Martin Bohmer, THE POLITICS OF LEGAL EDUCATION, YLS JSD dissertation, pending approval, do not cite.

Chapter 3

The Function of the Form

Introduction This chapter will deal with the following question: why Argentina changed its institutions of legal education so radically in 1872? In effect, the abrupt change from a complex system (that encompasses an academic university teaching with a deliberative discussion of simulated cases in the Academies and the practical experience of apprenticeship in law firms) to a dogmatic repetition of a text calls for an adequate understanding. Traditionally, the answer to this question entailed necessarily a reference to the civil law tradition, i.e.: the enactment of a Code and the formalist approach to it that the tradition requires. Notwithstanding such explanation, in what follows formalism is discussed in depth and discarded as a sound theory of legal adjudication. Nevertheless, its cultural drive points in a different direction. Formalism, not as a legal theory now but as part of a political ideology, is adequately placed within a certain conception of the civil law tradition, the one that articulates a radically majoritarian system, a legislative supremacist conception in which political authority is fully placed in the hands of the representatives of the people. In this system both the executive and the Judiciary lose political relevancy and, as parliamentarism neutralizes the executive; the Code, the lack of judicial review power, a dogmatic legal science, a dogmatic legal education (or none, as shown below) in a word, formalism, neutralizes the power of the Judiciary. The problem with this explanation of Argentinas legal education shift is that the political system that implemented it is far from similar to the majoritarian French Revolution-like system assumed by the formalist explanation. Argentinas political system does not respond to that tradition and thus the connection between formalist legal education and the formalist continental political tradition does not work since the latter is not Argentinas. It is more fruitful to rephrase the question for this chapter and thus to ask 1

how to understand Argentinas political system and its new ways of legal education within it. The change in questions makes explicit the proposal of this dissertation already developed in the previous chapter: the modification of the ways of legal education should be understood within (and it could even be a heuristic tool to understand) the context of the role of judges and lawyers in the political system, and this role should be made consistent with larger questions of political authority and legitimacy either explicit or implicit in the system. Thus, the present chapter will describe the political process that lead to the creation of a certain kind of political authority, the institutions that brought it to life and the consequent reform of the system of legal training. This process is not, as any other historical process, pristine. Two conceptions of political authority clash bloodily for decades (with the political actors changing conceptions according to their perceived self interest). On the one hand the Federal, with its institutionally egalitarian (though ideologically conservative, close to the Catholic Church) leaning, envisions a country with multiple centers of power. On the other the Unitarian, with a centralist vision (though ideologically liberal), advocates for the establishment of order under the single will of one (province, city, person). The clash itself was felt for more than three decades as a zero sum game, and it was not over until the Unitarian conception prevailed, the one that believed in the necessity of a Supreme President, that is, in building a powerful executive, in making irrelevant the other two branches of government and in the need to subjugate the power of the provinces. Its goals were concentration of powers and a homogeneous legal system in the whole nation in order to avoid anarchy and defeat poverty educating the people and populating the nation with Northern European immigrants. As mentioned, this is not a clear cut process and its intricacies will be discussed below. With respect to the Judiciary the system accordingly fears their laws were in danger of being heterogeneously adjudicated by the provinces. In order to avoid this danger some safeguards are put in place, namely, a federal Supreme Court with final judicial review power, and (due to some amendments added to the Constitution in 1860 that limited the standing of the Court) the enactment of a federal Civil Code. Thus arrives the last point of this chapter. Since the Code and other federal laws could be adjudicated differently in the different jurisdictions, a formalist legal education would decrease the possibility of such thing to happen and would diminish the need of 2

the Court to step in too often. Thus, lawyers and judges become politically irrelevant (as the other political actors, but the President). The aim is to have the legal actors serve the political ones, ultimately the President, by applying the Code uniformly across the Nation, as they learned in law school. The chapter is divided in three parts: Part 1 explains why the formalist explanation should be rejected, Part 2 describes the two systems that were the antecedents to the Argentine one and its political project, and Part 3 is a historical account of the struggles to define the constitutional structure of this project, the shape and jurisdiction of the federal Judiciary, the main institutions of private law, and the way to train the profession in charge of making these institutions work.

Part 1: The rejection of formalism

The contemporaneous enactment of the Civil Code and the reform of legal education The 1872 reform in legal education in Buenos Aires is closely linked with a transcendental event that happened at the same time: the sanction of the Argentine Civil Code. In June 1863, a law was passed that authorized the Executive Branch to name those who would write the codes1, and in October 1864, President Mitre signed a decree naming Dalmacio Vlez Sarsfield2 as the author.3 Vlez Sarsfield was a prominent politician who, although born in Crdoba, was a key member of the political project centered in the Province of Buenos Aires that will be described below. The Code was presented by the Executive Branch to Congress in August 1869, and began to be valid law in the nation as of May 1, 1870. It was approved in Congress without debate, as the government wanted, so as to give it immediate validity, trusting its reform to the successive action of the laws that would be written when experience determined their necessity.4

Chneton, Abel, Historia de Vlez Srsfield, Editorial Universitaria de Buenos Aires, Buenos Aires, 1969, p.341 2 See, in general, Chneton, op.cit. 3 Ibid., 341 4 Memoria del Ministerio de Justicia, Culto e Instruccin Pblica, anexo C, ao 1870, As cited in Chneton, op. cit., p. 362.

But even before the Code became part of Argentinas legal system, its project was widely known,5 and every edition completely sold out.6 The professor of civil law in the Universidad de Buenos Aires, Jos Mara Moreno, immediately used the project to teach his class, and it was the only material he used.7 All the previous materials, the law that had been studied in the Universitys Department of Jurisprudence and in the Academy,8 were erased from Argentinas legal education. Moreno proposed, and it was approved in 1872, to extend the civil law course to four years to be able to study one title of the Code each year.9 Moreno was remembered by his students with a Code in his hand and a finger between its pages, as if waiting to continue reading it.10 The demand for the code to be the exclusive text used to teach civil law was not only academic. El Nacional, Vlez Sarsfields newspaper, urged the future doctors of law to choose the Code as subject of their dissertations.11 But the most important source of this demand was the codifier himself. Indeed, when Vlez Sarsfield sent the project to the National Congress, he criticized the lack of organization of the main subjects of the law, and defended the codes as a means for these topics to be completely legislated.12 Besides the systematic need for codification, he claimed that the code was important to produce elementary teaching books about it that necessarily should follow the order of the code ...13 The Code was so successful as a study text that until the end of the 1880s, that is for 20 years, it was the only university text. The only exceptions were the indexes and repertories, merely guides to be able to find the desired article.14 The change in legal education was not only abrupt, as characterized in the previous chapter, it was also radical. Not only was a form of teaching that had trained lawyers in Iberoamerica for over a century modified, but that modification included the contents of the education and the conception of law that those contents reflected. Does the fact of these two

Leiva, Alberto David, Aprendizaje Jurdico y Entrenamiento Profesional (Siglos XVIII a XX), Ediciones Dunken, Buenos Aires, 1996, p. 169. 6 Ibid., 168. 7 Ibid., 168-169. 8 In the last two years of the Academia, the exams were also based in the new Code. Tau Anzotegui, Vctor, La Codificacin en la Argentina (1810-1870). Mentalidad Social e Ideas Jurdicas, Imprenta de la Universidad, Buenos Aires, 1977, p. 364. 9 Leiva, op. cit., p. 169. 10 Ibid., p. 170. 11 Ibid., 167. 12 Ibid., 166 13 Ibid., 166-167. 14 Ibid., 173.

events (the enactment of the Code and the reform of legal education) happening almost simultaneously suggest a deeper connection?

The natural appeal to formalism

a) Formalism as a legal theory Returning for a moment to the criticisms of and explanations for the type of legal education described in Chapter 1, it is worth recalling that they are focused on two basic points: the first affirms that this way of teaching is simple continuity with the past. Chapter 2 demonstrated that this statement is false. The second point centers on the dogmatism, the encyclopedic pretension, and the exclusive dependence on memory as the overriding skill of law students. When these characteristics are mentioned as criticism, in general they tend to point out the inadequacy of the type of skills that the practitioners of law, according to the critics, require. However, when they are cited as an explanation, they refer to the connection between the way of teaching with a certain conception of the law: the formalist civil law tradition. To begin to explain the dogmatic bias of legal education in Argentina, it is necessary to briefly review the concept of formalism. Carlos Nino defines it in this way: According to this conception, the law is composed exclusively or predominantly of legislative precepts, that is, of norms enacted explicitly or deliberately by centralized organisms and not, for example, by consuetudinary and jurisprudential norms. This conception also sustains that the legal order is always complete that it does not have gaps -, consistent it does not present contradictions -, precise its norms are not vague nor ambiguous. In sum, the legal order is a self-sufficient system to provide a univocal solution for any conceivable case.15 If normative systems were complete and consistent, judges would have the possibility to always decide according to law given that the system would bring one and only one solution for each case. If the judge found another solution, she would be violating the law. Despite the fact that the ideal of normative completeness is a rational ideal to which all of the sciences aspire,16 to derive completeness from the demand of completeness is a
Nino, Carlos Santiago; Introduccin al Anlisis del Derecho, Editorial Astrea, Buenos Aires, 1980, p. 36. The ideal of normative completeness is a version of the Principle of Sufficient Reason, as that of consistency is a version of the Principle of No Contradiction. See Alchourrn, Carlos E. y Bulygin, Eugenio; Introduccin a la metodoga de las Ciencias Jurdicas y Sociales, Editorial Astrea, Buenos Aires, 1974, p.231.
16 15

fallacy 17 that seeks to hide the interpretive activity of legal practitioners. The conception of the judges role that is hidden beneath the ideal of completeness and consistency is that these public officials must resolve all of the cases that are brought to their sphere of competence through sentences founded in legal norms. 18 The formalist fallacy nested within this proposition is that which comes from the demand for the sentences to be based in legal norms, understood as positive norms, emanating from the will of the legislators. Indeed, in order to comply with this obligation, judges must be able to justify their decisions exclusively on the legal system, which presupposes that it is a complete and consistent one.19 Since formalism is a fallacious theory with respect to the nature of the normative systems and the obligations and roles of lawyers and judges, it must be discarded as an explanation for the reasonability of the memoristic teaching of laws as the only way to train legal practitioners. In effect, if neutrally applying positive law is impossible, an education based on the belief that to know positive law is enough to be a legal practitioner does not make any sense. Nevertheless formalism was prominent as a conception of law for many decades. The schools of legal theory that stand out as the most conspicuous representatives of this ideology in the epoch of the sanction of the Argentine Civil Code are the French School of the Exegesis20 and the German Jurisprudence of Concepts.21 Other schools that belong to the late 19th and early 20th centuries are, though more sophisticated with respect to the

17 18

Ibid., 236. Ibid., 237. 19 Ibid., 240. 20 With these local acclimations, it is still true that contemporary legalism in Latin America is, in its first stratus, a reception and transmission of the French revolutionary legality, expressed first in the codifying movement and, later, in the slow but incredibly solid reception of a science and methodology of private law. This body of civilest doctrine is known by the name of cole de lexgse. The local understanding of this literature came to constitute a true tradition, a first and uncontroverted level of conceptions, aspirations and juridical methods that continue reproducing themselves incessantly in the local culture. The reception of the Exgesis is not only the oldest substrata of relevant legal theory. It is also a substrata whose presence, activity and influence are undeniable even today in the juridical conscious of the regional legal practitioners. Lpez Medina, Diego E.; Teora Impura del Derecho. La Transformacin de la Cultura Jurdica Latinoamericana, Legis, Bogot, 2004, p. 147. 21 From this epoch stems that invariable and faithful adhesion of Argentine jurists to the system of the old French commentators, who lived consecrated to the study of law without distancing themselves from even a point of the law itself. De esta poca arranca esa invariable y fiel adhesin de los juristas argentinos al sistema de los viejos comentaristas franceses, que vivan consagrados al estudio de la ley sin apartarse ni un punto de la ley misma. Pestalardo, op. cit., p. 102. On the French School of the Exegesis and the German Jurisprudence of Concepts see also Nino, Carlos S.; Introduccin al Anlisis del Derecho, Editorial Astrea, Buenos Aires, 1980, pp.324-325 and Lpez Medina, Diego E. op. cit., pp. 130-233.

functions of the judge and jurists, outside of the scope of this dissertation.22 However, the mark of exegesis was felt for a long time,23 and even still is in present day but it cannot be understood as the success of a sound legal theory. A more promising explanation is at hand: the one that understands formalism within a certain political ideology that needs it to shape the legal conscious of practitioners.

b) Formalism as part of the political ideology of continental law The political ideology of the French Revolution assumes a particular conception of normative authority. This conception argues that all authority is born from the majority will of the people and only their representatives can emit valid legal rules. Authority comes from the majority consensus expressed in the Constitutional text and the laws that regulate it. This understanding of political authority weakens the judges capacity to intervene in the substantive discussion, converting them into mere public officials who apply the norms to concrete cases in a value-neutral way. The magistrates, in this scheme, use deductive reasoning in which the major premise is the norm, the lesser premise is the facts, and the sentence is produced by way of a logically necessary conclusion extracted from its premises. The explanation for this role of judges is simple: if the judges intervened in the process of applying the law, for example choosing one of various possible alternatives of interpretation, they would be bending popular will, converting themselves into illegitimate legislators. Judges would create law, usurping a function that does not correspond to them. In effect, if the judges interpreted, why would citizens vote for representatives whose decisions would be ignored in the crucial moment of applying them, in the moment in which their efficiency is at stake? Thus, added to the application of popular will as a fundamental assumption of this conception is that of the denial of judicial interpretation (in its two versions: that which denies judges from actually interpreting and that which recognizes that they can do it and thus obliges them to abstain from it). The kind of legal education required by this political conception does not need (or expressly avoids) critical discussions about different possible interpretations of the law or about designs of alternative juridical systems. It only requires teachers who know the law
22 23

