 the Colombian-born businessman Francisco De Narváez Steuer announced his postulation to the post of governor for one of the many branches of the Peronist party. Two small parties objected on the grounds of the previously mentioned rule. The issue reached the provincial Supreme Court which decided to invalidate the constitutional rule as being contrary to international law. Evidently, it means that international conventions are superior to state's constitutions. And as the Argentine federal constitution has the same rule for the post of president, one may wonder whether international law might prevail against it too.

As it is usual with cases that are decisive to the life of the nation, Argentine academics and jurists have payed no attention to that ruling. No review, no comment, for or against. The notion that there is no point in examining the legal arguments of a decision that is “final” -i.e. that there is no appeal from it- has been adopted by most Argentine law scholars, at least when the decision has deep economic or political consequences. Perhaps that comes from a misconceived "realism", and possibly also from an overcautious aversion to issues that might not be wholly advantageous from an academic point of view.

In a previous article I have made a summary of three federal Supreme Court's rulings of such kind (link). The legal arguments that supported those decisions received very little attention, not only from journalists, but also from law scholars. I think that such lack of interest is not prudent. Nevertheless, as I work in a humble position for the above mentioned local Supreme Court I cannot give an independent opinion concerning the case of the candidate for the post of governor. Still, I think it necessary to fill the gap in the information provided to the public, and at least point out the momentous relevance of the case -whether one agrees with the judgment or not.

The Buenos Aires Province Supreme Court invalidated the rule in the provincial constitution as being against Article 25.2 of the International Convention on Civil and Political Rights which states that

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions...(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.

In turn, Article 2 states that

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

It must be added that in 1994 the Argentine Federal Constitution was amended, and that along with many other innovations, a new Article 75.22 enumerates a number of international treaties and conventions from which Argentina cannot quit unless it is so decided by the vote of 2/3rds of the federal Congress' members. Among these hard-to-abandon treaties is the above cited International Convention on Civil and Political Rights.

Evidently, no law can alter the rights recognized in those treaties, unless of course it is voted by 2/3rds of the Congress' members. Although it is not exactly the same, one might also deduce that laws passed before these treaties where so elevated, must be considered automatically altered by the treaties. So has been generally understood by the courts. However, the federal Constitution doesn't answer the question whether those treaties and conventions are above the state's constitutions.

The judges give their arguments

Judge de Lázzari was the first to give his opinion, from which all the other judges dissented. He was the only one who said that there was no legal basis for invalidating the requisites that the provincial Constitution establishes for the post of governor. He pointed out that the Federal Constitution itself requires that candidates for the post of President be citizens born in Argentina, or if born abroad, be the sons of Argentine parents. Thus he reasoned that state's constitutions cannot be said to violate the federal constitution -not even indirectly- when they require exactly the same for the post of governor.

The judge added that the prohibition against discrimination in Article 25.2 of the International Convention on Civil and Political Rights is somewhat softened by the caveat that distinctions must be reasonable, and the dissenting judge found that the requisite in both the local and federal Constitution was reasonable.

Nevertheless, the majority of the Court followed judge Hitters vote, who reasoned thus: it is indisputable that local constitutions cannot contradict the Federal Constitution. The Federal Constitution elevates these treaties and conventions above normal statutes, so in a way they are incorporated into the federal Constitution. Therefore, if a state's constitution contradicts any of the rules in the treaties, it is as if it were against the Federal Constitution itself. He didn't answer his colleague argument -i.e. that the federal Constitution establishes the same requisite. This is customary in Argentine higher courts, where judges seldom mention the arguments they don't share. As a matter of courtesy, their votes run in parallel but never touch each other.

Judge Pettigiani joined the majority's answer but provided a different argument for it. He wrote that as Buenos Aires Province constitution forbids discrimination in very general terms, it must be understood that it forbids a form of discrimination that results from one of its own clauses. Therefore, the rule against governors born abroad must be considered as if forbidden by the same provincial constitution that establishes it.

