carolina gonzález rodriguez assistant professor of law …€¦ · · 2012-12-21out of the pure...

UNIVERSITY OF BUENOS AIRES

SCHOOL OF LAW

THE “REASONABLENESS” PRINCIPLE.

SCARCITY AS AN OBJECTIVE TOOL AGAINST COLLECTIVE

RIGHTS

Carolina González Rodriguez

Assistant Professor of Law & Economics

Paper delivered at the PRAGUE CONFERENCE ON POLITICAL ECONOMY -

CEVRO INSTITUTE

Prague, Czech Republic

October 26th – 28th, 2012

The “Reasonableness” Principle. Scarcity as a tool against collective rights

2

I would like to publicly express my deep gratitude for their generous contributions to

Eng. Roberto Helguera, Mrs. Eleonora Nazar Anchorena, Mrs. Diana Bencich, Eng.

Roberto Daneo, Eng. Federico Zorraquín, Dr. Agustin Etchebarne, Dr. Gustavo

Lazzari, Mr. Alejandro Rinaldi, Dr. Carlos Maslaton, Dr. Eduardo Marty, Dr. Federico

Fernández and Bases Foundation, and to the Hayek Fund, George Mason University,

for making possible my participation at the Conference and delivery of this paper at the

Prague Conference on Political Economy, Prague, Czech Republic. Your support

meant the world to me.

Thank you!


3

Introduction

Discussions regarding the distinction between moral and law are neither new nor solved. Hart (1958), Austin (1874), Kelsen (1934), St. Thomas Aquinus, Aristotle, Hugo Grotius, represented positivism and naturalism, while later Dworkin (1977), even though more oriented to iusnaturalism, tried to find a middle-term between both major legal theories.

Whether the judge must rule based upon what the law actually says or what the law means to say is a debate apparently already solved in favor of the first proposition. The more complex societies become, the more an “objective” theory is demanded, so to guarantee a “fair” provision of justice. This goal seems feasible to be achieved by blindly abide to the text of the law, granting equal treatment for all.

However, such peaceful solution proved far from being so. It was Austin whom brought up the issue of morality and the law, assessing that in spite of the fact that any given law (positive) would be deem unethical, it could only be understood void were constitutional precepts or positive laws rules it so. The mere fact that the law may be considered immoral would not be enough to make it void. And otherwise, a moral precept deemed valuable would not be mandatory unless a positive law, representing such precept, were passed.

But, as it has been historically tested, morality did impact on the legislation and to a larger or narrower extent always mirrored the beliefs and values of the time. No legislation is passed in open discrepancy to the demands and expectations of the society; neither long time passes until a strong clamor is reflected in the change of the law as a result of such claim. ´

In spite of the presumably success of positivism theory, the question whether the law must be moral or not remains unanswered, and morality of the positive law remains, either explicitly or more disguised, asked for and quested.

Given a conflict of interests and rights, as of Madbury vs. Madison1 on, there is virtually no discussion whether Courts are entitled to call for the morality involved in the law applicable to the conflict or not, understanding such morality as that of the Constitution. Laws against it are deemed to be void, since the Constitution’s morality is determined and framed by the Judiciary Power: “If courts are to regard the

Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply”.

However, Constitutional morality is something to arise out of the Court’s interpretation, and on the need of interpretation lays major disagreements and avenues for approach. Under such scheme, judicial review, based on the doctrine excerpted from Marbury vs. Madison, somehow has come to foster the idea of natural law, behind the positive law or act from the executive power, making it feasible and even possible the eventual annulment of said positive regulation.

The question, then, is if such constitutional morality remains the same, how would it cope with and provide for solutions to those conflicts involving “new” social values and beliefs? And hence, would not be convenient to have an open mind regarding periodically amendments which may turn Constitutions into an elastic instrument? Advancing conclusions of this paper, I may say that such would not be any solution

1 5 U.S. 137 (1803)


4

whatsoever to the problem of conflicts of law and, instead, would create incentives for different, strongest and most powerful groups to access power in order to promote and execute such amendments, leaving the minorities completely helpless to achieve the goal of having their interests also represented in the “new” constitutions. Nothing but the name (“Constitution”) of the former and original constitution would remain in these type of instruments.

Without getting as far as amending constitutions on a daily basis, in order to match its morality with that of the present day societies, even Hart has came to terms with the “minimum content of natural law”, which is contingent upon the nature of human existence.

Out of the pure legal field, and based on sociological experiences, the Radbruch’s Formula (1948) mirrored the nazi holocaust, conducted under a democratic system with a binding legal system, and emphasized on the distinction between the law “as it is” and the law “as it ought to be”, giving birth to the doctrine which, undeniably, admits the existence of a set of principles prior and hierarchical superior to those of the positive law. Laws which, even might have been properly passed, and in accordance to all procedures in force, fails to annulment were it expressly and dramatically collides with said set of principles; or when clashing with basic principles of justice goes as far as “to an intolerable degree”.

