The dispute over the rule of law and its crisis between liberalism and corporatism (1930-2001)

Dr. Agustín E. Casagrande

Duration of the research project: 01/2018 – 12/2018

Argentina’s national and economic crisis in 2001 gave rise to intensive and fundamental debates on the design of the future political and social order. What should a just society that guarantees human rights and accepts and integrates diversity look like? In response to the crisis and the neoliberalism blamed for it, a policy of state hegemony has developed over the last fifteen years that is characterized by two main features: First, state intervention has been increased. Secondly, social diversity has been strongly promoted, in particular through the legal recognition of certain ethnic groups and social movements. The resistance that arose against this opposed the populist “power state” with the bourgeois-liberal “constitutional state”. This concept of the rule of law then came under ideological suspicion – it became synonymous with market-liberal justification strategies. At present, it can be said that the “rule of law” is in crisis as far as its legitimizing foundation is concerned.

In Argentina, the political and moral charge of the concept of the rule of law with alternating positive or negative connotations has a long tradition and is strongly linked to the socio-political implications assumed in each case. In the Argentinean debate, the concept of the rule of law could thus incorporate liberal or rather authoritarian, market-liberal or social-emancipatory, equality-based or difference-based concepts.

In the history of Argentinian constitutionalism, two different and contradictory constitutional traditions have emerged: the Anglo-Saxon liberal tradition and the nationalist state tradition. The basis of the liberal constitutional tradition was the political economy of the late 18th century, whose anthropological perspective only recognized economically rational individuals who treated each other as equals. In this model of formal equality, there was no room for the recognition of legal inequality and special legal spaces. For its part, the nationalist-state tradition, which was strongly influenced by corporatism and whose hegemony lasted from 1930 to 1955, relied on the state as the engine of social development. Not only corporate representation was part of this concept, but also the recognition of different actors and groups with special rights and obligations.

Based on these findings, the aim of the project was to historically reconstruct and contextualize understandings of the rule of law between 1930 and 2001. The key questions were:
Did the emergence of corporatist patterns of order around 1930 lead to a replacement of the traditional liberal, equality-based understanding of the rule of law with an understanding of the rule of law that recognizes and even promotes inequality?
In what way was the traditional understanding of the rule of law later rehabilitated or modified and enriched with other content?

Methodologically, this meant in detail a) analyzing the process of translating the German concept of the rule of law in a different semiotic space; b) describing the transformation/assimilation of the concept in the language of Argentine public law; and c) examining the different uses of the concept of the rule of law in different historical and political contexts.

This was intended to close a considerable research gap not only in Argentine legal history, but also in Argentine constitutional law.

Publications

Monograph:
Gobierno de justicia, poder de policía. La construcción oeconómica del orden social en Buenos Aires (1776-1829). Ed. Tirant lo Blanch, Valencia. (Jan. 2019). 257 pp.

Book Chapters:
Agustín E. Casagrande 2018, “Del progreso Estatal al presentismo local. Historia sociológica y sociología jurídica en las aulas de derecho” en Felipe Fucito (Ed.), Sociología Jurídica. Universidad de Buenos Aires, Eudeba, In press.
Agustín E. Casagrande 2018/19 “Estadística en el Río de La Plata a comienzos del siglo XIX. Límites conceptuales para la “fuerza del Estado”, en Agüero Alejandro, Tau Anzóategui, Tradición jurídica y discursividad política en la formación de una cultura estatal. Trayectorias rioplatenses, siglo XIX. Inhide, In press.
Voz del DCH: Confesos. En proceso de revisión y envío de los directores al SSRN Max Planck Institut.

Blogs:
History, pardon and Memory in Latin American Constitutionalism. https://verfassungsblog.de/history-memory-and-pardon-in-latin-american-constitutionalism/