The strategy of using one article to invalidate another article in the same constitution might seem odd to those not acquainted with modern methods of interpretation, but it has been used by renowned authors. Ronald Dworkin, much admired in Argentina and cited in this sentence, has argued that as the US federal Constitution forbids “cruel and unusual punishments” it may be concluded that it forbids states from imposing the capital punishment. To the objection that the US federal Constitution itself establishes that no one shall be deprived of life without the due process of law -a provision that would be contradictory if that punishment were forbidden by the same constitution-, Dworkin answers that the founding fathers might not have been aware that capital punishment is indeed cruel. They might not have realized that after banning cruel punishments, there was no need to provide procedural guarantees for the trial of capital crimes. Dworkin declares that at the very least the question is “open” which in his parlance means that it is closed to the states and must be finally decided by the federal Supreme Court (Taking Rights Seriously p. 135, also in Freedom's Law p. 291).

But we must return to our case. Judge Negri joined the majority although he based his answer on his own arguments. He declared that it wasn't unreasonable to interpret the prohibition against governors born abroad as if it didn't actually forbid it. And he stressed that Colombia, where the would-be candidate was born, was part of Latin-America, which the judge considered only a part of an unfortunately dismembered nation.

At the time the case was decided there were two vacant seats in the Court. Two judges from a lower court filled the empty places and they too jointed the majority's opinion. To the argument provided by Judge Hitters, Judge Domínguez added that according to the federal Constitution, only the federal government is authorized to pass laws establishing the the rights that pertain to citizenship. He didn't address the objection pointed out by judge de Lázzari: federal legislation -the federal Constitution itself-, establishes the same restriction. As said, that is the custom in our higher courts.

As a consequence of this decision, one must understand that international conventions -at least those that cannot be abandoned but by 2/3rds of votes in the federal Congress- are above local (state) constitutions. And as this case shows, that applies not only to traditional human rights issues, but to matters that influence the member state's elections and institutions.

Which international convention prevails?

Now we know that conventions prevail over state constitutions, at least according to this decision. But it must be said that the sentence also means that the International Covenant on Civil and Political Rights prevails over and renders ineffective a rule in another international convention listed in the Argentine federal Constitution. The American Convention of Human Rights (Pact of San José, Costa Rica) forbids discrimination but admits that the right to participate in government may be restricted “on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings” (Article 23). Although the issue was not discussed explicitly in their sentence, it is evident that on this point the judges in the majority assumed that the International Covenant prevails over the American Convention. Implicitly, the majority must have applied the principle known as “pro homine” which means that rules in human rights conventions shouldn't be interpreted as restricting others in other conventions or in local statutes that provide a more extensive protection to human rights.

So in order to allow provinces to enact a restriction not admitted in the Covenant, it is not enough to sign a Convention that admits it. The Covenant would have to be abandoned by 2/3rds of the members of the federal Congress.

There is an interpretation that might have made the Covenant, the Convention, and our constitutions compatible, but which to my knowledge has never been explored. As we know, there are multinational states. The former Yugoslavia is the most cited example, but there are many others. One might think that the prohibition against discrimination based on nationality for the post of high governing offices refers to nationals within a multinational state. So in the former Yugoslavia, Serbs, Croats, etc, should have had the same right to govern the country where they were born. Today, for example, Russians should not prevent Tatars born in the Russian Federation from reaching the highest public offices, etc. Nevertheless it might be argued that denying the post of president or governor to people born in a different country is not a violation of a basic human right. I am not sure whether this construction is possible. As I said, it was not explored in the case.