In later years, Latin America has witnessed a substantive drift towards a new set of moral values, which ineluctably involves collectiveness as their ethical core. These set of “new” social and economic values or circumstances have attained constitutional protection from purposefully amended constitutions, having granted, then, constitutional rank, and being known as “third generation rights”.

While the original set of principles fostered by classical constitutionalism was that of individual rights, the new “third generation” rights embodies social and collective circumstances which –according to this neo-constitutionalism wave- are suitable to have constitutional protection, hence being acknowledged as “social rights”.

But the legislative technique adopted to grant these rights constitutional hierarchy lacked of the coherence principle, given that incorporation of such rights to the Constitution, remaining the individual rights untouched and as valid and binding as before, putted the Courts in the awkward situation of dealing with contradictory positive rules, incorporated in none less that the “fundamental rule”: the Constitution.

Given the collision between both sets of moral principles (the individual and the collective rights), and being each as constitutionally ranked as the other, how would the judges or the Supreme Court deal with such imperative collision, without any other tool, or source, than the positive rule (the Constitution)?

Solution may come from the less positive concept possible: reasonableness, to which every court ruling must adhere indisputably. This may cause uncertainty and uneasiness in judges formed by and comfortable with the positive theory of law, since “reasonableness” is a highly slippery concept, variable depending on other elements (as slippery as the concept itself) such as “the average reasonable man”, or “the reasonableness of the times”. How and who are entitled to provide with precise boundaries as to what is “reasonableness”?

In this paper I will propose and gap-minder alternative: the use of the concept of scarcity as a measure of “reasonableness”, required to solve collisions between both sets of constitutional acknowledged rights: individual and collective.


5

I IUS NATURALISM AND IUS POSITIVISM

In spite of the long lasting discussion between positivism and naturalism, the fact is that PRINCIPLES lies in all (I would dare to say) legal theories and cases brought before Courts (particularly those heard by the Supreme Courts) of most Western countries which to a smaller or larger extent applies the Rule of Law.

Dworkin (1977) clearly differ “principles” from “rules”, being the earliest more important as to their moral weight. While “principles” are standards to be met due to their “justice, equity or some other dimension of morality”, rules are policies framed as goals to be achieved. This brings along the problem of being putted in the situation of having to choose between colliding principles, the Judge acting satisfactorily will place the heavier principle above the lighter. Of course no such placement could be mathematically appointed, and most controversies would rise as to which principle should go where. However, Dworkin’s point is to highlight the importance of questioning their hierarchy.

Same as with Rawls (1971) whom, in order to build his legal theory of justice as efficiency, stated two main principles: “each person is to have an equal right o the most extensive basic liberty compatible with a similar liberty for others”, and “social and economic inequalities are to be arranged so that they are both (a) reasonably expected to be to everyone’s advantage, and (b) attached to positions and offices open to all”. Following Dworkin’s remarks, Rawls (1971) emphatically placed them first and second in that order, since “They are to govern the assignment of rights and duties and to regulate the distribution of social and economic advantages”

Such precedence of principles is not to be challenged, and quite the opposite, mostly acknowledged as a matter of utmost importance for both legal theory and procedural constitutional law. In that sense, Alexy (2002) adds “The judicial function is to establish the conditions under which one principle takes precedence over another. In establishing this principle judges must seek to balance and optimize all the competing principles, and this requirement gives rise to the Law of Balancing: the greater the degree of non-satisfaction or limitation of one principle, the greater must be the importance of satisfying the other. This corresponds, in economic terms, to the law of diminishing margin utility.”

In his work Law, Legislation and Liberty, Hayek (1973) also deals with the idea of general principles as a source of Law, proposing its use (of the principles) as limits to authorities (including majorities) in the way they exercise their power.

Particularly, Hayek follows Carl Menger (1973) for whom liberty is the most “supreme” principle to follow, and liberalism is a “system of principles”. Under such scheme, the spontaneous order only admits, as a methodological concept, a system of general principles to shape duties and obligations.

Hence, the law must meet the requirements of being broad an general, as opposed to narrow and particular as most positive legislation is, acting as the framework to such principles and pointing out the goals to achieve by such legislation, but leaving the individuals free to choose as to which path to follow, making use of their “knowledge of circumstances of their particular time and place” (1945), in order to reach such frames. Hayek’s iusnaturalism is clear, while his theory lies on the most basic human right: to be free.

Hans Kelsen (1949) incarnated positivism by claiming that any given legal theory must be a theory of the law, but not of its contents, leaving open the doors to the most horrendous outcomes as history proved during the Nazi era.


6

But even when Kelsen seems to diverts from and rejects the study and analysis of any given principle involved in the making of the law, his theory of looking for the source of the law in a chain of previous, and higher hierarchical laws, ends up facing the “terrible” truth to know that, at such point, the higher in rank law (maybe the Constitution) is based upon a “fundamental law”, not being able to point out where such fundamental law comes from. Common sense would lead to believe that there must be some unwritten, unstated, non-formal… principles, given foundations for a fundamental law to be so, and not other.