See Lpez Medina, Diego E. op. cit., pp. 235-339. It should not surprise us, then, that for many years and until today, the attempts to reform the Civil Code, however balanced they were and are, have not found any echo: Argentine jurists, in general, have not been trained to hear them. They prefer to continue managing with a little logic and a little grammar the text of the current law. Pestalardo, op. cit., p. 108-109.

and who can transmit its contents clearly, and libraries where the norms that make up the legal system can be found so the students can know and remember the content of the popular will. Thus, the reference to formalism as an explanation for a particular kind of legal education is inadequate since it goes back to a false thesis. However, the explanation that, stemming from formalism, continues with the political ideology that contains it as the adequate conception of the role of legal practitioners seems more promising. Indeed, a certain conception of legal education (such as that described in Chapter 1), which goes back to a certain conception of the discipline (such as the kind of formalism just analyzed), should be able to be explained closing the circle of an overall conception of law, i.e., describing its third element: the role of legal practitioners in the political system in which they work. It seems evident that continental law, exegetic and formalist, is this conception of the role of judges. Part 2 will provide a more detailed account of this overall conception of law.

c) Argentina: a different system Nonetheless, a fact emerges here that prevents the formalist explanation from closing the circle: the Argentine political system does not respond to that conception, or at least not to all of it. Indeed, to mention a fact that is not minor yet is often overlooked, Argentine judges have had diffuse judicial review power24 since the 1853 Constitution, regulated by Law 48 of 1863. 25 Other features of the political system, such as presidentialism, bicameralism or federalism, distance it further away from the continental paradigm. Therefore, the explication that rests on formalism and the continental tradition for the Argentine legal culture does not work. Argentinas legal education is formalist but its political system is not the European one. Therefore, if the explanation of a certain kind of legal education is to be based on its consistent relation with the role of judges and lawyers in

24

One example is the brilliant work, previously cited, by Lopez Medina in which he affirms This fundamental idea of legocentrism made it difficult for many years to implement formal institutions of judicial review. The late creation of these formal mechanisms of judicial review in Latin America in the last third of the 20th Century, on the other hand, opened institutional channels for juridical arguments of an antiformalist nature that were completely unimaginable before this political innovation. He adds in a footnote: Colombia and Venezuela were the first countries to have some type of constitutional control in 1910." Lpez Medina, op. cit. 204. 25 The judicial review in Argentina is jurisdictional, i.e. it is in the hands of the judges and it is diffuse, i. e. any judge may exercise it. The Supreme Court of Justice of the Nation is its final interpreter.

the political system and its conception of political authority, an alternative conception of the role of legal practitioners in the Argentine political system should be proposed. What follows is, then, a reconstruction of the formation process of the Argentine national state from the creation of its first successful Constitution until the modification of the curriculum in its law schools, that is, of the political battle and institutional creations between 1853 and 1872. This description avoids falling into some common qualifications of the Argentine political system, namely, that it is a copy of the U.S. Constitution and, contradictorily, that it also responds to the ideals of the continental tradition. Part 2 starts with schematic descriptions of both systems to expose their foundations and to show that the way in which their institutions unfold are, in principle, incompatible, it then proposes a vision of Argentinas political project. Part 3 will describe the process of translating it into legal rules. Again, the challenge lies in finding a political theory that is consistent with the Argentine political project and can explain the 1872 legal education reform, but a characterization of the two political systems accessible to the Argentine founders as inspirations is important, since they will use elements of both to build a different one.

Part 2: Two ideal types for an Argentine political project

What were the influential political traditions at the time of the creation of Argentinas political system? In what follows, two ideal types will be described. They represent the traditions that Argentinas founders had in mind towards the middle of the 19th century. On the one hand, the ideal type of the Continental Europe tradition and on the other that of the American tradition. The rather detailed presentation of both types is due to the fact that Argentinas system is not an automatic copy of either one. On the contrary, this chapter intends to show that the Argentine political project, such as its founders created it, took pieces from each of these traditions with the purpose of carrying out an explicit political project that developed over four decades and that ended up creating the political game in XIX century Argentina.

The Continental tradition: democracy over constitutionalism26 Both traditions are rooted in the idea of popular sovereignty, as they exist within the framework of modernity and accept that the legitimacy of authority resides in the autonomous will of individuals. However, it is here where the differences emerge. The continental tradition, that in this version follows in general lines the French Revolution, assumes that authority arises from the people as sole generator of legitimate authority. Since not all of the people are able to make decisions (French citizenship is a lot wider than the restricted citizenship of the political community of the democratic Athens), the continental democracy imposes the monopoly of representation in the hands of the Assembly. In this system, the people themselves neither deliberate nor govern, but do so through their representatives.27 Although it has often been understood that this motto excludes semi-direct democracy mechanisms28, an alternative meaning is worth mentioning: that of giving the Assembly the monopolistic power to deliberate and govern and, therefore, to exclude the other two branches, the Executive and the Judiciary, from the possibility of becoming part of the public decision-making process. LP

P Figure 1: The people hold the authority, which they delegate to the Legislative Power.

The European tradition is, accordingly, parliamentary. In this ideal type, parliamentarism works as a way of preventing tyranny by the Executive and the possibility that the will of one rules over the will of all others. When a primus inter pares, a legislator, holds the Executive power, she simply becomes an officer of the peoples
See, in general, the classic: Merryman, John; The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, Lexis Law Pub, 1994. And also Berman, Harold J., Law and Revolution II, Belknap and Harvard University Press, 2003 and Dawson, John P. The Oracles of the Law, University of Michigan, 1983. 27 The people neither deliberate nor govern except through their representatives and authorities established by this Constitution. El pueblo no delibera ni gobierna, sino por medio de sus representantes y autoridades creadas por esta Constitucin Argentine constitution, Art. 22 28 Gelli, Mara Anglica; Constitucin de la Nacin Argentina. Comentada y Concordada, La Ley, Fondo Editorial de Derecho y Economa, Buenos Aires, 2006, pp. 291-296. Sampay, Arturo Enrique; Las Constituciones de la Argentina (1810/1987), Recopilacin, Notas y Estudio Preliminar, EUDEBA, Buenos Aires, 1975, p. 345
26

10

representatives. Her form of election reflects this characteristic as it is the winning coalitions in the Assembly and not the direct votes of the citizens that will decide her election. In this way, her term of office lasts as long as her electors trust lasts, and the constitutional institution of the vote of no confidence is the way that legislators control her performance. For the same reasons, the head of the Executive in the parliamentary system, compared to its equivalent in a presidential system, lacks a fixed term of office.

LP

EP P Figure 2: Executive power as officer of the Legislative.

Within this system, the people neither deliberate nor govern when applying the laws that have been violated or when their adjudication calls for the intervention of an arbiter who decides on the controversies arising from contradictory ways of understanding the will of the representatives. Under such circumstances (which ideally should be very rare given the lack of ambiguity and gaps of the legal system that strict formalism proclaims in line with the model), it is necessary to create an agency to explain the correct understanding of the law by those who, while not understanding such law, are confronted with controversies that endanger the rights of the citizens or the correct way of dealing with public policies. This agency is none other than the Judiciary, created from the need to solve the conflicts that are likely to arise from the wrong interpretation of decisions made by the representatives; the power of said agency is limited to applying the law, which is neither more nor less than the expression of the popular will. As Montesquieu said, the judge is the mouth that pronounces the words of the law,29 and must devote herself to merely saying the law, not deliberating about its correctness or making decisions about its convenience. So as to clarify Montesquieus idea: judges are the brainless mouth of the

29

The judges of the nation are, as we have said, only the mouth that pronounces the words of the law, inanimate beings who can moderate neither its force nor its rigor. Montesquieu; The Spirit of the Laws, Cambridge University Press, Cambridge, 1989, p. 163

11

law, a body whose purpose is to do whatever the other body decides for it, that is, to utter the law, not to discuss it. Indeed, reasoning the law is not among the powers of the judges because the relevant brains are those of the peoples representatives. The formalist tradition of continental law understands that judicial decisions must result from the syllogism according to which the sentence must follow a major premise--the law--and a minor one--the facts. Ergo, from the general rule he who murders must go to prison and the fact that X has committed a murder, follows, according to this vision, the individual rule, the judicial decision: X must go to prison. The will of the judge is nowhere to be found in this division of institutional work; the judges role is equivalent to that of a computer, a black box in which a connection between what goes in and comes out of it is produced neutrally without the autonomous intervention of the hardware.

LP

EP P

JP

Figure 3: The Judicial Power is created to solve possible conflicts, its power is limited to the application of the law.

However, in a relatively complex society, how does the brain tell the mouth what to say? It sends software, a code, the Code, in this case the Napoleonic Code, a handbook for citizens that completely and consistently contains the will of the legislator (which is the will of the people). There is nothing in our lives not ruled by the Code, and the Code has neither gaps nor contradictions. This attitude responds to the European rejection of the possibility that a literate minority, the aristocracy that they had just, literally, decapitated, hold the power through a group of people who, given their academic credentials, tell the people what the Code means. Ideally (and really, since law schools were closed for a time at the beginning of the 1790s)30 the system does not need intermediaries, i. e., lawyers, because no
30

When the Napoleonic Civil Code of 1804 was enacted there were no longer University Schools of Law in France. They had been removed after the revolution, on September 13th, 1793, by decision of the National Convention, in recognition not only of the chaotic general situation of university studies (which,

12

interpretation is necessary. Knowing how to read is enough to understand what the people imposed on themselves through their representatives work in the Code.31 LP Code EP P Figure 4: The Code as univocal message for a Neutral Justice. JP

If there were still any doubt, if, under the pressure to make the fast decisions of daily work, judges doubted the correct way to apply the law, the continental tradition resorts to an old institution: the jurists. The law professors of the old European universities are in charge of creating doctrine so that judges will understand how to apply the law. This groups purpose is to show that where judges see contradictions in the law, they are really showing their own lack of knowledge because there are neither ambiguities nor doubts possible in the Code that cannot be eliminated through a rational explanation.

along with the rejection of every corporation, also caused the closure of the schools of Theology, Medicine and Arts), but also of the revolutionary ideas, critical of any comment on law - clear work of the popular will which could only be obscured by those interpretations - and favorable towards the liberalization of the judicial professions, which, according to these ideas, did not require any special knowledge, different from that of any citizen, for the application of laws without any interpretation. Villers, Robert ; "L'enseignement du droit en France, de Louis XIV Bonaparte", in AAVV, L'educazione giuridica. I: Modelli di universit e progetti di riforma, Libreria Universitaria, Perugia, 1975, p. 109, in Accatino Scagliotti, Daniela. "La Conocibilidad del Derecho y la Extincin de los Abogados: Un Corolario Utpico de la Codificacin", Rev. derecho (Valdivia), dic. 1999, Vol. 10, No. 1, pp. 7-18. () The following text refers to the intervention of a representative of the Convention in the debate about the schools of law, perfectly illustrating those ideas: Bouquier exclaimed: What good do law schools lead to? Laws must be simple, clear and not many, they must be such that citizens can always carry them with them. And perorated against law schools saying that, instead of creating them, every kind of paraphrase, interpretation, note and comment on laws should be punished with heavy penalties. Gascn y Marn, Jos; "La enseanza del derecho y la autonoma universitaria en Francia", Zaragoza, 1909, p. 9, in Accatino Scagliotti, op. cit. 31 As it can be noted it is all about ideas wholly coherent with the ambition to a direct knowledge of the law on the part of the citizens. It almost seems that the Benthamite images had become reality, for they even incorporated basic lessons of law to the syllabi of public schools, so that these children become virtuous citizens. (Van Caenegem, Raoul; "I signori del diritto. Giudici, legislatori e professori nella storia europea", Giuffr, Miln, 1991, p. 135 in Accatino Scagliotti, op. cit.), as Bentham himself suggested: This (the universal code) must be the first classic book and one of the first teaching objects of every school. In the cases where a certain education is required as a condition to obtain a certain job, the applicant could be compelled to present a copy of the code written by his hand or translated to a foreign language. The most important part should be learned by heart, like a catechism, e.g., the one that contains the definitions of the crimes, and the reasons why they have been placed in this class. Bentham, Jeremy; "Carta a O'Higgins", Revista Chilena de Derecho, 1-6, vol IV, 1977 op. cit., p. 577 in Accatino Scagliotti, op. cit.

13

This characterization of the role of the jurists agrees with the conception of the science of the law known as legal dogmatics.32 Indeed, the seemingly contradictory idea of a dogmatic science is connected to the ideology of continental law. The dogma in question is the law itself, the will of the peoples representatives. For this reason, jurists see themselves as nothing but mere commentators who systematize the Code, because if they dared to give their opinion, they would be violating the supremacy of the Legislative branch and the system would become a tyranny, not of judges but, even worse, of law professors. It is also due to these considerations that the dogmatic way of learning the law by heart in this tradition is deemed reasonable: knowing the Code and the doctrine of the authors is enough to be an efficient law practitioner.

LP Code EP P Figure 5: Jurists create doctrine to guide the judges in the application of the law. JP Jurists

This is the ideal type of radical, Jacobin democracy, which expands together with the Napoleonic Empire. Within the several types of systems in which the constitutional democracy exists, this one has a lot of democracy and a bit of constitutionalism. As a matter of fact, the interpretation of the constitutional laws is also the jurisdiction of the legislative power. So much so, that it was not until the end of the Second World War, after the Holocaust, that Continental Europe created, albeit carefully, a body to control

32

The qualification of dogmatic used to signal the kind of juridical research that we have been analyzing, constitutes an indication of an attitude that can be considered typical of this modality of juridical science: the dogmatic acceptation of the obligatory force of positive law. Nino, Carlos S.; Introduccin al Anlisis del Derecho, Editorial Astrea, Buenos Aires, 1980, p. 322. () the distinctive characteristic of the dogmatic is that, like in the case of the judges, that function of reconstruction of law is realized, not openly, but under cover, utilizing an effective rhetorical conceptual apparatus that completes the function by making it appear that the original solutions that are proposed are derived in some mysterious way from positive law. Some of these techniques are very interesting and () generally comply with the important mission of adjusting law to certain rational and axiological ideals, while they give the sensation of preserving juridical security by sustaining that the solutions proposed do not suppose any modification of positive law, but rather are derived implicitly from it. Nino, Carlos S. (1980); op. Cit., pp. 326-327.

