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.

Rule of law: neither thin nor thick

This is the second article on the criticism that Joseph Raz directed against F. A. Hayek. Link to the 1st article

A false dilemma

     One of the most common ways in which thinkers mislead other people (often without meaning to) consists in presenting false choices between alternatives. When both alternatives are wrong, confusion is guaranteed.

     In discussing the notion of the rule of law, law professors have managed to create one of those misleading dilemmas. They tell us that we have to choose between a thin and a fat (or thick) concept of the rule of law. I think that both gravely distort the concept.

     Professor Joseph Raz, a law scholar at Oxford, is the champion of the thin notion. Most of his colleagues defend the fat version –among these, the late Tom Bingham, Lord Chief Justice of Britain. One kills the rule of law by starvation, the other by overfeeding.

     To sum up the choices that I will analyze, one can say that Raz’s thin notion reduces the rule of law to some formal properties, most of them related to trials and the work of judges, but without much content. So for instance, Raz states that the rule of law means that laws and statutes are clear -not vague-, that judges are independent, that judges have review powers over parliamentary legislation, that courts should be easily accessible, and some other principles. But apart from that, the laws themselves may have any content. Raz includes “the principles of natural justice” such as fair hearing and absence of bias as essential for the correct application of the law (of whatever content). As said, his principles refer mostly to procedure and the work of judges.

     The thick notion requires much more. Its advocates enumerate rights that laws must recognize so that a legal system can be said to uphold the rule of law. The list of rights may be shorter or longer according to the writer.

     In Raz’s opinion, those who support the fat notion of the rule of law make the same mistake people make with the notion of democracy: they often ascribe to it all the good characteristics they want to see in a legal system. By doing that, the notion becomes useless. Raz argues that we should not confuse the rule of law with the rule of good law. As we saw in the first article about his criticism of Hayek, Raz says that the rule of law must not be confused with democracy, justice, equality before the law, human rights of any kind, or respect for persons or for the dignity of man (The Rule of law and its virtue, page 211, included in The Authority of Law, Oxford University Press, 1979, reprinted 2002).

     Rather than a thin notion, I think that Raz’s is an empty notion of the rule of law. We've seen in the first article that Raz does not controvert Hayek’s account of the rule of law. He disputes the value that Hayek sees in it. In rejecting the fat (or thick) notion, he asserts that he is “following in the footsteps of Hayek and many others who understood ‘the rule of law’ in similar ways” (p. 211). I do not think that is correct; I think Raz failed to understand Hayek. Link to my article: Misreading Hayek.

Rule of law: not a blueprint for a constitution

     Hayek wrote that what people understand by “law” when they refer to the government of the laws is not any law that the legislature approves. He wrote in The Road to Serfdom that “The idea that there is no limit to the powers of the legislator is in part a result of popular sovereignty and democratic government. It has been strengthened by the belief that, so long as all actions of the state are duly authorized by legislation, the Rule of Law will be preserved. But this is completely to misconceive the meaning of the Rule of Law. This rule has little to do with the question whether all actions of government are legal in the juridical sense. They may well be and yet not conform to the Rule of Law…It may well be that Hitler has obtained his unlimited powers in a strictly constitutional manner and that whatever he does is therefore legal in the juridical sense. But who would suggest for that reason that the Rule of Law still prevails in Germany?” (p. 91, 50^th edition).

     That was written in 1944. In the preface he wrote in 1976 Hayek says that when he asked whether anyone would say that nonsense about Hitler’s government, he considered it a rhetorical question, only to find that professors Hans Kelsen (a very influential law scholar before and after the war) and Harold Laski (a British Labour politician) had maintained precisely that.

     So, not just any law is compatible with the rule of law. Not the edicts against the press of some Politburo or the confiscations allowed by the many Latin American permanent emergency laws and sanctioned by their courts. But then, what rules and rights? Too few or too many? Should we choose a thin or a fat rule of law?

    The choice is misleading, and in itself reproduces a fundamental mistake against which Hayek warned us. The task does not consist in making a list, short or long, of the rights we would like to have. Those who discuss whether “the rule of law” should include a shorter or longer list of rights have in mind a constitution. Our way of thinking in terms of constitutions and declarations of rights leads us to apply the same scheme to “the rule of law” but that is alien to the idea.

What rights are covered? All of them

     We received that idea from a long tradition of Western thought and practice. To a large extent, it is an English concept. A.V. Dicey was one of the most renowned English law scholars at a time when the notion of rule of law was still understood by English scholars. Therefore Hayek often refers to Dicey’s The Law of the Constitution (link to the full text ).