It is Leoni (2003) whom raise a very proper question in regards to Kelsen’s position: where lies the right to define what “law” is?

Nevertheless, and as Sola (2006) points out, “even though the idea of individual rights as limits to the power of the state has profound impact in today’s constitutionalism, the belief that such limits may come from natural rights system (understood as a group of eternal and unchanging laws) is not longer acceptable since the upraise of positivism as dominant legal theory”.

Sein and Sollen in Kant… and Kelsen.

Leoni’s (2003) interpretation of Kelsen as a neo-kantian it is indeed proper. Kelsen’s theory largely resembles that of Kant’s when Kelsen claims the law as part of the Sollen, the world as it “ought to be”, while legal sociologist and iusnaturlist deals with the Sein, the world as it is, and makes it the foundations of the law, leaving aside the pretense of creating a better ruling system by imposing on society the parameters of the desirable, represented in the law as the premises to follow in order to turn “desirable” into “reality”.

Inclusion of third generation rights in Argentine Constitution is living proof of the Sein and Sollen contradiction, leading to an open confrontation not only between such third generation and first generation rights, but, perhaps more unfortunately, between the desirable world and the real world.

II PRINCIPLE OF REASONABLENESS

Societies have become more and more complex, particularly because of a whole new set of circumstances (some arose of the use of new technologies). Relationships have not only changed among existing groups, but individuals are not longer considered as such by the legal theory, but as long as they share some characteristics, are considered as members of groups which, in the past, were not even labeled as such.

Sola (2006) anchors his rejection to the return of ius-naturalism as the preeminent legal theory on the fact that such diversity would impede the application of a particular set of “principles”, since they might be proper and suitable for some groups, but not for others. While some groups stick on some values, other groups does so on a different set of values; ius-naturalism do not provide with the right answers since it is not possible to find legal principles valid a priori for all groups.

In spite of the fact that I reject the idea of considering groups as the subjects of any legal theory involving rights, duties an principles, such foundation of opposition to ius-naturalism still raises some questions: would such understanding be leading towards a moral or legal relativism, in which there would be not a core value to frame the relationships between groups? Intra-groups relationships and claims, in words of Leoni (2006) could be easily approached to and solved by intra-groups principles. But, precisely, the


7

complexity of societies makes it almost impossible for groups to live isolated from each other. Which would be the principles anchoring the legality of conducts between groups?

It is truth, however, that determining such “core” principles leads to the problems of legitimacy and of enforcing. But, precisely in view of complexity of modern societies, would it be fair to base the solutions to conflicts on pure dogmatic principles, in Kelsen’s Sollen, rather than in efficacy?

It could be properly understood that Sollen have been overcome by Sein, at the time that two laws collided, and even when reality proved to be so rich and entangled that there was no law comprehensive enough to rule and frame such complex circumstances. And hence, legal theory had to resort to principles, even though such principles were meant to be later understood as laws themselves.

However, “reasonableness” has not always been a desirable and expected principle to catch, but it developed only together with the vanishing of feudal and absolute power. And by the 18th and 19th Centuries, the british “reasonableness”, the French “recours pour excès de pouvouir” and the Italian “ecceso di potere” concepts rear up their heads.

But only by the 20th Century the Reasonableness Principle was included as a legal demand in order to provide with legitimacy all State’s acting. Formal and positive existence is no longer sufficient to make any law binding, but it must also now be “reasonable”. Lack of reasonableness would deem any given law void.

The trick lies, however, in the fact that someone –the Judge- must frame and determine what exactly, in each particular case, is “reasonable” to expect. Discretionary powers are, then, also limited by the demand of reasonability expected from the law, given that laws and rulings shall restrain rights of citizens by the acting and decisions made by the almighty state.

Along time, reasonableness has been more or less homogeneously understood as a broad concept which, in essence, would demand adequacy, suitability, acceptability, logic and equity from both the law and the rulings, setting aside absurd, outrageous, out of proportion…unreasonable demands.

Robert Alexy (2001) propose to understand the Judicial Review as a “natural” consequence of constitutional principles, understanding them as “optimization commands”, turning laws (Constitutions) into principles themselves, and as such (principles) a priori concepts: “distinction between laws and principles is, also, the framing of a normative-material theory of fundamental rights, and as such, a starting point to answering the question about possibility and limits of rationality in the fundamental rights scheme”.

This leads to the conclusion that principles (in general) as “optimization commands” are not only a useful tool for explaining some important or blurred issues, but are deemed imperative to properly provide with rationality and reasonableness2 to laws and rulings.

2 Sola (2006: 602) propose to understand “rationality” as the legitimacy control of the several many valorative

options at hand of state officers (except from Judges), while “reasonableness” as rather a demand for justice. For this paper’s purpose, “rationality” and “reasonableness” are understood as synonyms.