Conclusion

Though these issues remain indifferent to most of the public, one cannot discard that future generations might consider important to inform themselves about them -perhaps even to consider the legal arguments both of the majority and of the minority. Unfortunately, the task is not simple. As it happens with most judicial rulings, the sentence is very long and it is difficult for those untrained to separate the ratio decidendi from the obiter dicta. These two Latin expressions point out to a very important distinction. The former are the real basis for the decision, the latter are general remarks, opinions of the judges concerning issues not at stake in the case, etc. I have tried to sum-up the key arguments in a short space and have avoided legal jargon as far as possible. Certainly the sentence touches many more matters apart from question about the requisite for the post of governor that was controverted in the case. Judge Negri expressed his brotherly love to the Latin portion of the Americas, Judge Domínguez justly protested against the discriminatory fees that must be paid by foreigners who want to visit our national parks, and of course the sentence contains innumerable references to the decisions of federal and international courts. The public, which is the sovereign in democracies, should be able to distinguish what is relevant and what is not. They should be able to ascertain the consequences of judicial decisions. I see some hints that the public is starting to feel that not only prudence compels them to do it, but also the honest pride of living in a free nation.

International Law, a weapon for Federal Government against State's rights

Who is in charge of applying international treaties within a federal nation? The natural answer seems to be that it is the federal government. But that wasn't an issue when treaties covered only limited matters that were truly international in character, like navigation along rivers that stretch across many nations, etc. But what happens when federal governments sign treaties as a way to impose rules on matters that used to be reserved to the states?

When federal governments signed treaties meant to secure well defined fundamental human rights, nobody foresaw any possible clash with local states within each country's borders. But nowadays, international conventions bestow dozens of rights and entitlements upon everybody, from enjoyment of the environment, to the rights to a sustainable development, to participation in cultural activities. Does it mean that those international agreements transfer such matters to federal authorities?

That is what the Argentine federal Supreme Court seems to assume. Argentina is a federal nation composed of 23 provinces and one autonomous city, Buenos Aires, the federal capital. The arrangement resembles to that of the US to some extent, although the Argentine Constitution makes the federal Congress much more powerful than its US counterpart. In Argentina, the National Congress is in charge of enacting not only federal laws, but also “common” laws, that are uniform throughout the whole nation, covering criminal, civil, mining, labor, and pensions. Nevertheless, the federal Constitution says that cases arising on these matters will be tried in provincial courts which will have the final say on them (art. 75, section 12).

Today, that is no longer the case.

A power that already had few boundaries

Certainly, the Supreme Court has always been very generous in the interpretation of its own powers. Around the middle of the 20th century, the Court started to declare that the above mentioned rule has an unwritten exception. It decided that cases would't be settled by state courts, that on the contrary, the federal Supreme Court will have the last word whenever it finds that the local court's decision is not simply wrong, but arbitrary. That necessitated a difficult distinction between mere legal error and arbitrariness, a distinction that the court manages at its own discretion. Today, most of the cases decided by the federal Supreme Court -which includes the most significant ones- are of the kind that the federal Constitution reserves to state judges.

At the beginning there were a few timid warnings about this process of encroachment upon local autonomy. Unfortunately, most Argentines seldom show concern about matters of principle if the goal seems to lead to new and more generous entitlements and rights. Law scholars applauded every step forward taken by the federal Supreme Court, and cared little when it trampled on State's (“provincias”) rights.

With an awkward sense of humor that should have been reserved for lighter issues, the new broader powers that the Court claimed to possess have been grouped by law scholars under section four of Article 14 of the federal law that defines and limits the Court's powers (Law 48). Article 14 has only three sections.

A new weapon: international law

The previous powers of the federal Supreme Court -already almost unbounded- today seem small when compared with those that it receives from international conventions. The Court has established itself as the guardian of all the rights, guaranties, goals, entitlements, and pledges declared by international conventions. Of course, that means that the Court no longer needs to make use of old devices such as the “fourth” section of Article 14, and it can assert its reviewing jurisdiction citing solemn international declarations. Without completely abandoning the cherished imaginary clause that served the federal Court so well for such a long time, the Court now uses international law to impose its own interpretation of “common” statutes previously reserved to local courts. Nowadays the federal Court even reforms local rules of procedure.