14

the constitutional interpretation of the majorities: the constitutional tribunals, and later still, the European Court of Human Rights.33 The North American tradition: constitutionalism above democracy The North American model departs from the same principle as the continental tradition: the sovereignty of the people. Notwithstanding this, the North American revolutions main concern is not with the minorities, but rather the majority. In effect, the American founding fathers approach is not based on Rousseaus optimism with collective will, but on the Federalist question of how to reign in the passions of the different factions into which a crowd is inevitably divided.34 Their answer consisted of recognizing that the periodic electoral contest is not enough to control power. Thus, the political structure should be built in such a way that nobody can ever possess all of the available institutional resources. The idea is to submit powers to the others symmetric will. The result is known as the system of checks and balances: a system through which the Executive, the Legislative and the Judiciary each assumes political power, and each has an institutional mechanism available to control the other two. Therefore, the danger of one Power tyrannizing the others is avoided. Under the American ideal type system, the people do not delegate sovereignty directly to the Legislative. Unlike the continental system, sovereignty is handed over in a founding agreement, within the framework of the general design of the rules of the game:
33

They are political bodies, e.g., the European Court of Human Rights: The Court is composed of a number of judges equal to that of the Contracting States (currently forty-six). Judges are elected by the Parliamentary Assembly of the Council of Europe, which votes on a shortlist of three candidates put forward by Governments. The term of office is six years, and judges may be re-elected. Their terms of office expire when they reach the age of seventy, although they continue to deal with cases already under their consideration (Official Webpage of the European Court of Human Rights www.echr.coe.int/ECHR). 34 Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations () Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority () These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations. Madison, James; The Federalist No. 10. The Utility of the Union as a Safeguard Against Domestic Faction and Insurrection, November 22, 1787.

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that is, through the Constitution. Thus, under this model the constitutional texts voice is the peoples voice, and not that of their representatives. We, the people35 it proclaims, a different introduction from that of the Argentine constitutional preamble: We, the peoples representatives36

EP P

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Figure 7: The people delegate sovereignty under a Constitution and the Constitution endows political power to the three Branches.

It is the people, then, who define the rules of the game and, through the Constitution, endow political power and mutual control capacity to the three Branches. How does the system of checks and balances work in the North American tradition? On the one hand, the Executive concentrates an important share of power, regulates laws, is in charge of foreign affairs, takes part in the judges appointment system, is the Commander in Chief of the Armed Forces,37 has a decisive part in
35

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. (Constitution of the Unites States. Adopted by convention of States, September 17, 1787; Ratification completed, June 21, 1788, (Current Through 1995). 36 We, the representatives of the people of the Argentine Nation, gathered in General Constituent Assembly by the will and election of the Provinces which compose it, in fulfillment of pre-existing pacts, in order to form a national union, guarantee justice, secure domestic peace, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves, to our posterity, and to all men of the world who wish to dwell on argentine soil: invoking the protection of God, source of all reason and justice: do ordain, decree, and establish this Constitution for the Argentine Nation. (National Constitution of the Argentine Republic, Preamble). Nos los representantes del pueblo de la Nacin Argentina, reunidos en Congreso General Constituyente por voluntad y eleccin de las provincias que la componen, en cumplimiento de pactos preexistentes, con el objeto de constituir la unin nacional, afianzar la justicia, consolidar la paz interior, proveer la defensa comn, promover el bienestar general, y asegurar los beneficios de la libertad, para nosotros, para nuestra posteridad, y para todos los hombres del mundo que quieran habitar en el suelo argentino: invocando la proteccin de Dios, fuente de toda razn y justicia: ordenamos, decretamos y establecemos esta Constitucin, para la Nacin Argentina. (Constitucin Nacional de la Repblica Argentina, Prembulo). 37 The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the

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declaring war, and in the subscription of international treaties.38 The system is presidentialist, the President is both head of state and head of government and his election depends (indirectly) on the popular vote. It thus enjoys a democratic legitimacy of its own.39 Contrary to the continental tradition, the Executives mandate is a fixed period,40 and the Legislative is not entitled to remove the Executive from its position except through the burdensome impeachment process. On the other hand, the Legislative has the power to promulgate laws, a task that represents a significant share of power. This body is divided into the Senate and the House of Representatives. While the House represents the country as a whole, the Senate represents the States and is entitled, together with the Executive, to appoint the members of the Federal Judiciary, among other powers. The bicameral design entitles each chamber to veto the other.
Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. (Constitution of the Unites States. Article II, Section 2, Clause 1). 38 He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. (Constitution of the Unites States. Article II, Section 2, Clause 2). 39 Since both (the President and the Congress) derive their power from the vote of the people () there is a permanent latent conflict and even sometimes about to erupt dramatically; there is no democratic principle to solve it, and the mechanisms that could exist in the constitution are generally complex, highly technical, legalistic and, therefore, of doubtful democratic legitimacy for the electorate. (Linz, Juan; Democracy, presidential or parliamentary: Does it make a difference?, in Linz, Juan and Valenzuela, Arturo; The Failure of Presidential Democracy: The Case of Latin America, John Hopkins University Press, 1994 p. 7. As cited in Shugart Soberg, Matthew and Mainwaring, Scott; Presidencialismo y democracia en Amrica Latina: revisin de los trminos del debate, in Shugart Soberg, Matthew and Mainwaring, Scott (comp.), Presidencialismo y Democracia en Amrica Latina, Paids, Buenos Aires, 2002, pp. 38-39). 40 The Executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term (Constitution of the Unites States. Article II, Section 1, Clause 1). What do we mean by presidentialist democracy? There are two characteristic definitions: (1) the chief of the executive (president) is elected by the people, and (2) both the president and the legislative hold their office for a fixed term. These characteristics can be counteracted with those of parliamentarism, in which (a) the chief of the executive (the prime minister) is not elected by the people but by parliament, and (b) the terms are not fixed, since the continuance in office of the prime minister and his or her cabinet depends on the confidence of the parliamentary majority, and the cabinet can sometimes dissolve the parliament and call for early elections. The fundamental features of presidentialism - whichever the differences among the various types - are the separate origin (that is, the popular election of the executive) and separate survival (that is, neither the executive nor the legislative can shorten the others mandate) ( Shugart Soberg, Matthew and Mainwaring, Scott; Presidencialismo y democracia en Amrica Latina: revisin de los trminos del debate, in Shugart Soberg, Matthew and Mainwaring, Scott (comp.), Presidencialismo y Democracia en Amrica Latina, Paids, Buenos Aires, 2002, pp. 21-22).

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Finally, the Judiciary, which is formed through a third level designation in indirect election (since the Executive and the members of the Senate themselves are indirectly designated), thereby guaranteeing that only a certain type of person may reach this instance of federal power. In addition they are lawyers so there is in addition an instance of exclusion for candidates who do not belong to that profession. Judges keep their appointments until resignation or death, or, like the Executive; they may be removed only by means of a complex process of impeachment. This body, endowed with such extraordinary characteristics, remains isolated from the electoral accountability of the majority, and as such enjoys the exceptional and grave capacity of controlling, under the Constitution, the decisions of the other branches of government. Thus, when (according to the judges particular vision) the decisions of the other branches contradict the Constitution, the Judiciary may ignore the decisions made by the people representatives and exercise the power of judicial review.41 It is not necessary to underscore once again the exceptionality of this countermajoritarian capacity of the Judiciary in the North American tradition. However, it is essential to note some features that make it different from its continental peer. In the US, decisions made by higher courts are binding on the lower ones, a principle known as stare decisis or obligation to adhere to precedents. This role of the Judiciary produces the result of turning judicial decisions into a privileged source of law (in contrast to the supremacy of the law and -less so- the doctrine, in the continental tradition) and judges in main actors in American politics. The struggles to designate the federal Supreme Court justices are landmarks in the political dispute among parties, and for the presidents to include a certain judge in the Supreme Court is understood as a fundamental part of their political legacy. C

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Figure 8: The system of checks and balances.

41

See, Marbury v. Madison, 1 Cr. (5 U.S.) 137, 174 (1803).

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Federalism is not simply a minor detail in terms of the distribution of powers in the American system. The states decision to maintain a considerable share of the political power reduces that of the central government even more. In this system, there is no Code, not only because of the role of judicial decisions or the system of checks and balances that avoids the supremacy of the legislative branch, but also because of the resistance to giving the federal government more jurisdiction than strictly necessary, in particular, the regulation of fundamental rights. The decentralization supposed by federalism adds to the system of checks and balances by multiplying the actors with veto power at the local level. Most legislative capacity was in the hands of state governments and the development of common law in the hands of state courts. The Reconstruction and the New Deal will change this structure to turn over power to the federal government, but that storu will be mentioned in the next chapter. The federal nature of the system also structures an institutional pyramid with its apex in the United States Supreme Court, the federal Judiciary. This system is composed in the first place by the United States District Courts, which are the trial courts and the first instance of jurisdiction over federal matters, that is, the base of the pyramid. Above them, organized in 12 districts, are the United States Courts of Appeals. Since judges have judicial review power and their decisions, especially those of the higher courts, enjoy the guarantee of stare decisis, it can be affirmed that the federal justice system is designed to complete three roles. The first is the countermajoritarian role of constitutional control over the other branches (at all levels of government, municipal, state, and federal). The second is the role of regulating the interpretation of the Federal Constitution in the entire territory, a role that is in tension with the characteristics of American federalism, and very restricted at least until 1865. The last role is that of disciplining the decisions of the judicial system itself by homogenizing the Constitutional interpretation of the federal judges. These three attributes of the federal justice system are in the hands of the judges who (with the help of lawyers) mold the limits of democratic deliberation, of States rights and of its own decisions. To conclude, given the privileged position of legal professionals in this system, it is reasonable that the teaching of law favors the study of appellate court decisions. The case method and its Socratic version are the translation of this need to the classroom. Nevertheless, as the next chapter will show, these methods are vague enough (they can be more or less formalist or realist) to accommodate different version of the system and the role of judges in it. 19

The American system manages (incorporates, balances) the latent tension that exists in every constitutional democracy in a completely different way from the continental one since it tends to tilt the balance in favor of constitutionalism over democracy.42 Finally, these two systems hide an ambiguity concerning their conceptions of authority. In effect, both can assume two very different visions: the institutional egalitarian and the supremacist. The European system depends on whether the political process is able to introduce enough voices in Parliament to produce accommodation of interests and deliberation within it and with the Executive or if the Prime Minister is successful enough to suppress opposition with a strong majority of representatives. The American, on the other hand, can behave in a more egalitarian manner when the system of checks and balances work, and tend to a more supremacist dynamic when the President governs with his own majority in both Chambers and the Court acquiesce, or when the Court assumes its role as the final arbiter of social conflicts. Nevertheless, what makes them an important source of inspiration is the imaginative institutional engineering that both provide with enough clarity and consistency. The power of the Executive, the deliberative capacity and expediency of the Legislative, the role of the Judiciary, the division of the State in many jurisdictions or the centralization of decisions, are tools to be used and assembled by Argentinas founding generation in order to build its political system.

An Argentine political project: a Constitution to populate the desert. Halfway through the 19th century, the two ideal types just described enjoyed great prestige among those who pondered Argentine problems. However, it is a mistake to think that these models, or at least one of them, were copied in a nave attempt to emulate or merely import processes alien to us. The generation of 183743 made a diagnosis of Argentinas ills, created a project with specific public policy proposals, and carried out a political struggle for more than three decades, producing the most spectacular change the country has ever seen.
Hence, it clearly appears that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic, -- is enjoyed by the Union over the States composing it. Madison, James; op. cit. (emphasis added). 43 See in general, Katra, William H.; La Generacin de 1837. Los Hombres que Hicieron el Pas, Emec, Buenos Aires, 1996
42

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In fact, from the ideal models just described the founders created a system that is neither the French nor the American one, but an Argentine model created to solve Argentine problems. There are two basic texts that, from different points of view, help to understand the proposal: Facundo by Domingo Faustino Sarmiento (1845)44 and Las Bases by Juan Bautista Alberdi (1852).45 Both authors reflected on and discussed the Argentine chaos of the first thirty years after the 1810 revolution. Both texts, from diverse perspectives, suggest a diagnosis of Argentinas ailments. Juan Bautista Alberdi and Domingo Faustino Sarmiento are two key figures in Argentine history. Both were born at the time of the Revolution of May and grew up as witnesses to the anarchy and civil war of the 1820s and 1830s. Alberdi received his law degree in Cordoba and as we have seen, was a professor in the Academy of Jurisprudence of Buenos Aires. He was part of the so-called Generation of 1837, a group of young men involved with the current of Romanticism who would become fierce opposition to Rosas, which would win Alberdi exile. Nonetheless, an interesting trait of Alberdis is that precisely that romantic character brought him closer, at least in his first works, to the Federal thinking. He then preached the importance of the nations customs as the primordial source of its law, was an ambiguous critic of the codification and an admirer of the American political system. He will be mentioned profusely in this chapter in his two periods: first, as the founding father of Argentinas centralist Constitution and later as his bitter critic Sarmiento, for his part, is a curious self-taught man, who was also an adherent of Romanticism, and was also exiled several times to Chile for his unwavering opposition to Rosas. In his case, however, his decided defense of European and North American civilization did not bring him close to any Federals, with the only exception of Urquiza, in an event that did not end well and that ended up pushing Sarmiento to defend the cause of Buenos Aires. According to their narratives, since the beginning of the 19th century, Argentina had been suffering permanent confrontations, starting with the war of independence, then a civil war and anarchy, and ending up in Rosas brutal dictatorship. Argentina had won the struggle to become autonomous regarding Spain, but had dramatically lost the challenge to organize its citizens peaceful coexistence. Argentina could not create a
44 45

Sarmiento, Domingo Faustino, Facundo, Ediciones El Aleph.com, 1999. Alberdi, op. cit.