8

III PRINCIPLE OF SCARCITY

Even though, initially, the reasonableness principle arose as a tool against discretionary rulings, and a solution to the disproportionate sets of power between the citizen and the state, upon inclusion of “third generation rights” by the very same constituent, and making mandatory in the very same Argentine Constitution two colliding sets of rights, Judges are forced to take hand to the maximum extent possible of the “reasonableness principle” in order to properly serve justice to all involved.

Following Alexy, it could be properly said that individual rights (first generation rights) are principles themselves, being a core concern of the original Constitution of 1853, as well as collective rights included in Ammended Constitution of 1994. Hence, both of them are “optimization commands”, making it hard to grasp how could two opposite principles and interests be, at the same time, “optimum” since the concept unavoidably involves the idea of one better than every and all others… the one best possible.

Having as an example, Section 41 of National Constitution reads “All inhabitants has the right to healthy, balanced and suitable for human development environment, and to productive activities meeting all present needs without compromising future generation; and they have the duty to preserve it. Environmental damage will cause first and foremost the obligation to recompose it, according the law”.

This may eventually collide with Section 14 (right to conduct any legal business), as well as Section 17 (right to private property).

Same may happen with Section 75 (17) which acknowledges the right of “indigenous” people to “(…) community ownership and possession of land traditionally occupied”, as well as it orders regulation of delivery to this group of other land, “suitable and sufficient for human development”. Of course, it never clarifies as to how to do such delivery of land without affecting current owners.

It will be said that it is an economic concept which use would lead to accept and apply the most elementary principles of the discipline known as of Law and Economics. But, at the same time, any proper positivist judge should consider the concept as an efficient tool to serve justice in situations where there is no legal theory available since both contenders’ positions lies on the very same fundamental law (the Constitution).

Maltus (1826) was one of the first thinkers that brought to light the idea of scarcity, and even though his theories proved wrong along time, economics found their reason to be in the plain and simple (although not usually clearly portrayed) idea of scarcity as the fundamentals for the study of proper and beneficial allocation of scarce resources, in view of endless needs.

But it was Mises (1961) whom stated that economics is not purely a materialist science, since economics is nothing less that the study of human action. And in the path from the need to the actual satisfaction (or not) of it, men deals with decisions as to which way to go in order to overcome scarcity. In that way, men must make decisions which are not based only and upon materialistic premises, but also moral and emotional ones. Hence, and although scarcity refers to material goods and services, its study and consideration is not plainly material but mostly philosophical.

Benegas Lynch (1972) refers to Sowell (1980), in the same sense: “Perhaps the most widespread misunderstanding of economics is that it applies solely to financial transactions. Frequently, this leads to statements that ‘there are noneconomic values to consider’. There are, of course, non economic values. Indeed there are only noneconomic values. Economics is not a value itself, but but merely a method of trading off one value against another. If statements about ‘noneconomic value’ (or more specifically


9

‘moral values’ or ‘human values’) are meant to deny the inherent reality of trade-offs, or to exempt some particular value from the trade-off process, then such propositions need to be made explicit and confronted. Dedication to high and selfless ideals can be no more effectively demonstrated than by trading off financial gains in the interest of such ideals. This is an economic trade-off”.

This, together with Menger’s (2007) subjective theory of value, leads to Hayek’s (1945) proposal to consider solution to scarcity problems bearing in mind two main aspects: 1) impossibility for any given central planner to make adequate and efficient choices given his lack of knowledge and information; and 2) best allocation of scarce resources can take place only in free and open social schemes, in order to suffice the most needs possible.

Still, in order to sum up all the benefits of the subjective theory of value with the moral concept of economics, acceptance of private property is deemed imperative in order to glue all aspects, and provide for an objective tool to judicial decisions.

Were private property not admitted, any given distribution of assets would be irrelevant, since scarcity would neither be a problem to solve, and would not be any collision of first and third generation rights. In fact, the set of rights and duties would largely differ from that currently valid an admitted, and source of judicial claims.

Within this scheme, scarcity can be understood as a principle, given that most of the times involve a moral qualification as negatively valued. And at the same time, scarcity is possible to be objectively measured, providing with a certain and determined parameter to resort to.

However, scarcity alone would not provide with sufficient elements as to solve controversies. Most judges, given their dogmatic education would tend to think of it as an “unfair” distribution, and would lean towards assigning the scarce resource to that party that is less affected by it (or that is the “richer” of both parties involved).

In view of this, a second principle must be also considered: wealth is created before being distributed, and scarcity needs to be properly address in order to, first, avoid extinction of the resource, and then enlarging and increasing of the scarce resource. Creation of wealth only happens under certain circumstances and requisites met: incentives towards increasing of scarce resources are met only under private property systems.

Bearing in mind that extinction of resources could never be a socially valuable goal, efficient allocation of them would produce better (socially considered) results, linking efficiency to justice and fairness, in face of any other alternative solution which may seem fair in the short term, but would most likely guarantee such extinction.

This consideration alone would make court rulings favoring first generation rights over third generation rights, since a determined owner must be properly identified, and scarce resources allocated with those whom value those most, allowing exchange of subjective values translated into monetary terms.

