The Case of the Argentine Republic

By Pablo Riberi Original contribution by Pablo Riberi, Constitutional Law Professor at the School of Law of the National University of Córdoba (UNC) and at the School of Political Science of the Catholic University of Córdoba (UCC), Agentina.

I. Argentine Constitutional and Legal system: Prelude

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Having noticed that during concrete historical episodes, liberal and republican instincts were together developed, a rather blurred composite of constitutional expectations is still hovering over ordinary people's conscience. Accordingly, the collision of legal cultures must be born in mind when trying to understand the current development of the "rule of law" in the country. All things considered, from 1930 to 1983, a long series of institutional disruptions with coup d'etats, had also yielded devastating results in Argentina's democratic culture. Therefore, a "formally" avowed Constitution has usually been toyed through a manipulated legal discourse, whereas "substantially", to ordinary people's minds, the Constitution has become more like a luxurious device. This long process of overlooking the "rule of law", both in "form" and in "substance", led the country to its last military government (1976/1983). Mourn As the country underwent massive violations of human righst, lingering secondary effects such as mourn and pain are still lingering secondary effects of massive violations of basic human rights underwent by the peopleassailing people's feelings.

Yet, in October 1983, Argentina recovered democracy. Argentina was at the end of a dark and dreadful tunnel, and as taking part in an offspring of hope, in 1994 the Constitution endured a major reform with an ample base of political agreements. Many innovations were tried, some of them aiming at moving the system closer to a semi-_presidential model. Unfortunately and beyond this effort, the hyper-presidential tendencies are still untamed. Another legacy of this "constitutional moment" refers to new rights and guarantees incorporated as a daring openness toward international human rights treaties. By granting "constitutional hierarchy" to a number of international human rights treatiescovenants, these amendments have definitively remodeled the meaning of several civil relations. On this trend, by opening Argentina's legal order to an ever-increasing influence of international law, a great upheaval is still operating _vis à vis the old system of sources and the "supremacy rule" of the historic Constitution.

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A "principle" based understanding following a rather dogmatic taking of the rule of law, is what legal operators construe when dealing with the idea of the "rule of law". Yet, a few remarks are worth noticing. Old and new sources of legitimacy are now converging in the current Argentine constitutional landscape. Some of them have lost their former importance, while others are still potent forces within the system. This is somehow awkward for sure. The interplay between both kinds of sources and their impact on the present understanding of the "rule of law" is at random puzzling. Special attention to cross-cultural influences in the design of public and private law systems is overridingly necessary to spell out what Argentine legal system really looks like. Looking inwardly for example, there is a "tale of two different traditions" within Argentine legal order. On the one hand, though there is a high premium impact from French administrative law influence, there is a US background of constitutional law dominating public law main insights as well. On the other hand, there is a private Law system based upon the continental tradition. Argentina has followed a "Napoleonic" idea of codifying its substantive law.

Although the Argentine Constitution is typically classified among those constitutions that are «rigid», Argentina has somehow developed a rather «flexible» approach to adapt its Higher Law through ordinary politics or even by judicial constructions. This circumstance, "tout a court", has an impact on the constitutional understanding of the "thin constitution". Be this as it may, the tension between the republican-democratic principle and the liberal principletradition, also plays a major role in shaping current political and academic debates on constitutional theory, which surprisingly, in previous years have received little attention to topics such as the so-called "countermajoritarian difficulty" and to judicial review's thrust for broadening its own scope. We should bear in mind that as stated above, today's constitutional law goes beyond the frontier of the constitutional text, opening up its terms to certain international norms and forming, together with the text, a so-called "block of constitutionality".

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After the democratic restoration in 1983, a new trend towards decentralization gained momentum, and the 1994 Constitutional Convention took important steps in this trenddirection. However, the control of tax resources by the federal government is a major obstacle, which by the way, allows to unfasten different sort of "agonistic" political pressures on lower units of government. Recent national crises, as the one that took place between the federal government and farmers have triggered federal instincts among people's conscience elsewhere in the country. The lack of fiscal federalism unveiled during this conflict has brought into the political agenda how Provincial autonomies coupled with individual economic rights involved are both undermined values when expansive powers of central government are unfettered.

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Fundamental rights and liberties have gone through ups-and-downs in Argentina's recent history. However, after democratic restoration, there has been a strong commitment to the full protection of human rights. As stated, Congress approved a number of international human rights treaties, many of which were later given recognized with "constitutional hierarchy" by the 1994 Constitutional Convention. In addition, the Supreme Court (especially between 1983 and 1990 and after 2005), adopted a very "redemptive" style of judicial review, and at least at the rhetorical level, constitutional promises are being translated in ways that ordinary men and women can harmonize with empathy. Reality, however, is somehow more complex than what legal language purports. Social and economic rights, for example, are mostly in the wake of implementation. Regarding these issues, when the judiciary is involved in constitutional dialogue with other branches of government, the lack of compliance usually brings about stronger cycles of distrust and pessimism among the people. Moreover, judicial vindication of certain rights allegedly created by international treaties, at random, may result in the violation of other equally important rights established at the domestic level.

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Along with federal statutes and international treaties, the Constitution is said to be the "supreme law of the land". The clause that establishes such supremacy over the rest of the legal order is overridingly still in force today. However, later additions to the power of Congress, together with glosses written by courts, have given rise to some competitive understandings of what it means to be the "supreme law of the land". It is still unclear which conception of supremacy will prevail. Meanwhile, the Constitution tries to foster popular sovereignty and civic direct involvement through means such as popular consultation and popular initiative. In sum, there is a tension between democratic and liberal principles not always ready to break in. Accordingly, on behalf of the liberal tradition, notorious rights claims saddled with a broad "judicial review" of some international judicial bodies such as the Inter American Court of Human Rights are steadily developing in the Countryopening new perspectives in this cleavage. Meantime, a "not yet accomplished" debate on how strong national and international Courts' authority actually should be, is what is at stake in coming political and academic discussions.

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To understand the "state of affairs" of the "rule of law" in Argentina, it is fundamental to explore the historical underpinnings of Argentine constitutional history. Otherwise, any attempt may result in a very daunting disappointing experience. It will also be so, unless another important caveat is considered. Among other difficulties, such as daunting figures reporting ordinary crimes and street violence, Argentina is currently enduring extended levels of corruption within the State. Once a massive well-educated country proud of its booming economy and its high-ranked standards of social development, is nevertheless today a severely disoriented nation striving to get rid of many of its unpredictable conundrums.

Therefore, to understand the "state of affairs" of the "rule of law" in Argentina, it is fundamental to start by exploring in the historical underpinnings of Argentine constitutional history. Otherwise, any attempt may result in a very reckless experience. It will certainly be so, unless another important caveat is considered. Acknowledging the sway of both normative and factual interplay of factors is a healthy attitude for this undertakingto be aware of. In the light of complex historical, political, and social elements, the actual meaning of constitutional values, principles, and rules can pop up through unimpressive subtleties. However, far beyond this concern, there is an enduring reluctance in the country to give up major civic hope as well. A once vividly republican tradition saddled coupled with a rich history of constitutional awareness is pervasively present in some institutions and some civic practices. Despite its efforts and past traditions, Argentina is nevertheless a rather "unaccomplished republic" and where the "rule of law" still looks very feeble. To grasp what the constitution of Argentina was, is, and will be, could be a sortilege ready to be deciphered, which all things considered, ultimately depends on the observer's willingness to dig into those underlying forces that have both undermined and enshrined the idea of the "rule of law" as a collective undertaking of self-government.

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