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system of authority agreed upon by consensus, a scheme of rights and mutual respect that would legitimize some kind of social order to defend the rights of its inhabitants. The first feature of this diagnosis is, then, anarchy, the existence of multiple authorities and rules without an institutional scheme to coordinate collective action. The second feature is poverty, the other enemy to defeat. Indeed, crossing the Argentine territory must have been an exasperating experience for that generation. A vast desert traversed by non-navigated rivers was all that there was to see,46 and the world was waiting for its products. However, the first problem brought along its own solution. The proliferation of authorities had diminished during the repression exercised by Rosas, and the centralization of power in Buenos Aires had proven that it was possible to contain the incompatible ambitions of the caudillos. Therefore, anarchy should be opposed by concentration of power in few hands. Poverty, on the other hand, was blamed on living in a desert47, barely populated48 by a race as useless for progress49 as for democracy.50 In fact, according to the literary descriptions of Facundo and due to a long tradition forged by the needs and opportunities of the desert, the gauchos develop the few skills required by their environment:

The vast extension of the country that is at its extremes is completely deserted, and it has navigable rivers which have not been sailed even by a fragile boat. The illness the Argentine Republic suffers from is the extension; the desert surrounds it everywhere, it begins to show in its bowels; the solitude, the desert without human habitation, are generally the unquestionable boundaries between provinces. Sarmiento, Domingo Faustino, Facundo, Ediciones El Aleph.com, 1999, Chapter I, p. 24. 47 What name will you give, what name does a country covering two hundred thousand leagues of territory and a population of eight hundred thousand inhabitants deserve? A desert. What name will you give to the Constitution of this country? The Constitution of a desert. Well, that country is the Argentine Republic; and whichever its Constitution is, for many years it will not be but the Constitution of a desert. But, what is the Constitution that best suits a desert? The one useful for making it disappear Alberdi, op cit, Chapter XXXI, pp. 145-146. 48 The moral progress, the culture of neglected intelligence in the Arab or Tartar tribe is here, not only neglected but impossible. Where shall a school for the children to attend lessons be located when they live spread out ten leagues away from one another in all directions? Sarmiento, op cit. p. 41. 49 In all other respects, the result of the fusion of these three families [the Spanish, the natives and Africans] is an homogeneous whole, characterized by its love for idleness and industrial incompetence Sarmiento, op cit. p. 33 50 what there is, is little and poor. It is better to raise the number of our population and, what is more, to change its condition in a way favorable to progress With three million of Christian and Catholic natives you will certainly not make a republic. You will neither make it with four million people from mainland Spain, for the pure Spanish is incapable of making a republic whether there or here. If we are to make up our population for our system of government, if it is easier for us to make the population for the system proclaimed than the system for the population, it is necessary to encourage the Anglo-Saxon population on our soil. The Anglo-Saxon population is identified with vapor, commerce and liberty, and it will be impossible for us to settle these things among us without the active cooperation of this race of progress and civilization. Alberdi, op cit, chapter XXX, p. 144.

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horseback riding, cow slaughter, and river-crossing but not much more. These activities did not demand the skills or emotions that Sarmiento understood as necessary to carry out a capitalist model of development51: devotion to work, shame (which comes from the close coexistence in cities), and envy (which inspires competition for a greater quantity and quality of goods). In the generous geography of the desert, the gaucho is not vulnerable to temptation by habits so foreign to his immediate interests.52 There are many possible solutions to solve the problem of a scarce and nonconvenient race such as its elimination, the teaching of new habits to future generations, and the incorporation of other races. It is debatable that the elimination of the gaucho at the Indian frontier and in the war against Paraguay was a deliberate policy, but it is true that while these confrontations were taking place Argentina was generating the most ambitious project of compulsory public education that Latin America had ever seen,53 and had started the search for an unforeseen number of immigrants who would flood its territory by the hundreds of thousands.54 To summarize, if Argentinas problems were anarchy and poverty, the resulting proposal was the concentration of power, education and, above all, immigration.55 This

Here lies the purpose of todays constitutions: they must be prone to organize and build the great practical means to get the emancipated America out of the state of darkness and subordination in which now is We must constitute ourselves today, if we are allowed to put it in these words, to have iron roads, to see our rivers navigated, to see our States opulent and rich Our contracts or constitutional pacts in South America must be some kind of mercantile contracts of corporations, especially formed to populate these deserts which we ostentatiously call Republics Alberdi, op cit, Chapter X, p. 28. 52 there is no encouragement, the example disappears, the need of expressing oneself with dignity that is felt in the cities is not felt there in isolation and solitude. The necessary privations are justified by the natural laziness, and the frugality of pleasures brings about the exteriorization of barbarism. Society has completely disappeared; the isolated and concentrated feudal family is all that remains; and without a society, every type of government becomes impossible; the municipality does not exist, the police power cannot be exercised and civil justice does not have the means to catch the criminals. Sarmiento, op cit. p. 39 53 Halpern Donghi, Tulio; Una Nacin para el Desierto Argentino, Editores de Amrica Latina, 1997, p. 115 54 Ibid., 116 55 Thus, the providential purpose of that law of expansion is the indefinite improvement of the human race, by means of the mixing of races, the communication of ideas and beliefs, and by maintaining a balance between populations and supplies. ( ) Unfortunately, its implementation found in South America an obstacle in the system of exclusion of its first conquerors The obstacles and prohibitions of the colonial system prevented European people - who went to North America, colonized by a country with a better economic sense - to populate it in a great and fruitful scale; being this one of the main reasons for its superiority over us We thus find ourselves before the requirements of a law that demands for civilization the territory we keep deserted because of the backward state of development European socialism is the sign of an imbalance which will sooner or later have in this continent its violent rejection, if our precaution does not use from today the means needed for that law to be peacefully executed and in the benefit of both worlds Europe, just as America, suffers from the violation exercised on the natural course of things. The population which we here vitally need is there overabundant to the point of

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project has nothing to do with democratic pretensions, fear of minorities or majorities, federalist obsessions or formalities that control discretionary judges. The project consisted in the creation of a national state that would allow governance, which is nothing more than populating the desert; this would afterwards become the leitmotif of the generation of 1880: order and progress.

Part 3: The resulting political system. Law and history

Introduction What the previous part described is a diagnosis and a public policy proposal. This part will show the translation of the diagnosis into specific institutions, stressing from the beginning a marked fact: this political translation takes place through a written Constitution, a set of laws and the enactment of a Code. After years of disdain for institutional forms (Rosas referred to the constitution -which his opponents demanded- as that little book56), the creation of a new State was tied to the promise of a written founding pact. The completion of that promise was only possible after the military defeat of Juan Manuel de Rosas in the battle of Caseros on February 3, 1852. General Justo Jos de Urquiza, the caudillo of the Province of Entre Rios, organized the Grand Army that, with the support of the Empire of Brazil, was double the size in soldiers and arms as that of Rosas. Urquizas triumph, then, opened the doors for the Constitutional Assembly. However, the terms of the agreements that paved the way towards the Constitution were not to the liking of the Province of Buenos Aires, and thus started a two decades long process of implementing the institutional design, from the 1853 Constitution to the 1872 reform of legal education. This Part will consist of a narrative of historical events and a description of the laws enacted to regulate the different aspects of the political system. The constitutional text proposed by Alberdi in Bases and the 1853 Constitution will show the first attempt to regulate a presidentialist Federal Republic, in this case without the participation of the Province of Buenos Aires, since it had seceded

illness. Will those societies reach a fundamental chaos regarding property issues when we have, within reach, one fifth of the inhabited world?... Alberdi, op cit, Introduction, pp. 1-2. 56 Note: ese cuadernito

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from the rest of the country, the Confederacin Argentina, in 1852. These texts respond to the political project described in Part 2 organizing a system centered in the figure of the President. After seven years of division, the military forces of the Confederacin will defeat the economically powerful Buenos Aires in 1859 and let it propose an amendment of the Constitution in 1860. Buenos Aires will take advantage of this opportunity and reform the text in order to lessen the degree of centralization and enhance the power of the provinces vis a vis that of the President. This is a unique moment of Argentine history, a moment of equality among Buenos Aires and the rest of the provinces. The former had the wealth of the customs and the pampas (cattle and grains) and the latter the political (now constitutional) power and its military superiority. This almost equal bargaining power could have led to an egalitarian political system sustained by the amended constitution. The moment was too brief: just a year after the reform Buenos Aires defeated the Confederacin in the battle of Pavn and became the center of national power. The institutional efforts of the national government, now based in Buenos Aires, after Pavn where aimed at erasing the federal amendments that Buenos Aires itself had introduced in the Constitution. In this context the laws that regulate the jurisdiction of the federal judiciary and judicial review were enacted in 1862 and 1863. This Part will show that these institutions were created in order to enable the federal government to control the provincial authorities policy making capacity by imposing federal jurisdiction and judicial review power on any decision that would challenge the way the federal government adjudicates the Constitution. The enactment of the Civil Code in 1871 after a few years of work is the next step in this process that will be discussed below. The political effect of this move is none other than to expropriate from the sovereignty of the provinces their capacity to create their own regulation on the main matters of private law. The problem, though, is that the Code can also be adjudicated and one of the 1860 amendments can be construed as making the Provincial Supreme Courts the last adjudicating authorities in regard of the constitutionality of the rules of the Code. The argument advanced here is that, if the federal government was concerned not only about letting the Provinces adjudicate the Code at will but also about an intensive (and arguably unconstitutional)- use of the federal judicial review power to discipline them if they do, a formalist legal education would decrease the possibility of such things 25

to happen. Thus, the abrupt and radical change in legal education can be seen as part of the larger project of building the Argentine state in accordance with the blueprint originally exposed by its founders and developed throughout almost three decades of political struggle. More generally, the argument claims that legal education, the training of legal actors depends on the role those actors are called to play in the political scheme of the institutional system. When the role is (or pretends to be) a silent one, formalism is the legal ideology that prevails. On the contrary, when legal actors are called to play a more active role their legal training becomes more pragmatic, contextual and politically aware. At an even more general level: when a supremacist vision of power takes hold of any of the branches, the judiciary tends towards formalism (either because it is left aside as a relevant center of power when one of the other actors monopolizes the decision making capacity, like happens with Parliament in parliamentarian systems or with the President in hyperpresidential systems, or because the judiciary itself assumes the role of a neutral, science-like, infallible actor). On the other hand, when a more egalitarian, deliberative vision of power is achieved among the players, formalism is rejected and a more pragmatic, contextual and politically aware conception of the role of the judiciary and of the way its members should be trained prevails.

History. The secession of Buenos Aires As was mentioned in the previous chapter, the question of why the political power should be vested in the people of Buenos Aires haunts Argentina to this very day. The discussion between Unitarians and Federals follows the lines of a general opposition between Buenos Aires and the rest of the country. On one side is the powerful Province of Buenos Aires, with its main city and the riches of its harbor and its plains that, with the dubious excuse of being the big sister, attempted to centralize national power through Unitarian institutional proposals. On the other, the rest of the provinces aimed for a federal form of government to avoid the power to which Buenos Aires insisted in exercising upon them.

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However, this separation has not always been such a clear one and can actually be doubted at times.57 Indeed, a rabidly federal caudillo in both word and deed like Rosas managed the country from Buenos Aires in the same way as the most energetic Unitarian would have, impeding any other political participation. In 1852, Buenos Aires would prove that the opposite dynamic was also possible. Traditionally unitarian, Buenos Aires now showed her federal side upon being treated as just one more province and not the center of power, at the time in the hands of Urquiza, in Paran, Provincia de Entre Ros. That is, the Unitarian-Federalist opposition, so dear to the Argentine historiographic tradition, melts away when faced with less principled political conduct: Argentine political leaders were Federalist when they were far from the center of power, and Unitarian when they seized it. Buenos Aires disagreement focused on two proposals made effective by the rest of the provinces in the San Nicolas Agreement of May 31, 1852. The proposal to use the customs taxes collected in its port to underwrite the costs of the Confederation and that of organizing the Constitutional Assembly with an equal number of representatives for each province amounted to liquidate the political capital of Buenos Aires. Given this situation, the governing class of Buenos Aires divided between the defenders of coming to an agreement with Urquiza (the Governor of Buenos Aires Vicente Lpez y Planes, and his allies Juan Mara Gutirrez, Jos Benjamn Gorostiaga, Vicente Fidel Lpez, and the Deputy Francisco Pico) and the opposition (directed by the Deputies Bartolom Mitre, Pedro Ortiz Vlez, Ireneo Portela and Dalmacio Vlez Srsfield). Eventually, under Mitres leadership, the position opposite that of Urquizas triumphs and the Province of Buenos Aires secedes from the Argentine Confederation in 1852, which would last until the reunification in 1860. Thus, a unique opportunity to have an egalitarian institutional scheme is lost, this far. With the provinces holding military power and Buenos Aires economic and financial

Rivadavia proclam la idea de la unidad: Rosas la ha realizado. Entre los federales y los unitarios han centralizado la Repblica; lo que quiere decir que la cuestin es de voces, que encubren una fogosidad de pueblos jvenes, y que en el fondo, tanto uno como otro, han servido a su patria su nacional unidad. Los unitarios han perdido; pero ha triunfado la unidad. Han vencido los federales; pero la federacin ha sucumbido. El hecho es que del seno de esta guerra de hombres ha salido formado el poder, sin el cual es irrealizable la sociedad, y la libertad misma imposible (...) quien dice tener el poder, dice tener la piedra fundamental del edificio poltico. Ese poder necesita una ley porque no la tiene57 Alberdi, Memoria sobre la Conveniencia y Objeto de un Congreso General Americano, 1844, Obras Completas, II, p. 406. citado por Botana, Natalio R., La tradicin Republicana: Alberdi, Sarmiento y las ideas polticas de su tiempo, Ed. Sudamericana, Buenos Aires, 1997, p. 307-308.