As an example of this, given a claim of indigenous communities over land currently owned by a private owner, an efficient solution may bear in mind that the land is scarce, and hence its consideration must involve not only that given to it by either the owner and the claiming community, but that social value that comes from the use given to the land.


10

The only way possible to have an accurate approximation of such value is to resort to the market monetary value of the land. That party which values it more would offer payment of the highest price, making it clear that his subjective value of the land exceeds that of the money offered to pay in exchange of it. At the same time, the other party would be satisfied receiving the cash offered by the winning bidder. This solution would provide the judge with an objective measure where to turn to, given the collision of rights within the fundamental law; would provide with a more efficient solution than a purely dogmatic one and would consider the social value of the scarce resources involved in the controversy. All these would make the ruling reasonable and provide with an objective parameter of fairness, since all parties involved would be entitled to better up their starting points.

The issue of initial allocation of resources, which may make it more or less feasible for the contender to become the winner bidder largely, exceeds this paper. The contents only intend to suggest an objective tool for judicial review of matters involving equally hierarchical rights and controversies over scarce resources.

IV FRAMING THE PROBLEM. A BIT OF HISTORY

Legal discussion and scholarship on whether second and third generation rights should be admitted and enforced is not longer on track, and has, instead be overcome by other academic concerns towards which many Latin American scholars have turned their attention and efforts to.

Nowadays, legal discussion refers to the question if rather Courts should enforce such third generation rights, in the most suitable, fast and extensive ways (Motta Ferraz, 2011)… or not.

While “first generation” rights –those of the classical liberal tradition of individual liberties and private property- remain untouched, social and economic (second generation) rights have come to be considered equally important and hierarchical.

Basically, these set of collective rights were admitted scholarly first, and through judicial review later, as the solution to the remarkable inequalities and social gaps between the poor and the wealthy, in order to battle and defeat an “inequitable society”, in which the poor are every day poorer and the wealthy every day wealthier.

Within this scenario, solution provided by the hand of second and third generation rights seemed not only proper and fair but feasible. The more rights acknowledged and granted to the poor, the easiest would be for Courts to enforce supply of the needy by the wealthy, in spite of the never foreseen consequences of such determination.

While for first generation (classical liberal) rights the laissez – faire principle deemed imperative, and meant to set a very clear boundary to the government, keeping it as far as possible from the private interaction, second and third generation rights require an explicit, active and intensive action from the government, which is now in charge of supplying those goods and services indispensable for a decent living. Benjamin Franklin’s quote “The Constitution only guarantees the American People the right to pursue happiness. You have to catch it yourself” remains not only out of date but politically incorrect.

Upon inclusion of third-generation rights in amended Constitutions, the main question nowadays is, when Courts are called to hear cases claiming enforcement of such rights, how should they do so? What implications, if any, are there for the enforcement of third-generation rights? And, of course, is it possible


11

to identify conditions under which the enforcement of third-generation rights is likely to be relatively more or relatively less successful? But, above all, what would happen if such enforcement is disobeyed by the government, due to a lack of resources?

A) Constitutions in Argentina i) Liberal Constitution of 1853.

Argentina presents a quite remarkable case of underdevelopment.

By 1850, the country was nothing but a vast, empty, deserted and poor land, inhabited mostly by gauchos (a mixed race of Indian and Spanish), struggling to survive bloody wars in the quest for unity and national organization.

On a perhaps improper briefing, it could be said that by 1829, after Argentina’s independence from Spain, Juan Manuel de Rosas took over and became governor of the largest Province of Buenos Aires, ruling the struggling-to-be-born nation with a fist of iron, and imposing himself as the first dictator and populist of Argentina’s history. Unfortunately he proved not to be the one and only, and several others followed until present day.

His government was violent, corrupt, and extremely narrow and considered a brutally repressive regime. At the time, there was no such thing as “freedom of speech”, and any respect whatsoever for the lives, the properties and the liberties of his adversaries and political enemies.

Nevertheless (or perhaps due to such outrageously oppressive situation) a group of bright, cosmopolitan and educated men fought Rosas, and defeated him, both in the war and in the ideas battlefield.

Among these remarkable men was Juan Bautista Alberdi, a young lawyer, an orphan whom turned out to be the “father” of the first Argentine Constitution of 1853.

Alberdi was one of the intellectuals known as “Generation of ’37”, whom were adherents to the the liberal ideas of the Enlightenment. Due to his strong opposition to Rosas dictatorship, Alberdi moved overseas, living on exile in Uruguay, Europe and finally Chile, where he became a prominent lawyer.

Alberdi’s major legacy was the later passed National Constitution of 1853, which set the foundations for a modern and updated state, representing the moral values of the times; values and principles derived from those of the Constitution of the United States of America, but properly fitted for the local reality.

