Argentina’s Dangerous Experiment

Since the election of Javier Milei as President of the Republic, Argentina has been conducting an extremist, unexpected and dangerous political experiment. Allow me, in the following paragraphs, to make an attempt to explain and justify this statement.If the experiment we see today in Argentina can be defined as “extremist”, this is because it is headed by a President who defines himself as an anarcho-capitalist (an extravagant ideology, within the range of political ideologies), and who pretends to act as such. In fact, the head of the Executive has maintained that the State is “worse than the mafia” (because the mafia – he claims – at least has “codes of conduct”); described the State as a “rapist” that must be “destroyed”; contended that democracy (“as already proven by Arrow”) is a system that does not work; repudiated the public education system (once, national pride) as a “brainwashing mechanism”; etc. It is not just a matter of words: in the short span of three months since taking office, he has acted accordingly, mainly through an economic program that – so far – primarily involves imposing drastic cuts in state “expenditures” on health, education, social assistance and, above all, the pension system – all this, in a context of profound economic inequalities and social injustice.

Milei’s experiment is also “unexpected” in the national and regional context. On the one hand, Milei’s administration is unexpected in the light of Argentina’s political history – a history that has been marked, for more than a century, by the presence of strong political parties (the Radical party, center/center-left, which has existed since the beginning of the 20th century; the Peronist party, which has existed since 1945); and by a (thus far) solid institutional scheme (including a well-established Judiciary; a strong and functional Congress, and popular and autonomous provincial governments). On the other hand, Argentina’s political experiment is unexpected in the light of the regional context. We know that, in Venezuela, the party system collapsed in the 1990’s (with the crisis of the Democratic Action Party and the Social Christian Party; and the arrival of the military Hugo Chavez to power). We also know that, in Peru, the party system virtually dissolved (following the crisis of historical parties such as the APRA, created by Raúl Haya de la Torre). We know that Brazil has long suffered the tragedy of having a super-fragmented Congress, which hinders governability. Against those examples, cases such as those of Argentina (or Chile, or Uruguay), seemed – at least at first glance  –  more capable of resisting some of the most serious political “dramas” of our time. I am thinking about the “drama” of having “populist” Presidents (i.e., authoritarian Presidents, who pretend to rule over, or against, the established institutions) and “eroded democracies” (i.e, systems of “checks and balances” that have been “eroded from within”).

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In addition, the experiment taking place in Argentina can be described as “dangerous”, particularly if we pay attention to the similar experiences that we find nowadays: cases like those of Jair Bolsonaro in Brazil; Donald Trump in the United States; Recep Erdogan in Turkey; Viktor Orbán in Hungary. As these are well-known experiences, I will not dwell on them to explain the risks they entail. Let me just say that in Argentina, after just three months of the new administration, there have already been many events that caused concern. First of all, the first three legal initiatives promoted by the government appeared all very worrying, both in their content and in their form. They included an “Anti-Protest” or “Anti-Picketing” Protocol (which is still in force, although judicially challenged); a blatantly unconstitutional Executive Decree, through which the government intended to promote substantive economic reforms (which cannot be carried out by decree), repeal more than 40 laws, and partially change the Civil Code (the Executive Decree has been declared unconstitutional by the courts in several aspects, but is still partly in force); and an extraordinarily ambitious Bill (the Proyecto Bases), which, due to the disagreements it generated, the government decided to withdraw from parliamentary discussion for the time being. Additionally, there have been efforts by the new government to reintegrate  the Armed Forces in matters of internal security (something forbidden by law, in the light of national history); harsh statements from the President against all his opponents; or very provocative “anti-feminist” measures (such as the dismantling of the “Women’s Hall” on Women’s Day) that seem in line with the government’s (self-imposed) “mission” to carry out “a war against communism”. In short, this is a government that shows a mixture of improvisation, irrationality, political clumsiness, and a certain provocative cruelty in most of its actions (perhaps influenced by the presidential obsession with twitter/X and the world of social networks) – all this in a context of profound social discontent and political instability.