57

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weight, circumstances were adequate enough to reach a sound institutional agreement on a checked and balanced power. Without Buenos Aires the supremacist conception prevailed and Urquiza went on to assemble a Constitutional Convention.

Law. Alberdis project and the Constitution of 1853

I dare say that the fate of South American states especially depends on the constitution of the Executive. 58

The deep spiritual statement that follows is attributed to Bolvar: The new states of the former Spanish America need kings with the name of presidents. Chile has solved this problem without dynasties or military dictatorships, by means of a constitution that is monarchic in its content but republican in its form59

With the secession of Buenos Aires, Urquiza, now at the head of the Argentine Confederation, continued to move on with the constitutional project. The attitudes of
58

Alberdi, Juan Bautista, Bases y puntos de partida para la organizacin poltica de la Repblica Argentina, Editorial Top Graph, San Miguel de Tucumn, 2002, Chapter XXV, p. 109. 59 The entire paragraph reads as follows: Monarchy supporters in America are not wrong when they state that we are not apt to be republicans; but their mistake is bigger than ours, the republicans, when they consider that we have more possibilities to be monarchic We should not be amazed by the beautiful example given by Brazil; we congratulate that country for their good fortune The former Spanish America has only one wise solution regarding a possible government system; it consists in elevating our people to the height of the government system that necessity has imposed on us, in giving them the aptitude to be republicans, to deserve the republic proclaimed by us, the one that we can neither exercise nor abandon, in improving government in order to improve people under said government, in improving society in order to improve power, which is its expression and direct result Luckily, the republic, so rich in formulas, includes many degrees, and accepts time and space demands. Its accommodation to our time represents the whole art of constituting it among ourselves. This solution has a happy antecedent in the South American Republic, given by the good judgment of the Chilean people: in the energy of the Executive they have found the power of the public guarantees offered by monarchy to order and peace, complying at the same time with the nature of the republican government. The deep spiritual statement that follows is attributed to Bolvar: The new states of the former Spanish America need kings with the name of presidents. Chile has solved this problem without dynasties or military dictatorships, by means of a constitution that is monarchic in its content but republican in its form, a law that links the tradition of past life to the chain of modern life. It is impossible for the republic to adopt any other form when it succeeds monarchy; it is necessary for the new regime to include something of the old one, it is impossible for one nation to jump from one extreme age to the other. The French Republic, an offspring of monarchy, would have saved itself through this method; but the exaggeration of radicalism shall bring it back by force to monarchy. How can we turn our named democracies into real democracies? How can we turn our real and nominal liberties into facts? Through which means shall we be able to elevate the real capacity of our nations to the height of their written supreme laws and their proclaimed principles? Through the means that I have indicated, known by everybody: educating people, through the European civilizing action, that is, through immigration, by means of an adequate civil, commercial and maritime legislation; by means of constitutions consistent with our times and our needs; by means of a government system supporting the action of all those means Alberdi, op cit, Chapter XII pp. 32-33-34 (emphasis added)

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Alberdi and Sarmiento towards Urquizas effort are quite telling. In 1843, Alberdi had left Uruguay to travel through Europe with Juan Mara Gutirrez (who in 1872 would be the Rector of the University of Buenos Aires who closes the Academy of Jurisprudence), and then continued his exile in Chile. From there, upon hearing of Urquizas victory, he sent him his Bases, which will end up being a key text in the writing of the Constitution that is finally sanctioned in 1853. His closeness to Urquiza and the possibility of shaping Argentinas political institutions shows a curious Alberdi: a more Unitarian, more supremacist thinker than the writer he was in his youth and the one he will be when Urquizas project will be defeated by Buenos Aires. In effect, the call of this opportunity is so strong that Alberdis text is clearly an exception in his thinking. Bases unlike his early Fragmento60 and his later works of his future European exile (when first Mitre and then Sarmiento assumed the Presidency of the Nation), is a work that was evidently written with the speed and conviction that its rousing nature required. Sarmiento, by contrast, who had fought in Urquizas Great Army, returned to his Chilean exile, angered by a series of misunderstandings, accused Urquiza of pretending to become a new Rosas and joined Mitre and the cause of Buenos Aires. In 1852 opportunity is in the hands of the provinces lead by Urquiza to hold organizing power and subjugate Buenos Aires to the will of the central government. The hope surely consisted in thinking that this time, from a province that was not Buenos Aires and with a leader other than Rosas, a project could be created that would build a national state that monopolized force, attracted European capital and immigrants, developed markets and would eventually set the foundations for a democratic republic. The Unitarian drive of the text, an exception in the generally federal thinking of Alberdi, shows the kind of attraction that the supremacist view has when political power seems close at hand. Thus, with bits and pieces of the French and the American traditions, Argentina will weave an institutional fabric during two decades (the 1850s and 1860s) that gave political power to a small leading group. This group, which was formed by Urquiza, Alberdi, Mitre, Sarmiento and Vlez Srsfield among others, would turn the chaotic Argentine territory in a homogeneous unit in terms of political and legal authority, with the objective of offering a generous and effective list of rights to all men of the world who

60

Alberdi, Juan B.; Fragmento Preliminar al Estudio del Derecho, Editorial Biblos, Buenos Aires, 1984.

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wish to dwell on argentine soil61. In other words: a) concentrate power b) to assume the

monopoly of force throughout the territory c) with the objective of guaranteeing the peaceful exercise of rights (especially those related to free trade, property, civil liberties and, in particular, the freedom of religion) d) to the immigrants who arrived from northern Europe. What follows is a description of the institutional details of the Constitution that enacted this political project. The characteristic feature of Alberdis constitutional proposal in his Bases, and of the 1853 Constitution, consists, as showed earlier, of a supremacist view, of the belief that the resolution of the conflict between the anarchy and the omnipotence of the sword62 that ruled the territory since 1810, would come with a strong Executive,63 from a constitutionalized Rosas.64 That is, it would stem from a democratic President in terms of form65, though conveniently not from the citizens direct votes66, and would be very close to a dictator in content, or in form and content, if required.67
National Constitution, Preamble. Between anarchy and omnipotence is the sword Alberdi, op cit, chapter XXV. 63 What difference does it make that the laws are brilliant if they will not be respected? What matters is that they are enforced, whether good or bad Alberdi, op cit, chapter XXV 64 Give the executive power as much power as possible, but always by means of a constitution Alberdi, op cit, chapter XXV. 65 The purpose of the revolution will be saved by establishing the democratic and representative origin of power and its constitutional and responsible character. As regards its energy and vigor, the Executive must have all the powers made necessary by the background and the situation of the country and the nobility of the end it is instituted for. Otherwise, the government will be so called but it will not actually be a government; and in the absence of a government, the Constitution will not be able to exist, that is, neither order, nor liberty, nor Argentine Confederation will be possible. Alberdi, op cit, chapter XXV. 66 To avoid the problems abruptly brought about when depriving a multitude of the rights they have enjoyed, the system of double and triple election can be used, which is the best means of purifying the universal suffrage without reducing or abolishing it, and of preparing the masses for the future exercise of direct suffrage Alberdi, op cit, chapter XXII. 67 Two systems were tried in the southern extremity of the previously Spanish America, to come out from that position. Buenos Aires placed the omnipotence of power only in one mans hands, raising him to the status of a man of law, as man of code. Instead of a mans discretionary will, Chile employed a Constitution, which gave the executive power the means to observe with the same efficiency of which a dictatorship is capable of. () Time has shown that Chiles solution is the only rational solution in republics which were previously monarchies. () Chile has shown that between the absolute lack of government and the dictatorial government, lies a possible regular government; and it is the government of a constitutional president who can assume a kings powers in the instant in which anarchy disobeys him as a republican president. () Chile knew how to introduce in this with a degree of statesmanship tact that other republics did not know. The inspiration was due to the Egaas, and the thought goes back to 1813. Since that time, Don Juan wrote: A balance of powers is an illusion. The moral and physical balance reduces every power to nullity. The division of the Executive and Legislative powers can neither achieve balance nor sustain the Constitution. The fact is that in the old times, and even today in England, the executive power formally participates in the powers of the Legislative. The present constitution is as adaptable to a mixed monarchy as to a republic. Facing great domestic or foreign dangers to the Republic, censorship or government can propose to the Junta Gubernativa, which will decree that all the powers of the government or of the civic council will reunite and concentrate in the president alone, with the rest of the offices and their respective powers still existing, whose type of dictatorship shall be for a limited period of time and
62 61

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Although some kind of separation of powers was needed, the idea consisted in the other powers not participating in the exercise of the Executive. In this way, the Constitution arranges a symmetric two-chamber Legislature where either chamber68 (or the Executive69) can start the discussion of a law but where support from both chambers is needed for its approval70 (support from the Executive is needed as well, for it has veto power71 and is the one that sanctions and enacts the law72). This generates the possibility

declared by the Junta Gubernativa. () Here lies the seed, sowed in 1813, from which, better digested and developed, arises the originality and excellence of the prevailing Constitution in Chile, enlightened by twenty years of peace Alberdi, op cit, chapter XXV 68 The laws can originate in either of the Cameras of Congress, through projects presented by its members or by the Executive Branch (Las leyes pueden tener principio en cualquiera de las Cmaras del Congreso, por proyectos presentados por sus miembros o por el Poder Ejecutivo), Constitution of the Argentine Confederation Chapter 5, Article 65. Laws can be projected by either of the members of Congress or by the President of the Confederation in a message directed at the legislature. Las leyes pueden ser proyectadas por cualquiera de los miembros del Congreso o por el Presidente de la Confederacin en mensaje dirigido a la legislatura, Alberdi, Juan B.; Bases y puntos de partida para la organizacin poltica de la Repblica de Argentina, Authors constitutional project, Article 71. 69 Ibid. 70 A project of law approved by the Chamber of origin, passes for its discussion to the other Chamber. Approved by each, it passes to the Executive Branch of the Confederation for its exam; and if it also obtains its approval, it is made into law. Aprobado un proyecto de ley por la Cmara de su origen, pasa para su discusin a la otra Cmara. Aprobado pr. ambas, pasa al Poder Ejecutivo de la Confederacin para su exmen; y si tambin obtiene su aprobacin, lo promulga como ley. Constitution of the Argentine Confederation Chapter 5, Article 66. A project of law approved by the Chamber of origin passes for discussion to the other Chamber. Approved by both, it passes to the Executive Power of the Confederation for its examination, and if it also obtains its approval, it is sanctioned as law. Aprobado un proyecto de ley por la Cmara de su origen, pasa para su discusin a la otra Cmara. Aprobado por ambas, pasa al Poder Ejecutivo de la Confederacin para su examen, y si tambin obtiene su aprobacin, le sanciona como ley. Alberdi, Juan B.; Bases y puntos de partida para la organizacin poltica de la Repblica de Argentina, Authors constitutional project, Article 72. 71 All or part of a project refused by the Executive Power returns with his objections to the Chamber of origin; they discuss it again and if it is confirmed by a two-thirds majority vote, it passes again to the Chamber of review. If both Chambers sanction it by the same majority, the project is law and it goes to the Executive Power for its enactment. The votes of both Chambers will be nominal in this case, for yes or no, with the names and foundations of the voters as well as the objections of the Executive Power to be published immediately by the press. If the Chambers differ on the objections, the project cannot be repeated in the sessions of that year. Desechado en l todo o en parte un proyecto por el Poder Ejecutivo, vuelve con sus objeciones a la Cmara de su origen; esta lo discute de nuevo, y si lo confirma pr. mayora de dos tercios de votos, pasa otra vez a la Cmara de revisin. Si ambas Cmaras lo sancionan por igual mayora, el proyecto es ley y pasa al Poder Ejecutivo para su promulgacin. Las votaciones de ambas Cmaras sern en este caso nominales, por s o por no; y tanto los nombres y fundamentos de los sufragantes, como las objeciones del Poder Ejecutivo, se publicarn inmediatamente por la prensa. Si las Cmaras difieren sobre las objeciones, el proyecto no podr repetirse en las sesiones de aquel ao. Constitution of the Argentine Confederation 1853, Chapter 5, Article 69. Each project rejected totally by the Chamber of revision or by the President is differed for the session of the coming year. Todo proyecto desechado totalmente por la Cmara revisora o por el Presidente, es diferido para la sesin del ao venidero. Alberdi, Juan B.; Bases y puntos de partida para la organizacin poltica de la Repblica de Argentina, Authors constitutional project, Article 74. No discussion of Congress is law without the approval of the president. Only he enacts the laws. Any determination rejected by him needs the sanction of two-thirds of both Chambers in order to be executed. Ninguna discusin del Congreso es ley sin la aprobacin del presidente. Slo l promulga las leyes. Toda determinacin rechazada por l necesita de la sancin de los dos tercios de ambas Cmaras para que pueda ejecutarse. Alberdi, Juan B.; Bases y puntos

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of mutual vetoes and guarantees that at least the negative power remains, as a last resort, in the figure of the President or, before involving the President, in the Senate. The most democratic Chamber, the Chamber of Deputies, becomes almost irrelevant under the control exercised by the Senate and the President. In fact, senators acquired a fundamental role in this scheme. Alberdis Constitution proposed one for each province73 (with a total of fourteen provinces), and the 1853 Constitution settled on two Senators per province.74 In any case, they assured the exclusion of minorities. Until the reform in 1860, coming from the province they represented in the Chamber was not a requirement.75 The age requirement was higher76 than the requirement for the Deputies and there was (and outrageously still is) a requirement that set a minimum income77 to those aspiring to hold this office. As a result, the votes of a few people over the age of thirty-five who can prove a fixed amount of income are enough to veto any initiative of the Chamber of Deputies.