The Argentine Constitution cherished the values of individual freedom, limited government and private property, remaining loyal to the local characteristics of the empty land, the uneducated population and the idiosyncrasy of the newly formed “argentines”

In his work “Foundations and Starting Points for the Political Organization of the Republic of Argentina” (1852), which is basically a plain text explanation of the Constitution, Alberdi remarks that “The Constitution which is not original is bad, because being the expression of a special combination of facts, men and things it must essentially offer the originality affecting such combination in the country to be formed”. This paragraph, among others in Alberdi’s vast bibliography gives proof that his understanding of a liberal constitution reflects the principles and values included in the Constitution of the United States of America, but it bears the particularities of the young Argentina.


12

It a short period of less than 30 years (1853/1880), Argentina went from being a deserted country, with high illiteracy and poverty rates to become one of the most wanted destines for the European immigrants looking for a future, broader than that available in their home countries at the time.

The Constitution clearly and openly favored the basic freedoms, including, of course, the liberal principles which make possible the setting and growth of free markets and free societies. Those were then known as “first generation” rights, understood as the rights acknowledged as individual rights.

Between 1880 and 1914, Presidents Roca, Juarez Celman, Pellegrini, Luis Saenz Peña, Uriburu, Roca again, Quintana, Figueroa Alcorta, Roque Sáenz Peña y Victorino de la Plaza formed what was later known as “The Generation of the 80’s”, given that all of them had in common their commitment with development, growth and respect for individual liberties (ALEMANN, 1989:130)

All of them ruled the country strictly following the liberal principles of the Constitution, providing history with a case-of-study of for the sociological and political analysis of public policies which drove Argentina from being a poor, deserted, rural country, to an example of the outcome one may get were political will were in favor of civil and economic freedoms.

Success was achieved, and along 35 years Argentina increased dramatically its population (largely formed by European immigrants), the creation of the BANCO HIPOTECARIO (similar to Fannie Mae and Freddy Mac in the US), gained territory to the Indians located in Southern Argentina, Patagonia region, settled thousands of miles of railroads and roads, the big Buenos Aires port was built by then (feeding Buenos Aires until turning it into the big city it actually is).

The Constitution granted most important individual rights, such as: the right to work and to form companies and freely enter into business contracts; to trade with both domestic and foreign counterparties; freely enter, remain and leave the Argentine territory; the right own to private property; to teach and to learn, just to name the more relevant liberties to trade and markets.

The liberal principles were putted in action until –approximately- 1930. Argentina was not an exception of turbulent times and economic turmoil caused by the crash of 1929/30 in the US. For Argentina, major outcome of the 30’s crisis was the crash of international market prices for agricultural commodities, which were (are) Argentina’s main product.

Interventionism took over, and gradually political economy passed from passive to active, passing many rules and laws both addressing the markets and turning the government into a major player and partner for private producers. It is by then that the Supreme Court, following the trends set by the US Supreme Court diverts from its original track, giving birth to what was later known as the “Emercency System”. By this, the Court grants certainty to every law and regulation passed by the government in the break of the economic crisis, setting strict limits to the Constitutional individual rights.

ii) Constitution of 1949

In 1945 populist president Juan Doming Peron got in power, changing forever the liberal outlook under which Argentina was politically born by mid 19th Century, following along the fascist trends of Germany and –particularly- Italy, where Perón visited and learned from the Duce’s fascist regime.

As of mid 20th Century on, unfortunately Argentina diverted from the liberal system of organization, and moved toward collectivism, particularly by admitting changes in labor laws, and amending, in 1949, the Constitution, so to include Section 14bis, related to salaries, unions, social security and labor privileges.


13

Upon a military coup d’etat, known as the “Liberation Revolution” which overthrown Peron from power, the 1949 socialist constitution was void, returning to the Constitution of 1853, except from the Section 14 bis included by the peronist regime… which unfortunately remains until today.

iii) Constitution of 1994. Judicial Review.

In 1994, and mostly due to the political will of former President Carlos Menem to run for a second term in power and be re-elected, the Constitution was amended, allowing re-election for two consecutive terms. As what has happened in 1949, “social rights” were expanded, and those known as “third generation rights” were included, causing a major clash of principles within the very same constitutional body.

Sections 36 to 43 of the “new” Constitution rules the whole set of “social” rights, such as environmental rights (the right to a “healthy” environment); the right to keep and preserve the biodiversity and the “natural and cultural patrimony”; consumer rights and –perhaps the most troublesome of all- the right of the indigenous communities to “possession and COMMUNITY OWNERSHIP of the lands which are traditionally occupied”. The National Congress is nowadays entitled by the new Constitution to “rule the delivery of other land suitable and enough for the human development, none of which would be disposable, transmissible or subject to taxes or seizures of any kind” (Section 75.17)

However, and fortunately, in spite of the fact that the “new” social rights were included in the amended Constitution, the original –first generation- individual and civil rights and liberties were kept, giving room for a major clash of principles, and proving a lousy legislative technique.