     When I say that the notion of the rule of law is no longer understood by many contemporary English law scholars I don’t mean to be disrespectful. I only mean that in their efforts to get a list of rights, judicial review, and possibly a written constitution, they have moved such a distance from English traditions that their way of reasoning is closer to that of German or American law scholars than to Dicey’s. Take for instance one of the most insightful and intriguing remarks made by him: he wrote that the British constitution is not the source but the consequence of the rights of individuals (The Law of the Constitution p. 121). That applies not only to John Smith’s right to his farm, but also to his right to vote at elections. Dicey says that in England the principles of private law have been so extended by the Courts and Parliament as to determine the position of the Crown and of its servants “thus the constitution is the result of the ordinary law of the land”.

     Law professors usually criticize English law because it lacks a list of constitutional rights. What they do not realize is that in the classic English understanding, all rights were equal, all had equal protection, all were constitutional. Or better, the distinction between constitutional and non-constitutional rights made no sense. If you had a right, a true right and not a wish or a privilege granted by some bureau, then it was part of the law of the land as much as the succession to the Crown.

Dicey tells us that “To say that the ‘constitution guaranteed’ one class of rights more than the other would be to an Englishman an unnatural or a senseless form of speech” (p. 119).

     It is also necessary to bear in mind that Dicey says that the principles of private law (contracts, torts, etc.) formed the basis of the constitution. In the continent, in the US, and probably in contemporary UK, the process is the reverse: we descend from public law to private law. In my country, Argentina, law scholars have been pushing public law principles into private law since the 30’s, and that is still considered “the modern trend”. Private law becomes less private each year, as it is mostly concerned with social goals, rights of minorities, and fair prices for consumers.

     So, what was covered by the rule of law in its original understanding? Everything; and the exceptions were viewed as such, as anomalies to be fixed or kept, but always suspected and distrusted. That laws ruled meant that all rights, be them contractual claims or the vote, were subject to general and abstract laws that described situations (buying a car, stealing a car) in which anyone could find himself at one moment or other. The question whether the list of rights should be short or long is nonsensical. Again, this is not meant to be disrespectful of the renowned thinkers who pose and decide that question in one way or the other. It merely shows that they refer to “the rule of law” in the same way in which they talk of a constitution or a human rights convention.

     The rule of law covers every right –the rights that I have, not the rights that I want to have. The house that I bought, not the one that I would have liked to buy. The right to apply for a job, not the right to force employers to hire me. As Edmund Burke said: we have equal rights, but not to the same things. That “the law rules and not men” means that these things belong to me by law, not because some official thought it best to adjudicate them to me. That right, and all the other rights that I have, and all the rights that people have, are the content of the rule of law.

     But then, what if we happen to live in a situation where for most people those rights are few, as were those of peasants in medieval England? What if some men have a right of life and death over some others? Is it not true then that –as Raz writes- the rule of law might in principle cover very little? Well, that is true in a most peculiar way: it is true if we think of a situation that is not true.

     Certainly, if we go back many centuries we find few and uncertain rights, but then we also find that there was little of what we know as the rule of law. Hayek's analysis does not refer to the Middle Ages, that is quite clear.

No historical coincidence

     By the time the ideal of the rule of law had developed, Englishmen enjoyed more rights (and more certain rights) than most other people, and no Englishman had a right of life and death over others. More importantly, that fact wasn’t mere historical coincidence. It wasn’t by chance that where law ruled, people had more rights –and more certain rights- than in other places. The system wasn’t perfect, but it was infinitely better than arbitrary rule. And it was perfecting itself all the time.

     Edmund Burke compared the English way of securing some rights and then advancing with a mortmain. You secure some capital of rights and then try to improve. The comparison is instructive, because it is the capital that you already have secured that allows you to acquire more.

     Of course, we can argue that it is possible to think of the rule of law in isolation, without referring to all the rights that grew with it, as free speech, habeas corpus, property rights, limited taxation, subjection of public officials to the law of the land, and many others. But our powers of abstraction are no ground for denying that in history, rights and the rule of law are born and die together.

Distorting the meaning of the rule of law

     As Hayek pointed out, we can’t have both the rule of law and government planning. When we advance on one direction, we retreat from the other. We can’t have both the rule of law and “positive discrimination”.

     Joseph Raz claims that after all the rule of law is not so important, that it has no moral value in itself. As I said in the first article in which I criticized his criticism, he failed to understand Hayek’s main arguments. But he also removes from the notion a great deal of its content. Even more confusingly, Raz adds content that do not belong to it.