de partida para la organizacin poltica de la Repblica de Argentina, Authors constitutional project, Article 76 72 He issues instructions and regulations that are necessary for the execution of the Confederation laws, taking care to not alter their spirit with regulatory exceptions. Expide las instrucciones y reglamentos que sean necesarios para la ejecucin de las leyes de la Confederacin, cuidando de no alterar su espritu con excepciones reglamentarias. Constitution of the Argentine Confederation 1853, Chapter 3: Attributes of the Executive Branch, Article 83, inc. 2. He issues the regulations and instructions that are necessary for the execution of the general laws of the Confederations, taking care to not alter their spirit through regulatory exceptions. Alberdi, Juan B.; Bases y puntos de partida para la organizacin poltica de la Repblica de Argentina, Authors constitutional project, Article 85. 73 It is composed of fourteen senators elected by the legislature of each province. Se compone de catorce senadores elegidos por la legislatura de cada provincia, Alberdi, Juan B.; op. cit., Chapter I, Article 53 74 The Senate will be composed of two Senators for each Province, elected by its legislatures by plurality of votes: and two from the Capital, elected in the form prescribed for the election of the President of the Confederation. Each Senator will have one vote. El Senado se compondr de dos Senadores por cada Provincia elegidos por sus Legislaturas a pluralidad de sufragios: y dos de la Capital, elegidos en forma prescripta para la eleccin del Presidente de la Confederacin. Cada Senador tendr un voto. Constitution of the Argentine Confederation 1853, Chapter II, Article 42 75 The requirements to be Senator are: to be thirty years of age, to have been a citizen of the Confederation for six years, to enjoy an annual salary of two thousand strong pesos or an equivalent sum. Son requisitos para ser elegido Senador: tener la edad de treinta aos, haber sido seis aos ciudadano de la Confederacin, disfrutar de una renta anual de dos mil pesos fuertes o de una entrada equivalente, Constitution of the Argentine Confederation 1853, Chapter II, Article 43. The requirements to be elected Senator are: to be thirty-five years old, to have been a citizen of the Confederation for tour years, to enjoy an annual salary of two thousand strong pesos or an equivalent sum. Son requisitos para ser elegido senador: tener la edad de treinta y cinco aos, haber sido cuatro aos ciudadano de la Confederacin, disfrutar de una renta anual de dos mil pesos fuertes, o de una entrada equivalente, Alberdi, Juan B.; op. cit., Article 57 76 Ibid. For Deputies, the age requirement is 25 years old : To be Deputy, it is required to have turned the age of twenty-five years, to have four years of citizenship. Para ser Diputado se requiere haber cumplido la edad de veinticinco aos, tener cuatro aos de ciudadana en ejercicio, Constitution of the Argentine Confederation 1853, Chapter I, Article 36). 77 Ibid.

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Moreover, the Senate chooses national judges,78 in secret79, from those nominated by the President.80 This was a key attribute given the characteristics of the Judiciary. In fact, although the Judiciary is hardly mentioned in the Bases, Alberdi assigns it a fundamental role in the interpretation of the law in such a way that they can only be amended in exceptional circumstances. Fear of the legislative change combines with the idea of homogeneity and monopoly of force to characterize his vision of legal certainty. Therefore, the unifying role of judges that comes from the American tradition regulates the Judiciary in the Constitution of 1853. Now utilizing the continental tradition, the Constitution gave Congress the faculty to enact national Codes. This fabulous concentrating power supposed a transfer of autonomy from the provinces to the Nation in terms of substantive (not procedural) law. The possibility is found in the original text of article 64 inc. 11 in the Constitution of 1853 and it established that it was an attribute of the National Congress To enact the civil, commercial, penal and mining codes, and especially general laws for all of the Confederation about citizenry and naturalization, about bankruptcy, about the falsification of the actual currency and public documents of the State, and those that require the establishment of judgment by juries. (Dictar los cdigos civil, comercial, penal y de minera, y especialmente leyes generales para toda la Confederacin sobre ciudadana y naturalizacin, sobre bancarrotas, sobre falsificacin de la moneda corriente y documentos pblicos del Estado, y las que requiera el establecimiento de juicio por jurados.)

78

The President of the Confederation has the following attributes () Nominates the Magistrales of the Supreme Court and the other lower federal courts, with agreement of the Senate El Presidente de la Confederacin tiene las siguientes atribuciones (...) Nombra los magistrados de la Corte Suprema y de los dems tribunales federales inferiores, con acuerdo del Senado, Constitution of the Argentine Confederation 1853, Chapter III, Articule 83, inc. 5. 79 La razn histrica de esto puede rastrearse en la posicin que sostuvo Sarmiento en el Senado en 1877 cuando manifest que el Senado, cualquiera que sea la libertad de la palabra, no es un tribunal donde haya la defensa libre para unos y otros de los cargos que se hacen, y es por eso que en todos los parlamentos se prohbe que las razones, buenas o malas, que tengan los miembros de un cuerpo para nombrar o no un funcionario pblico, no sean del dominio pblico, pues si se dice algo deshonroso, no tiene tribunal adonde apelar; y la palabra de un senador, por justificada que sea, o por deslenguada que sea, porque son las dos cosas lo mismo, no es justa, no limpia, las manchas que realmente dejan los cargos hechos. Oteiza, Eduardo, La Corte Suprema. Entre la justicia sin poltica y la poltica sin justicia. Editora Platense, p. 97. 80 Constitution of the Argentine Confederation 1853, Chapter III, Article 83, inc. 5.

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In this sense, the Constitutional Congress separated from the Bases of Alberdi, 81 since the Bases use the word legislate, faithful to his conception of the law, more closely aligned with the ideals of the American tradition. He affirmed that the purpose of the national laws referred exclusively to the regulation of inter-provincial relationships and interests, especially those linked to inter-provincial trade and the development of industry, as well as those of the provinces joined in the Confederation to face foreign powers.82 Even in the 1853 convention, one participant, Zavalia, objected to the inclusion of the Codes in article 64, arguing that such an attribute was exclusive to the provincial legislatures and that its inclusion was contrary to the form of government established in the Constitution. Gorostiaga responded by affirming that if this faculty was left to each province, the nations legislation would be an immense labyrinth from which inconceivable evils would result () It is useless to prove the necessity that the country has of a new legislation after the evils experienced in the two centuries that it has been abandoned to the Spanish laws that are confusing because of their number and incoherent among themselves. To this, Zabala responded that in the Argentine towns, there is no labyrinth of laws, in 42 years they have been absolutely lacking them. The most important capital of the provinces was undoubtedly the faculty to enact laws adequate to their organization, customs and peculiarities, less pompous laws that better suited their interests. 83 If one takes into account the codifying attributes of Congress together with the aforementioned article 97, that puts the federal courtthe Supreme Court of Justice of the Nationat the apex of the judicial organization with the jurisdiction to rule on issues of fundamental importance, including internal provincial matters, the consistency of the system is ratified yet again:

Art. 97. It corresponds to the Supreme Court and the lower courts of the Confederation: the knowledge and decision of all cases that deal with points defined by the Constitution
81

Art. 67: It corresponds to Congress, in the branch of the interior () to legislate in civil, commercial and penal matters. Corresponde al Congreso, en el ramo de lo interior (...) Legislar en materia civil, comercial y penal. Juan Bautista Alberdi, Bases, Editorial Plus Ultra, Buenos Aires, 2000, p. 296. 82 Idem., p. 168 y 169. 83 Constitucin de la Confederacin Argentina, Debates del Soberano Congreso Constituyente, Informe de la Comisin de Negocios Constitucionales, in Asambleas Constituyentes Argentinas, T. VI, p. 779 y siguientes.

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and by the laws of the Confederation; and by the treaties with foreign nations, with the conflicts of the distinct public powers of the same Province; of cases concerning ambassadors, public ministers and foreign consuls; cases of admiralty and maritime jurisdiction; of injunctions that requires the use of force; of the issues in which the Confederation is part; of the cases that arise between two or more Provinces; between one province and the neighbors of another one; neighbors of different Provinces; between a Province and its own neighbors; and between a Province and a foreign State or citizen.

In fact, the Constitutional Convention of 1853 had distanced itself from Alberdis text, in the sense that he had established that the knowledge and decision of cases that are about facts defined in the Constitution, by general laws of the State and by treaties with foreign nations, correspond to the Supreme Court and the federal courts In the note to this (his) article, Alberdi adds that it can be seen from the tenor of these attributes that the administration of federal justice only includes certain questions of interest to the entire State, and in no way those ordinary matters of a civil, commercial or criminal nature regulated by the legislation of each province and submitted to their respective provincial courts and juries. In all federal nations, and above all in the United States, this separation exists between local justice and national justice. 84 Once again, the Federalists in power created a virtually Unitarian institutional scheme that hegemonized power in the Executive, divided the Congress into two Chambers of which one, the Senate, had a strong aristocratic bias and the capacity to veto the initiatives of the other one, the Chamber of Deputies, which had more democratic characteristics. Moreover, the Executive and the Senate chose the members of the Judiciary, who had the capacity to control the constitutionality of the laws and decisions made by all of the other powers at the national and even provincial level. As if that were not enough, the Nations Congress could enact Codes that decided the substantive law for the entire Nation.

History: The battle of Cepeda and the possibility of reunification. Law: The reform of 1860 and the possibility of federalism. Politics: Economic and military deadlock and the possibility of equality.

84

Juan Bautista Alberdi, Bases..., op. cit., p. 304.

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An important event exists in the turbulent history of the 1850s that should not be overlooked. Despite the efforts to maintain peace between the Confederation and the seceded Province of Buenos Aires, the former lacked the economic means to subsist without the latter, although it possessed enough military power to impose its will. The self-restriction of Urquiza only lasted until 1859, and in October of that year, the battle of Cepeda erupted, in which the Confederation defeated Buenos Aires and forced its incorporation. However, the Confederation generously permitted Buenos Aires to form a commission to examine the content of the 1853 Constitution and eventually to propose amendments. This is a unique opportunity for a federal, egalitarian system to arise. In effect, it is a singular moment when a defeated party has power enough to negotiate accommodations of its interests and the other party the will of admitting complex processes of deliberation among different actors: the federal Executive, the two chambers of national Congress, the Governors, the provincial Legislatures and provincial and federal judges. Argentina could have had a national power in Entre Ros and an economically powerful Buenos Aires province to counterbalance the Unitarian drive of a powerful President. Thus, through a commission formed by Mitre, Sarmiento, Vlez Srsfield, Mrmol and Cruz Obligado, Buenos Aires presented a report with reform proposals, which will come to be known as the Constitutional Reform of 1860.85 As mentioned, the proposals accentuated the federal traits of the Constitution. From that perspective, the report proposed:

() that articles 5 and 6 are reformed, suppressing the clause that demands the submission of provincial constitution to the approval of the national government and restricting the power of federal intervention. In addition, it is advised that candidates for national legislators should have lived for a period of time in the province they represent. They emphasized that the powers not expressly reserved for the national government pertain to the provinces. It prohibited federal judges from simultaneously occupying

85

"Informe de la Comisin Examinadora de la Constitucin Federal presentado a la Convencin del Estado de Buenos Aires", Imprenta del Comercio del Plata, Buenos Aires, 1860.

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positions in provincial courts. It diminished the powers of the national Executive in the period of Congressional recess.86

The report also suppressed the revision by the National Congress of provincial constitutions, contemplated in article 64, but the most relevant reform to this dissertation, however, is that which tends to increase provincial autonomy with respect to the capacity to create substantive legislation (the issue of codification) and the capacity to interpret this legislation once it is enacted (the issue of the jurisdiction of federal courts). In 1860, the following text was added to article 64, inc. 11 (which gives the national Congress the power to enact codes): without said codes altering the local jurisdictions, their application corresponds to the federal or provincial courts, according to the things or people who fall under their respective jurisdictions. The Examination Commission said that since the Codes could be considered laws of the Confederation, it could be deduced from that that the provincial courts do not have civil or criminal jurisdiction, once said Codes are emitted by Congress. 87 Therefore, it inserted an addition to article 97 (which regulates the Courts jurisdiction) so that it was written: that the knowledge and decision of all of the cases that deal with facts defined in the Constitution, with the reservation made in the inc. 11 of article 64, corresponds to the Supreme Court and lower courts of the Confederation. In this way, the cases that deal with points regulated by the Code avoid the jurisdiction of the Federal Supreme Court. The representatives of Buenos Aires astutely created the possibility that, since they could not avoid the eventual creation of national Codes, the provinces could maintain interpretive authority of their texts. The Constitution that comes out of 1860 leans

() se reformaron los artculos 5 y 6, suprimiendo la clusula que exiga el sometimiento de las constituciones provinciales a la aprobacin del gobierno nacional y restringiendo el poder de intervencin federal. Adems se aconsej que los candidatos a legisladores nacionales deban haber residido un lapso de tiempo en la provincia a representar. Se enfatiz que los poderes no expresamente reservados al gobierno nacional pertenecan a las provincias. Se prohibi a los jueces federales ocupar simultneamente cargos en las cortes provinciales. Se disminuyeron los poderes del ejecutivo nacional en poca de receso del Congreso. Escud, Carlos y Cisneros, Andrs; "Historia de las Relaciones Exteriores Argentinas", Consejo Argentino para las Relaciones Internacionales (CARI), Ao 2000. www.argentinarree.com/historia.htm 87 Report of the Examination Comission of the Federal Constitution presented to the State Convention of Buenos Aires (Informe de la Comisin Examinadora de la Constitucin Federal presentado a la Convencin del Estado de Buenos Aires), Buenos Aires 1860, p. 31.