Such circumstance caused what Alexy (2010) called the creation of Constitutional rights. He advert two different paths to constitutional rights. They may be aroused out of RULES or out of PRINCIPLES. And the difference is not minor since application of either (rules or principles) will affect not particular fields of law, but would affect all of the doctrine of constitutional rights and legal system.

Main problem with such “third generation rights” comes from the fact that they became constitutional based on principles, rather than rules. And as Alexy clearly points it out, such outcome cause rights which are rather “requirements of optimization commands”, since it is neither clear nor feasible for them to be actually exercised due to a lack of resources (both legal and material) necessary for such enforcement.

With upcoming of such third generation rights, living together with the remaining first generation rights, the Supreme Court irremediably has been already putted in the position to rule on whether first or third generation rights must precede. And having this clash of principles, Supreme Court falls into what Alexy also represents as the “Balancing theory”, which is the core of the proportionality test.

However, such balancing –proper of the principles creation system- inevitably involves the subjective appreciation of terms, away from the long wanted objectivism which appears as the most perfect and plain exercise of justice: one for all.

In the quest for getting rid of such subjective perspective (which allegedly would blur Justice) the rule creation system tears up its head, providing with the solution to make justice as an objective measure applicable to any and all.

Positivism, then, lies in the fact that the rule is written and stated, and it reads the very same for everyone. However, such “solution” proved to fail as objective, since even the rule must be interpreted.


14

As Dworkin (1977) reminds us, Austin (1832) based the obligatory nature of the law in the fact that it was so deemed by the “sovereign” people’s will. But such will cannot be comprehensive of every and all circumstances involved in a sophisticated society; hence, the Judge is entitled to enforce the law using his discretion at the time to interpret the law, and even to create the law when there is no law applicable to the peculiar situation.

Even Hart (whom questioned Austin’s positivism) ends up stating that the chain of laws to be followed in order to admit validity of the particular rule ends up in a “fundamental law”, which is not a positive, formal law, but a standard, a subjective creation of the jurist in order to compare it with the Constitution (or earliest law) and check its validity3.

Under such scope, even the quest for avoiding the balancing principle may fall into a “positivist” or a “natural” perspective.

Alexy thinks of the work of Ernst Forsthoff (1976) as the positivist solution, and of the work of Ronald Dworkin (2006) as the non-positivist (or neo-naturalism) alternative. While the first relies on the classical interpretation rule of the mere wording of the constitutional rights, the “will or intention of the constituent” and the historical context of the time when the right became constitutional, the later encourages the interpretation under the morality rule; whether the constitutional rights have to be balanced or not is a secondary concern, only after figuring out what the morality of the situation demands.

The Argentine Supreme Court (and inferior Judges as well) has, remarkably and continually, adhered to the positivist interpretative system, but still was forced to rely on the proportionality test, as well as on the principle of reasonableness.

In such circumstance is based the proposal of this paper.

V CONCLUSIONS

In the last few years, collective rights gained weight in contrast with individual and civil rights. Known as first and third generation rights, political ideas lean towards the latter in the quest for a “more just and fair” society, and pursuing the praiseworthy of a more equitable distribution of wealth.

In an attempt to position such expectation at the top of the list of goals to achieve, many Latin American, including Argentina, countries have amended their national Constitutions, in order to include a non-comprehensive list of what could be considered new set of rights granted not to individuals but to different groups.

This trend has led to acknowledge rights to collective bodies which, in general terms, are jointed only by a handful of aspects of the total elements involved in the moral, intellectual and emotional elements that form a human person. Still, third generation rights, known as social and economical rights, aims at what is to be considered valuable in present times, assuming that wealth can be rather distributed than created, leading to a conception of zero sum game.

3 Farrell (1972) says that “Laws are either valid or not when they match the validity criteria adopted by the jurist. It

can, therefore, be sai that validity is not a `characteristic´ of the law, but a ‘relationship` between the law and the chosen criteria: when the law meets the criteria is then considered valid”


15

However, such third generation rights were included in amended Constitutions without removing original first generation civil liberties, causing a major collision between two sets of rights.

To amend Constitutions in order to provide collective rights with constitutional hierarchy is plain proof that the legal theory of positivism rules as the leading trend of legal though in Argentina and other Latin America countries. While for these countries the Constitution is the highest law to which all others must subject, collective rights are now equally protected against any otherwise interpretation as the original civil liberties are.

But such “solution”, from the positive perspective, turned out to be a knife that cuts both ways: while part of the constitutional system, still are not core and must share importance with first generation rights which (fortunately) were not removed from Constitutions upon amendment.

At the same time, and in view of a collision between two sets of rights, the positivist Judge is orphan of an objective (“justice for all”) tool, since both are living under the same constitutional roof.

This situation brings along a major institutional problem. Third generation rights may (and they actually does) be left as measures of desire, far from actually becoming a reality, since resources to enforce them shall proved scarce an insufficient, putting Courts in the awkward situation to see its rulings unfulfilled and not carried out.