     As to the latter, Raz tells us in his enumeration of what the rule of law requires that “The courts should have review powers over the implementation of the other principles. This includes review of both subordinate and parliamentary legislation and of administrative action, but in itself it is a very limited review –merely to ensure conformity to the rule of law” (6^th point in the enumeration, p. 217). It seems that Raz thinks that one of the requisites of the rule of law is that judges have review powers, and that he includes parliamentary legislation in those powers. That is odd because it would mean that England, the land where the notion developed, was at the same time the land were people failed to see one of its requisites. The issue cannot be treated here at length, but clearly judicial review of parliamentary decisions is no requisite of the rule of law. Some may consider that it is a better safeguard against parliamentary arbitrariness, but of course judicial review provides no remedy against judicial arbitrariness –it may even encourage it. The rule of law is not –and has never been- an answer to the question: Who has the last word on constitutional issues? As Hayek writes: "Whether, as in some countries, the main applications of the Rule of Law are laid down in a bill of rights or in a constitutional code, or whether the principle is merely a firmly established tradition, matters comparatively little" (The Road to Serfdom, 93).

     Raz also removes from the notion content that truly belongs to it. He writes that retroactive laws do not conflict with the rule of law if “it is known for certain that a retroactive law will the enacted” (p. 214). The assertion is very questionable. If all that is known is that some law will be enacted but not its content, then all we know is that the lawgiver will act in some way or other –and that is clearly in conflict with the rule of law. If on the other hand we know that a law will be enacted and we know for certain what its content will be, then that law is retroactive only in name or form –but that is an unreal situation and certainty is almost impossible to be real before the law is actually enacted.

     In any case, I don’t think it advisable to try to reconcile the rule of law and retroactive laws –not with such a vague formula as that provided by Raz. After all, the principle against retroactive rules has always been one of the most definite elements in the idea of the rule of law.

     It is alarming to see that the American law scholar Ronald Dworkin agrees with Raz when he writes that it might be enough to warn the population that moral standards will be applied in judging particular behavior (see his book Justice in Robes, 176). Raz’s exception in favor of retroactive legislation is ambiguous; Dworkin’s is vague –which is worse because more difficult to disentangle.

     Raz also writes that the rule of law does not mean equality, and he adds “before the law or otherwise” (p. 211). But it is certain that equality before the law is one of the central elements of the idea of the rule of law as it has been understood for generations, and that cannot be dismissed by simply telling us that it is not. Of course, I do not know what Raz includes in his otherwise but if he means equality of income or fortune, then it is clearly not part of the meaning of the rule of law. As Hayek explained, it is against it.

The rule of law is not a law

     Of course, there are exceptions to a perfect equality before the law. Minors are treated differently, and in the past women too. But even then we must not base general conclusions on exceptions. The rule of law is not a law, it is an ideal; it is a conception about law, about government, and about liberty. Besides, the inequality of minors has definite limits –and the same applies to the situation of women in the past. The right of a minor to his inheritance is protected by the law as much as that of an adult –the limitations apply to the exercise that a minor can make of that right over his possessions. Women were protected in their persons and property no less than men. Certainly, there were some differences as to the way of disposing of their property, the right to vote, etc. But we must keep a sense of proportion: even in Victorian times, English women enjoyed more certain rights than most other women in Europe –not to mention the rest of the world.

Judges are not the main players

     Another way in which Raz’s explanation misleads us about the content of the idea of the rule of law is that he exaggerates the importance of the work of judges. Most of his principles apply to what he describes as the machinery of enforcing the law (p. 218). That is a common error of law scholars (or rather a lack of perspective) against which Hayek warned us.

     Hayek says about the certainty of the law: “It has become the fashion to belittle the extent to which such certainty can be achieved, and there are understandable reasons why lawyers, concerned mainly with litigation, are apt to do so. They have normally to deal with cases in which the outcome is uncertain. But the degree of certainty of the law must be judged by the disputes which do not lead to litigation because the outcome is practically certain as soon as the legal position is examined. It is the cases that never come before the courts, not those that do, that are the measure of the certainty of the law. The modern tendency to exaggerate this uncertainty is part of the campaign against the rule of law…” (The Constitution of Liberty, p. 208).

     Without denying that people may apply rules by themselves, lawyers and law professors tend to focus on the application of rules by judges. When that is coupled with a misleading way of referring to judicial and administrative decisions by the name of “particular laws” (thus creating a false analogy between them and true laws) we are almost bound to misunderstand what is crucial for the rule of law.

     Raz tells us that “what the doctrine requires is the subjection of particular laws to general, open, and stable ones. It is one of the important principles of the doctrine that the making of particular laws should be guided by open and relatively stable general rules” (p. 213). That is not wrong, but it puts the stress on the wrong place.

     There is yet another false analogy lurking when we say that general rules “guide” both judges and ordinary people. The latter pay attention to laws in order to pursue their own plans. To use Hayek’s image, they use road signposts to guide them in following the path they have chosen according to their preferences. Judges aren’t guided by laws in that way when they decide a case –or rather, they should not.