86

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towards a more federal position, distancing itself from the continental tradition and moving closer to the North American one.88 These changes offer the country the opportunity of an egalitarian system of government in a unique moment and set of conditions difficult to recreate. The moment will not last for long, and the system proposed will collapse along with it. History. The battle of Pavn. Buenos Aires runs the country. Bartolom Mitre also returned from his Uruguayan and Chilean exile together with Urquizas Great Army. He was an Army officer, educated in Uruguay. For reasons similar to those of Sarmiento who saw in Urquiza another Rosas, Mitre soon headed the opposition against Urquiza in Buenos Aires and in 1855 was elected President of the Provincial Legislature. But only a few months (and many instances of political violence in the Province of San Juan fueled by the two contending factions) after the Nation was reunified, Urquizas forces confront Mitres once again in the ambiguous battle of Pavn in September 1861. In it, apparently tired of national politics, Urquiza retired from the battle field with numerically superior troops, leaving triumph in Mitres hands, who became the first President of a unified Argentina in the 1862 elections. However, the victors at Pavn faced a problem of their own creation: the reforms introduced into the constitutional text in 1860. In effect, with the central power in their hands, the recently included federal tendencies of the Constitution went against their political project. The President of the Nation, with the collaboration of the National Congress as of their first meeting in 1862, took on the task of changing this situation. The difference was that now they could do so without touching the constitutional text, with the peace of mind that was provided by the fact that the key positions in the national political life were held by members of the same faction, that the customs revenues of the
The new constitutional text of these articles (which become numbers 100 and 101) reads like this: Art. 100. It corresponds to the Supreme Court and the lesser courts of the Nation: the knowledge and decision of all of the cases that deal with points enshrined in the Constitution and by the laws of the Nation, with the reservation made in the clause 11 of article 67; and by the treaties with foreign nations; of the cases concerning ambassadors, public ministers and foreign consuls; cases of admiralty and maritime jurisdiction; of the matters that the Nation is part of; of the cases that arise between two or more Provinces; between a province and the neighbors of another; between the neighbors of different provinces; and between a Province or its neighbors against a foreign State or citizen. Art. 101. In those cases, the Supreme Court will exercise its jurisdiction through appeal according to the rules and exceptions that Congress prescribes; but in all matters concerning foreign ambassadors, ministers and consuls, and in those in which some province were a part, it will exercise it originally and exclusively.
88

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Buenos Aires port were part of the national revenue and that they had at their disposition the fabulous mechanism that would later become known as Argentinas hyperpresidentialism.89

Law. Unitarism and the regulation of the federal Judiciary The federal tendencies of the national and provincial Executive and Legislative branches had to be tamed and the means implied legitimate, and even illegitimate, political activity. Indeed, from very early on in Argentine history, elections were tainted with fraudulent practices. The not-secret vote, the compulsory levy in order to vote and fraud in the electoral patterns were some of the practices that only stopped existing in Argentina with the Saenz Pea law of 1912. The President of the Nation did not spare his capacity to intervene in the provinces and, now in openly criminal terrain, he aided with political assassinations and armed repression of those who rose up against him. The issues of creating a single market in the entire country without internal borders, the peaceful application of the Constitution and national laws through the territory in order to guarantee immigrants their property rights, freedom of religion and the right to teach and learn, the construction of an understandable and efficient constitutional language depended on the activity of the Judiciary. However, there were not many judges or lawyers available and it is reasonable to think that the national government did not trust them, given their formation in Spanish law and the type of skills they had developed in the Academy of Jurisprudence. The last thing that the government needed at that time was judges who developed their own jurisprudence to exercise in the provincial autonomies and against the need to homogenize the normative content of the political system and guarantee its more Unitarian features. Therefore, in its first year of sessions, the National Congress enacted laws 27 (Organization of the National Judiciary) and 48 (Organization and Competence of the National Courts), which granted national judges and the Federal Supreme Court, in the final instance, the procedural mechanisms to control the constitutionality of the activity of public officials in the provinces. In effect, in October 1862, law 27 was enacted, inspired by the Judiciary Act of the United States. However, the lack of capable people to fill the positions of national
89

See Nino, Carlos S. Fundamentos de derecho constitucional. Anlisis filosfico, jurdico y politolgico de la prctica constitucional. Buenos Aires, Editorial Astrea, 2000.

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judges was clear, so a national system was created with a Supreme Court of five members and a Sectional Courts in each province. District courts were omitted and thus, cases went directly from the Sectional courts to the Supreme Court. The Senate approved the law with little discussion since the project had originated in that Chamber. In the Chamber of Deputies, there was more discussion and questions were raised that touched on the (eventual) problem of the adjudication of the Codes, without any resolution. Moreover, the presence of at least one national judge per province was criticized, but it was justified in two different ways. First, that from the point of view of equal access to justice and proximity to the courts, it was necessary. Second, it was so that some intelligent people went to the provinces 90 and that we should bring justice to the towns where only brute force rules91 In all the rest, law 27 regulates the jurisdiction that comes from articles 100 and 101 already transcribed. It is interesting to signal two other articles, as another way of showing the tendency to erase the mistakes of 1860. Article 21 gives section judges the capacity to hear, on appeal, the rulings and resolutions of the inferior Courts of Province, in the cases ruled by the Constitution and National Laws, as long as the victim does not prefer to go to the Tribunal or Superior Court of the Province. Article 23 affirms that when in a Provincial Tribunal there is a doubt or question about if the matter that is being treated should be ruled only by the Provincial Laws, and it is decided in the final instance in that favor, the victim may appeal before the Supreme Court. Thus, despite the fact that the exception of article 100 regarding the interpretation of the Codes against the disciplinary capacity of the national Judiciary remained in effect, the regulatory law of the Judiciary advanced in favor of centralization. A few months after the enactment of law 27, Congress began to discuss the project of regulating the jurisdiction and competence of the national courts, including the question of judicial review. On August 25, 1863, law 48 was sanctioned. It affirms:

ARTICLE 14. Once a trial is located before the Provincial Tribunal, it will be sentenced and finished in the provincial jurisdiction, and can only be appealed to the Supreme Court for the definitive sentences pronounced by the superior courts of the province in the following cases:
90 91

Chamber of Deputies, Intervention of Deputy Vlez, October 10, 1862. Chamber of Deputies, Intervention of Deputy F. Zuvira, October 10, 1862.

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1. When the validity of a Treaty, a law of Congress or of an authority exercised in the name of the Nation has been put into question, and the decision has been against its validity. 2. When the validity of a law, decree or authority of the Province has been put in question under the pretension of being repugnant to the National Constitution or to the Treaties or laws of Congress and the decision has been in favor of the validity of the law or authority of the province. 3. When the intelligence of some clause of the Constitution or of a Treaty or law of Congress, or a commission exercised in the name of the national authority has been questioned and the decision was against the validity of the title, law, privilege or exemption that is founded in said clause and is material for litigation.

As it stands, this system builds virtual embassies of the federal government in each of the provinces in charge of controlling the application of the National Constitution in the actions of provincial governments. The Supreme Court, with five members and, therefore, with a majority of three, may reject the decisions it finds unconstitutional at its discretion. It is a system of federal justice through which any potential unconstitutionality of provincial court decisions or of provincial administrations goes to the federal system and eventually to the Court. That is, if a provincial judge interprets the constitution in a different way than the national authorities, the matter becomes a federal problem. In this way, the Court exercises discipline over the lower courts, even the provincial ones. This ability is stressed in the Argentine case, given that the system rejects the common law idea of stare decisis, and embraces the continental one of decision case by case, which increases the discretionality of our judges. This combination of sources that define political power, as the American system does, but ignores the checks that make it republican (as the continental tradition does) is a clear strategy derived from the need to increase the concentration of discretional power in the national government. Of the three areas of control over federal constitutionality, i.e., the control of other federal powers, the power to discipline the lower courts, and the self-discipline of stare decisis, the Argentine Supreme Court assumes in its regulations something of the first, above all, the second, and rejects the third. The manner in which the Executive assumes its directional role and the forms taken by national politics blur the first task, leaving the

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National Judiciary to reinstate the role of control over the provinces that had been broken by the Constitutional Reform of 1860. Therefore, the capacity to discipline and homogenize that the national system acquires over the provinces is enormous. There is no provincial decision about Constitutional interpretation that cannot be revised by the national Judiciary, with the sole exception that appears again in law 48, as follows:

ARTICLE 15. When the appeal that the previous article authorizes is undertaken, the complaint must be deduced with the arrangement prescribed in it, in such a way, that its foundation appears from the presentation and has a direct and immediate resolution to questions of validity of the articles of the Constitution, laws, Treaties or commissions in dispute, being understood, that the interpretation or applications that the courts of the province made of the Civil, Criminal, Commercial and Mining codes will not give occasion to this recourse for the fact of being laws of Congress, in virtue of the disposed in incise 11, article 67, of the Constitution.92

This exception is no other than the one enacted by the 1860 amendment to keep under provincial jurisdiction the adjudication of the Codes. Nevertheless, as it stands, it needs the Codes to be enacted to become applicable. This far, there is virtually no provincial decision that is left out of the judicial review power of the Federal Judiciary.

Law. The national regulation of private law. The Civil Code If everything had continued as it was in the mid 1860s, then perhaps the federal courts would have had a lot of work disciplining through the exercise of judicial review the various ways in which the different provincial jurisdictions would adjudicate a huge and chaotic legal system (or a system presented as such). But a long felt necessity of a systematic, homogeneous legislation to unify the country will create the need to take advantage of the Congressional constitutional faculty of enacting codes. Thus, Velez Srsfield was entrusted with the creation of a civil Code that passed without discussion (a libro cerrado93) by the National Congress in

Emphasis added. It is interesting to note that the same expression is used for the most popular type of exam of Uba professors: closed book exams (exmenes a libro cerrado). The lack of deliberations keeps coming back in the different parts of this system93

92

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September 1869 and enacted by President Sarmiento. It became law of the land on January 1, 1871.94 This means that the most important political decision regarding the regulation of individual rights was made by one individual and was never discussed by the peoples Deputies, not to mention the provincial representatives in the Senate who accepted their legislative capacities to be encroached regarding substantive law in all matters regulated by the Code,95 which are almost all those related to the personal development of an individual from birth to death.96 It is no coincidence that the two loudest voices in opposition to the sanction of the Code were those of two prominent men defeated by the triumphant national project: Juan Bautista Alberdi and Vicente Fidel Lpez, two former professors of the Academy of Jurisprudence of Buenos Aires. The description of their position regarding the enactment of the Code will show that this political move did not go unnoticed. Alberdi, in exile and back to its federalist mood, and Lopez are impotent witnesses of the development of a Unitarian, supremacist system within which the enactment of the Code was the penultimate gesture. Their reaction to the Code can be divided in three issues: 1) the political issue, i.e., the Code as a way to diminish the federal features of the political system, 2) the issue of the sources of law, i.e., the assumption that all previous legislation is foreign or inadequate, and 3) the legal education issue, i.e., the Code as the appropriate text to teach law. Below they are analyzed in order.

a) The political issue Alberdi received the first part of the Code in France, where he had been in exile since Mitre took power. He had traveled as Ambassador of the Confederation under Urquizas orders and had become a tough critic of Mitres policies, above all his decision
94 95

Law 340. In fact, the exercise of the faculty to enact Codes that the 1853 Constitution gave to the National Congress triggers the article 105 clause: The Provinces do not exercise the power delegated to the Confederation. They cannot sign partial treaties of political nature; or issue laws on trade or internal or external navigation, or establish provincial customs; or mint currency; or establish banks with the power of issuing currency, without the authorization of the federal Congress; or dictate the civil, commercial, penal or mining codes after the Congress has sanctioned them; or especially dictate laws on citizenship and naturalization, bankruptcy, forgery of money or public documents; or establish rights of tonnage; or build warships or erect armies, unless in case of external invasion or of a threat so imminent that does not admit delay, reporting later to the federal Government; or appoint or receive foreign agents; or admit new religious orders. 96 Persons, torts, contracts, marriage, wills are some of the main subjects regulated by the Code.

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to take Argentina, together with Brazil, to a brutal war against Paraguay. From France he sends an answer to Vlez calling him my old friend and justifies his criticism stating that the work in question is destined to become the civil Constitution of my country97, for, had it been a mere literary work he would have left it unanswered. Both statements reflect a profound and brilliant ambiguity. The adjective old refers to the fact that they had known each other for a long time, but also to the fact that their friendship had ended long before, due to the political events that had separated them in the 1850s. The term civil Constitution refers effectively to the importance of the Civil Code, but also to the veiled accusation that Velez and his political group intended the Code to replace the National Constitution as the ultimate basis of the system, the laws written by Vlez to be the ultimate basis of judicial and political decisions, thus leaving aside the text of the National Constitution. But there is more. Alberdi, who had been the inspirer of a centralizing Constitution and had been opposed to the 1860 reform because it introduced, in favor of the provinces (but above all in favor of Buenos Aires) a series of federaloriented reforms, identified better than anyone the contradiction of the reformers who now wanted to enact a Civil Code:

At the same time we copy its [United States] federal Constitution and its political decentralization, we imitate the unitary and imperial codes of Brazil and France: as a result, we have the federation in the political code, and the unity in the Civil Code. 98 Why has not a federal Civil Code developed in the United States? Because the idea of a Code, unitary and centralist in essence, is incompatible with the idea of a country composed of many sovereign or semi-sovereign states. And those who reformed the Argentine Constitution of 1853, arguing it was not sufficiently similar to that of the United States, are the ones that today pretend to give a Civil Code for the whole Argentine Confederation! 99

Nevertheless, Alberdi himself could be blamed of supporting the 1853 Constitution which gave the Congress the power of enacting codes (even if it is true that in Bases, his proposal of 1852, this power did not exist). To such possible criticism Alberdi answers:
97 98

Alberdi, Juan Bautista; Obras Completas, Tomo VII, Buenos Aires, 1887, p. 80 Ibid., 84 99 Ibid., 85-86

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But that article [article 64, subsection 11 which allows the National Congress to dictate codes] was characteristic of the 1853 Constitution, which the reform aimed to suppress. Before the reform, the execution of that article would have been possible. After being cast in the mold of the Constitution of the United States, the Civil Code is a contradiction in terms, a legal absurd that is not conceived by the Argentine reformers of 1860 () And who were them? The same President who later decreed the creation of the Civil Code [Mitre] and the same legal adviser who was asked to write it [Vlez Sarsfield]. Because of the reform of the Constitution of 1853, the traditional unity of the Republic was abolished; and by the enactment of a Civil Code they now pretend to abolish the American-style federation that they themselves enacted in 1860. 100

Alberdi correctly identifies the contradiction of the representatives of Buenos Aires when they move from defending federalism in 1860 to dictating a code some years later. He calls the result of these consecutive modifications political monstrosity:

But the Civil Code project has forgotten not only the Constitution which should have served as a basis, democracy, that is, the content of the political and civil government of the Argentine Republic, but also the federation, that is, the form. The Code is, by itself, an abolition of the Constitutions federalism, which radically excludes the idea of a Civil Code. () The exception would make the Argentine Republic a political monstrosity in this respect. It is true that the Constitution conferred Congress the power of creating a Civil Code. But the author of the project of the code will not deny that this article was virtually abolished by the 22 reforms applied to its text in 1860, by which that Constitution was stripped of its centralist or nationalist content to make it similar (according to them) to the Constitution of the United States, which the contributors to the reform (Dr. Vlez, general Mitre, Mr. Sarmiento) declared the great model, the abstract and perfect ideal from which it was senseless to pretend to separate the Constitution of the Argentine Republic. Before the reform that decentralized the Argentine government more than it already was, the idea of a code was not very incompatible with a Constitution that was only called federal because it decentralized a little the traditional unity of the Argentine political government without altering that unity which remained in the rest of the legislation.