The federal Argentine Constitution dates back to 1853, but Buenos Aires Province, by far the largest and most populated, joined the union in 1860. The federal system was adopted as a means to preserve local autonomy and put an end to civil wars. The Constitution declares that all powers not expressly delegated to the federal government are retained by the provinces (art. 121).

Without changing that arrangement, the federal Constitution was amended in 1994 by adding every progressive new right that the drafters managed to find in foreign constitutions and academic conferences. They made positive discrimination for elected positions mandatory, declared collective rights, provided that the federal Congress has to delegate powers to supranational entities, ordered cultural plurality, established consumer rights, and guaranteed a healthy environment to every inhabitant -among many other things.

Just in case they forgot a right or two, the members of the Constitutional Convention of year 1994 incorporated to the federal Constitution a number of international conventions on genocide, children's rights, women's rights, discrimination, economic, social, cultural rights, etc., and provided that Argentina could not get out of them unless a majority of 2/3 of all members of the federal Congress decided to do so (art. 75 section 22).

The federal Court set itself to the task of interpreting all these rules in the light provided by the Inter-American Court of Human Rights, but also of other international courts -even on recommendations of international councils and expert bodies. And it decided to impose its views on each one of the autonomous provinces that form the Argentine federation.

Amending criminal procedure

Apart from the its landmark decisions on criminal, civil, and social security issues (“common” law that still today is theoretically outside its reviewing powers according to the Constitution) the federal Court has established new principles that modify local rules of procedure, an area in which it seldom ventured before, as it is completely outside the power of federal authorities -be they judicial, legislative, or executive.

And yet, some years ago the Supreme Court started to require high provincial courts to review facts and evidence in appeals against criminal convictions. The Court imposed its new policy by invalidating sentences that didn't comply with the new standard (“Casal” case). That created havoc in those provinces that have public oral trials and laws that provide appeals limited to matters of law only. The new rules imposed by the federal Court forced many provinces to multiply the number of higher tribunals to cope with tasks for which they were unprepared. Still today, the provinces struggle to adapt the structure and number of their courts to the rules imposed on them.

Along the same lines, the federal Supreme Court has decided that judges that had ruled on controversies arising during the investigation of a crime (searches, detention, bail, etc.) could not decide on the final verdict of guilt or innocence (cases “Llerena” and “Fraticelli”). The Court argued that a judge that had authorized a search might afterwards be predisposed against the defendant, and find it difficult to admit that the person under investigation was innocent after all. However, in order to require provinces to provide different judges to such tasks -a matter that is clearly beyond the Court's or any other federal authority's powers- the Court had to base its decision on the fundamental right to be judged by impartial judges, which certainly is recognized by many international conventions. But in reality the Court never said that those judges that had decided about searches and bails were actually partial judges. It only claimed that a law system that provides different judges for such tasks and for the final decision about guilt or innocence is better at preventing the risk of having a partial judge. Nevertheless, all that the federal Court is allowed to decide is whether a judge has actually failed to his duty to be impartial -not whether a procedural scheme is better or worse at preventing such failure. In fact, the federal Court was redesigning local institutions.

Two problems

The wide range of issues that are covered by modern international conventions pose a challenge to federal states. Simply by signing treaties and conventions, the central government can encroach on the individual provinces (or states) that form the union. Federal authorities can always claim that all that they are doing is to fulfill the nation's new international obligations.

 But on top of that, there is a second problem when the advancing federal authority is the judiciary. While a legislature can plan its reforms so as to allow for adaptation, a court's decision is almost inevitably retroactive. While legislators enact the rules that will be applied in the future, judges decide whether rules have been violated in the past. Federal laws that invade local autonomies can at least be mindful of time and resources. But federal Court sentences that alter local rules, by their very nature, create havoc by demanding immediate compliance. They alter, not only the future, but also the present, and even the past.

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.

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.