It also brings along the new circumstance to have individuals and groups legally competing for the same scarce resources. But without an objective salvation board, positivist judges must turn to other not-positivist at all resources such as the reasonableness principle.

Even though this principle has been initially thought of as part of the legal theory that discussed the problem of abusive power of the state before the individual, jurisprudence has developed it as to be applied in any given circumstance that there is either a legal loophole, or a sound collision of rights.

Considering scarcity not as a merely economic concept, but as a rather philosophical one, since it is scarcity what turns into the turning point of human action, at the time to choose among different ways to go in order to satisfy the need of scarce resources, this paper propose the use of the concept as an objective tool for the Judge putted in the situation of having to decide whether granting or not particular rights to either of the parties (individuals or groups).

The proposition involves an a priori understanding: in order to solve scarcity problems, it is imperative to embrace the right of private property, since it is the only system which efficiently fights scarcity, by properly allocating rights in the head of those whom value the scarce resource more.

Putting together 1) the lack of a “fundamental law” which may serve as objective tool for the positivist judge to rule over first and third generation rights collisions; 2) the fact that the principle of reasonableness do not provide with any objective measure, leaving the Judge alone with his subjective beliefs and values to decide upon the case; 3) third generation rights demand an active acting by the state or government, either by actually providing the (scarce) resources or by ordering its provision by another individual or group; 4) Goods and products to be provided for are, indeed, scarce, and scarcity is a measurable, objective concept; 5) the social aggregate value of a ruling bearing in mind scarcity would lie on the fact the resources allocated on those whom valued them most would avoid extinction of the resource.


16

Finally, and even though the topic largely exceeds the contents of this paper, any given rule which may be issued bearing in mind the scarcity concept would not only be fair, but it would provide society with the aggregate value of considering justice served efficiently.


17

Bibliography

ALBERDI, Juan Bautista: Bases y puntos de partida para la Organización Política de la República Argentina. 1852. ALEMANN, Roberto: Breve historia de la política económica argentina. 1500- 1989. 1989. Editorial Claridad. Buenos Aires. Argentina. ALEXY, Robert: La construcción de los derechos fundamentales. 2010. Editorial Ad-Hoc. Argentina.; A theory of constitutional rights. 2002. Oxford University Press.

AUSTIN, John: Lectures on Jurisprudence: or the philosophy of positive law (1874).; The province of

Jurisprudence determined (1832)

BENEGAS LYNCH (h), Alberto: Fundamentos de Análisis Económico (1972). 2011. Ediciones Sociedad Abierta. Panamá. Panamá. DWORKIN, Ronald: Los Derechos en Serio. 1993. Editorial Planeta. Argentina.; Justice in Robes. 2006.

Harvard University Press.

FARRELL, Martín Diego: Hacia un criterio empírico de validez. 1972. Editorial Astrea. Argentina. FORSTHOFF, Ernst:. Probleme der Verfassungsinterpretation, 1976. Baden-Baden. Germany. HAYEK, Friedrich. Law, Legislation and Liberty.1973/76/79. Routledge and Kegan Paul. (Derecho, Legislación y Libertad. 2006. Union Editorial. Madrid. España); The use of Knowledge in Society. 1945. American Economic Review, XXXV, Nº 4. Pittsburgh, Pennsylvania. U.S.A.

HART, H. L. A.:Harvard Law Review, Vol. 71, No. 4 (Feb., 1958)

KELSEN, Hans: Pure Theory of Law. 1967. University of California Press.

LEONI, Bruno: Lecciones de Filosofía del Derecho. 2003. Union Editorial. Madrid. España. MALTHUS, Thomas: An Essay on the principle of population. 1826. John Murray. Albemarle Street Editor. London, U.K. MISES, Ludwig von: Epistemological relativism in the social sciences, in Relativism and the Study of man. 1961. Van Nostrad Editors. Princeton, New Jersey, U.S.A. MENGER, Carl: Problems of Economics and Sociology. 1963. Louis Schneider Editor. University of Illinois Press. Illinois, U.S.A.; Principles of Economy. 2007. Ludwig Von Mises Institute. Auburn, Alabama. U.S.A. MOTTA FERRAZ, Octavio Luiz. Harming the Poor Through Social Rights Litigation:Lessons from Brazil. 89 Texas Law Review, 1643. Available at http://www.texaslrev.com/?s=MOTTA+FERRAZ

http://www.texaslrev.com/?s=MOTTA+FERRAZ


18

RADBRUCH, Gustav: Vorschule der Retchsphilosophie. 1948.

RAWLS, John: A theory of justice. 1971. The Belknap Press of Harvard University Press. Massachusetts. U.S.A. SOLA, Juan Vicente: Control Judicial de Constitucionalidad. 2006. Lexis-Nexis, Abeledo Perrot. Buenos Aires. Argentina. SOWELL, Thomas: Knowledge and decisions. 1980. Basic Books Editors. New York, New York. U.S.A.

carolina gonzález rodriguez assistant professor of law …€¦ · · 2012-12-21out of the pure...

Documents