100

Ibid., 86

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But after the reform that considered absurd the idea of separating from the great model of the United States in the slightest way, the idea of a federal civil code, which was never present in the thoughts of North Americans, would be an absurd notion that only had precedent in the organization that the rash imitators of the North American federation pretend to give to the Argentine Confederation. When we consider that the authors of a Civil Code attempt are the same that made its reform impossible in 1860, we wonder: What are their principles? Are they unitary federalists, or are they federalists that want to become unitary after having mistreated the historical unity of their country?101

To answer such pertinent questions posed by Alberdi, to understand the character of this monster, it has been suggested here that the project of the reunified Argentinas ruling elite, when laws 27 and 48, not mentioned by Alberdi, are added, (and, to be fair, also Aberdis project of the Bases and Urquizas project of the 1853 Constitution) clearly tries to centralize power in the national government. That is, to erase the federal features that Buenos Aires had added in the 1860 reform when it was defeated by the Confederation and for a few months was like any other province, trying to multiply the centers of power. It is possible then to find Unitarians that federalized themselves when they did not have control over the central power and that unitarized themselves when they had it. That is how Alberdi understands it, in opposition to Velez Sarsfield, suggesting his old idea again, i.e.: centralization on the federal government but with the Constitution as the substantive text developed by means of national laws, not a Code:

What is then his political principle? The idea of a Code reveals to his regret his skepticism for the Argentine federalism. What the Republics of South America most urgently need are not Civil codes, but Governments, order, peace, simple security for the enjoyment of the even laws which they do not lack and that can be enacted under the gradual dictates of experience. What is it worth to improve civil laws all at once when they will become dead letter? The illness of the present laws is not that they are unfair, but that they are not enforced. With civil laws that do not level those of the code of the Siete Partidas, the United States enforces

101

Ibid., 107-108

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respect for property, the individual, the family, better than the best codified countries in South America.102

However, Alberdi proposes a slightly different version of this contradiction. He believes the Code is not an instrument for unity among equals, but the mechanism by means of which a province imposes its particular interests on the rest, once again the elder sister argument. Thus, Buenos Aires breaks the unity it appears to be building in order to regain independence from the rest of Argentina to impose her will on the subjugated provinces. Alberdi finds that the fact of having the work of Story103 as antecedent of the Code is proof enough. In fact, only if the national unity is broken it is not pointless to think in terms of conflict of laws among provincial states.104 It is the charge of the supremacy of the elder sister reenacted once again, this time with the elder sisters own interest contradictory to that of the others, and reigning supreme.

b) The sources of law issue But the enactment of a federal civil code cannot be seen just from the federalist perspective, it is also a move based on a belief about the inadequacy of the legislation in place at the time. Were there any defenders of the old set of Spanish rules left? Was it not the case that the system was chaotic and difficult to work with? Alberdi and Lopez have things to say about this issue. Alberdi reacts to Vlezs statement regarding Argentinas lack of legislation on which to work. Alberdi, the Professor of the Academy of Jurisprudence, cannot leave this question unanswered. If they lacked legislation, what was the basis of the work, studies and classes in the Academy since the second half of the eighteenth century? According to what law were Argentina founders educated?
Ibid., 86-87 Story, Joseph; Commentaries on the Conflict of Laws, 1834. 104 We could then see in the use made of the authority and the international doctrine of Story, for the project of the Argentine Civil Code, a new involuntary proof that the Civil Code inspired by Buenos Aires, far from having like every code the aim of unifying or centralizing the country, tends, on the contrary, to relax its inner consolidation, appearing to do completely the opposite. If the United States have continued having as many civil legislations as states, it is because they had them before coming together as a federation and because the nature of their federation itself allows to preserve that legislative variety. Here, the Civil Code project is consistent because of its nature with the pacts made in November and June and with the reforms done by virtue thereof to the 1853 National Constitution with the purpose of decentralizing the political power of the Argentine Republic in favor of one province and its foreign allies, to the point of making legally possible the conflicts that concern Story. Alberdi, op. cit. p. 104.
103 102

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Who are we Argentines taken for when we are called a Nation without a legislation of its own? We are not American Indians, natives of the Pampa, Guaran or Aimar peoples who lack an organization of their own. We are an educated race, from civilized Europe, we are the conquering race, not the defeated one. As an American nation independent from the Spanish people, the Argentine Republic has, from its origin, legislation that if it is not appropriate for its present democratic Government, it is at least so much its own as it is of Spain itself. Doctor Vlez knows this legislation better than anyone. He is a Doctor in Law specialized in such legislation and for the creation of his code he has to quote at every turn that historic legislation that he says, on the other hand, it does not exist. That legislation is one of the best in civilized Europe, and what it lacked in modern times was added by the American revolution by means of its Constitutions and its intermediate legislation, that represent in the Ro de la Plata the American translation of the liberal revolutions of modern Europe.105

Vicente Fidel Lpez, one of Argentinas greatest historians, was a native of Buenos Aires, who had been exiled during the Rosas dictatorship and defended the agreement with Urquiza against the more autonomous positions of that city. Coherently, he strongly criticized the sanction of the Civil Code and his arguments show something of the interpretive practice that had been included in the Academys training and in which he himself was also a professor:
Although we would like to disregard through fickle glasses the deep wisdom with which our laws in force are written; although we would close our eyes to the praise with which today they are studied and applied by the most accredited jurists in the United States, as incomparable doctrine, who live and think in the most democratic and reform-minded country of the world, it is enough for us to reflect, that those that have been written for at least six centuries, have six centuries of practical application to all of the interests of the family and the individual, have already acquired in the conscious of the people the natural flexibility with which moral things are molded to all of the folds of common sense and the popular mind. Their forms, their resolutions, without it being necessary to have read or even ever seen them, are found incorporated into the popular spirit of the transactions and legal life, forming that invaluable tradition that men of the Anglo-Saxon

105

Alberdi, op. cit. p. 102.

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race call common law and that upon which integrity and the force of the social body are based for them.106

There was a law, more to the point a body of laws adjudicated through the centuries that was part of the everyday life of the people. The enactment of the Code not only brought the danger of unitarism, it was also unnecessary. It entailed the destruction of an interpretative practice that regulated public life and that was taught to lawyers and judges in the university, in the classrooms of the Academies, in the offices of lawyers and in the discussions in the Courts. c) The legal education issue The creation of a Code is not only a political gesture that assumes a certain conception of what the law is. It calls for a certain way of legal education. Alberdi cites (and criticizes) Velez when the latter affirmed that

he should not follow Justinianos Instituta method because it is absolutely defective, and it will be of no use to form on it basic books for education. Maybe because the Instituta itself is the most famous book of legal teaching in history, followed by the schools for fifteen centuries, and copied by the most famous modern codes, from the French to the Chilean, the most modern of all. Is this a reason to be suspicious of its teaching method? It seems futile to add that codes are not made to produce fundamental books for teaching but for governing nations.107

On this last issue Alberdi correctly identifies part of the discussion but misses the strategic value of Velezs words. Here, two conceptions collide: on the one hand, law as an adjudicative practice of rules and legal education as a method to acquire the skills needed to successfully work within that practice, and on the other, law as a complete and consistent set of rules to be applied neutrally and legal education as a way to know the rules to be applied. In the latter conception the political role of legal actors is, in a sense, not to have a role at all, but to scientifically apply the Code in the entire nation.

106

En Cabral Texo, Jorge, Juicios Crticos sobre el proyecto de Cdigo Civil Argentino, Buenos Aires, 1920 En Tau Anzotegui, 289 107 Alberdi, op. cit. Pp. 93-94.

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That is why Velez needed to produce fundamental books for teaching (as Alberdi correctly points out): in order to govern the country. Codes are made for governing nations, in effect, but Alberdi misses that they can do that also when they become methods of teaching law, and, in this conception, the exclusive classroom text. These powerful voices, although isolated, show that the political project did not unfold by accident, but rather through the consistent decisions of a small group of national leaders. The Code, however, is a double-edged sword. On the one hand, it is effectively the possibility to concentrate political power and homogenize the national territory from a legal point of view. Yet, by enacting the Code, the clause of the exception to the jurisdiction of the Federal Judiciary introduced in 1860 began to be operative. Thus, was it not possible that the jurisprudential interpretation of the Code by provincial Courts and without the controlling power of the National Judiciary altered the meaning sought by the national government? Had the interpretation of the codes not been left out of the discipline of Law 48, out of the Supreme Court judicial review since the reform of 1860?

History. Legal education as we know it The point to remember here is that the Code did not arrive alone. It came laden with the formalism that the dogmatic school needs, doubting the idea of interpretation and erasing the possibility to exercise judicial review. The Code is not to be interpreted, but applied. In this particular moment of Argentine history, if it is successful in creating a formalist culture in legal actors, the exception of the 1860 Reform becomes moot, since the Code is applied without discussion, neutrally and dogmatically. Nobody would ever think that the Code is unconstitutional, because to do so assumes the possibility of its adjudication. If it is successful, the system of judicial review would only be an institutional spring used exceptionally in questions of public law since private law was enacted once and for all in the Civil Code. Politics had changed the system, but there was still one more reform to make in order to change Argentine legal culture, i.e.: the way legal professionals understood their role in the political system and defined what counts as law. Since legal education is where every legal actor starts his formal training in the ways of the established legal culture, the conception of the way they were trained had to be changed. As mentioned, in 1872, soon after the Civil Code had been enacted, the Academia de Jurisprudencia was 50

closed and the apprenticeship system was no longer a prior requirement for the practice of law. From that moment onward, four years of reading and repeating texts - basically the Code itself - would be enough to enter the profession. The way of teaching law changes dramatically from an education for an argumentative profession to a formal science learned by repeating texts. Continental formalism enters the classrooms of Argentine Schools of Law, aided by a very different system from the one that ruled when it originated in Europe. The need for standard national decisions of the central government brings about this change requiring lawyers to interpret the civil law not at their discretion, but in a consistent way. This political system that concentrates power and organizes the monopoly of force supports the constitutional rights enshrined in articles 14 to 20 of the National Constitution, which define in a generous way the rights of inhabitants (not only the citizens) of the Nation and guarantees its existence in the national territory as a whole. Thus, the circle of the political project offered by the generation that founded the national state is completed: concentration of powers to put an end to anarchy and to defend the rights of the inhabitants throughout the nation -above all, of those who had not yet arrived but would bring the benefits of work and industry that the combination of our geography and our race did not produce The system bore fruit: at the beginning of the twentieth century half of the Argentine population was foreign, the educational system homogenized natives and immigrants, the agricultural frontier expanded, power was successfully concentrated in Buenos Aires and, as part of the international division of labor, Argentina became one of the worlds ten top economic powers.

Final reflections What has this chapter not done? It has not described the Argentine political system as it evolved after 1872 (although further research could show how little it changed). Contrary to the design presented here it could have happened that the Court may have acted as a check to the President's power, and the provincial courts may have used the cracks in the system to exercise their jurisdiction (although further research could show how the Code became the supreme law of the land for many decades, and the Constitution was not used to challenge the Codes' regulations). Formalist legal education

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could have not been successful in creating a politically irrelevant legal culture (although further research could show otherwise). This chapter, on the other hand, has shown that the conception of political authority helps explain the changes in the way lawyers and judges are trained. If it has succeeded in showing how the legal training of lawyers and judges since 1872 is consistent with erasing its political power (not because it defers to the deliberation of Congress, as the French, but) because it defers to the will of the executive, I provide further proof of the supremacist, institutionally non egalitarian, leaning of the architecture of the system. These findings can even suggest that the immobility of the methods of legal training is a hint to the immobility of the presidentialist political game. To that proposition this chapter now adds the formalist irrelevance of lawyers and judges in the private law realm and the cynic, instrumental role of judicial review, in the brief instances when it appears in the Argentine political game. This dualism mirrors the cynicrealism/nave-formalism schizophrenia in legal education that was mentioned in Chapter 1 as one of it features: formalist law professors that as soon as they leave the classroom become cynic practitioners. Is this a suggestion that there exists a causal link that starts with the political game and continues with legal education, so that, for example, one cannot expect changes in legal education when they do not happen in politics? Not quite. The general proposition of this dissertation is that the regulation of the system of legal education (its methods and institutions and the role of the actors involved) is part of the larger political system and that the former tends to be functional to the latters ideological decisions about which conception of authority rules. What rests, in the next Chapter, is to show that this general proposition is not only adequate to explain the Bourbon reforms and the institutional changes in Argentina in 1872, but also similar changes in the institutions of legal education in other countries.

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