Argentina’s Disordered Liberty (marcos falcone, 12/03/23, Law & Liberty)
To explain the evolution of Argentine law, it is useful to examine constitutional changes, and particularly those that were made to the 1853 Constitution, which is still active today. Juan B. Alberdi, who had the most influence at the time of writing, purposefully followed the model set by the American Founding Fathers so as to establish the kind of rule of law that a classically liberal society would need. Argentina declared, in the 19th century, that everyone in the world who wished to do business in the country could do so; that internal, bureaucratic barriers to free trade were to disappear; that no privileges would be extended by the government to anyone; and that private property was an inviolable right. As Isaiah Berlin might say, the document considered liberty in a negative way. The state’s role was simply to set rules for individuals to act and flourish.
Ever since its inception, though, the Argentine Constitution has suffered from several changes that have modified its spirit. In many instances throughout the 20th century, new articles incorporated into the Argentine Constitution have recognized social and collective ‘rights,’ the enforcement of which depends on increased government intervention. The 1949 reform, for example, instituted a ‘social use’ of property that directly paved the way for the state to violate property rights. That change, though later overturned, would serve as the basis for Article 14 bis of the Constitution, which was added in 1957 and is still active. This section, among other things, guarantees the existence of a minimum wage, mandates ‘fair’ salaries for workers, demands that they get a share of whatever capital gains exist, and effectively bans the state from dismissing public employees.
Further reforms solidified the increasingly interventionist spirit of the Constitution. The 1994 Convention, for example, added the concept of ‘environmental rights’ in a way that implies proactive government intervention. This and other third and fourth-generation ‘rights,’ particularly those that demand affirmative action for various groups to ensure the ‘true’ enforcement of other constitutional rights, show that the concept of liberty embedded in the document is no longer negative, but has become positive: The state is to actively intervene in order to bring about specific results.
Unsurprisingly, Argentine law has become more and more interventionist. Congress has, at various times in the past, nationalized private businesses and pension funds, and it has established and increased dozens of different taxes with the result that effective total tax rates are over 100%. But bureaucracy has also increased so dramatically that complying with legislation costs small and medium businesses 500% more time than their counterparts in neighboring countries such as Brazil. And even though the evolution of bureaucratic stringency is difficult to measure over time, available evidence for the past decades suggests the situation has gotten worse: According to the Fraser Institute’s Economic Freedom Ranking, Argentina ranked 36th in 1970 but ranks 151st out of 165 countries today in terms of regulation, which means it has become more and more bureaucratic. It is no wonder, then, that informal employment now accounts for as much as 45% of the total workforce. The ‘tendency towards illegality’ that Nino identified in the Argentine society seems to be caused by the state itself.
We too much take republican liberty for granted.