I end with some brief reflections, aiming  to better understand a phenomenon that appears to be very difficult to understand, but which we need to understand  to avoid its repetition or aggravation. One crucial question that we need to answer is the following: What could have led us to this extreme, unexpected, and dangerous situation? In order to think about a possible response to this quest, let me resort to a recent statement by the noted political philosopher Charles Taylor. According to Taylor, what is happening in many of our constitutional democracies is “part of a wider phenomenon of disconnect between the needs and aspirations of ordinary people and our system of representative democracy” (Taylor et al, 2020). I think, along these lines, that in a good part of Latin America (not to say most Western countries), and also, undoubtedly, in Argentina, we are going through a serious institutional crisis, which is not conjunctural but epochal, and which has at its core an irremediable, irreversible crisis of the system of political representation.

As I understand it -and this is the hypothesis I am putting forward in these few lines- in many countries of the region, we have an institutional system (very much in line with that of the United States), which was born for a society that is no longer there. It is an institutional scheme designed on the basis of a “political sociology” that today we can no longer assume as our own – a system designed for societies not only relatively small in terms of the number of their inhabitants, but also, and above all, divided into a few internally homogeneous groups. In the case of the United States of 1787, it was a society divided between large and small landowners, merchants and artisans, and the like. In James Madison’s words, the American was a society divided between the “rich” and the “poor”; “the few” and “the many”; “creditors” and “debtors” – that is, again, a few groups with homogeneous interests. With that political sociology in mind, it could have been reasonable to organize a constitutional schema such as the one then proposed, aimed at including or accommodating the whole of society within the institutional system (this was, in fact, the aspiration of the model of the “Mixed Constitution”: a proper Constitution had to be capable of representing/expressing all the different “sections” of society). The fact is that, with the passage of time, the “dream of full representation” came to an end. Today, we all recognize that we live in fundamentally multicultural societies (marked by “the fact of pluralism”, according to John Rawls), divided into an infinite number of radically heterogeneous groups. In such a framework, it is inconceivable to think that – say – “some workers” present in Congress will be able to represent the whole “working class”, or some aristocrats will manage to represent “the upper classes” (as in the original English scheme of the House of Commons and the House of Lords).

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In short, after more than two hundred years, we are still keeping in force a perished institutional scheme, radically incapable of fulfilling its original function. It is not that a “corrupt” political class (“the caste”, as President Milei calls it) has appropriated politics (and, therefore, what we need to do is to replace it with people who are not “caste”). The point is that, even if it worked perfectly, the institutional system would be incapable of ensuring the representation of the whole of society – as if we had acquired a suit in our childhood that no longer fits, nor will ever fit our body, no matter how much we stretch its sleeves or add buttons. This is to say, the constitutional suit was not designed for a social “body” like the present one.

In this context, the “dissonance” between the “needs and aspirations” of the citizenry and the institutional system in place is (and most probably will be) very strong -something that will produce “democratic anguish” and “social anger”. Within this institutional scenario, the emergence of leaders oriented to exploit this persistent social anger is something to be expected, rather than strange – we have to expect the emergence of new leaders who will raise an aggressive and destructive discourse towards the established institutions. The challenge, then, is to think how to re-organize democratic life in a social, political and economic context that will never again be the one imagined two hundred years ago.

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The past two Weeks on Verfassungsblog

For the first time since the beginning of the Israel-Gaza war, the United Nations Security Council has adopted a resolution. It demands an immediate ceasefire throughout Ramadan and the unconditional release of all hostages. Immediately after the resolution had been adopted, the United States rushed to point out that the resolution is not binding. HANNAH BIRKENKÖTTER contests this claim in a widely noted text the very same day. ITAMAR MANN turns to the fact that the United States did not veto the resolution. At least with regard to the Gaza war, the Security Council may have overcome a long-standing blockade – with potentially far-reaching consequences for the region. SAEED BAGHERI sheds light on a previously overlooked aspect of the war, showing that the extensive environmental destruction in Gaza is also a case for international humanitarian law. Finally, in our fourth text on the conflict in the Middle East, KAI AMBOS examines the ongoing advisory opinion proceedings before the International Court of Justice regarding the accusation of apartheid against Israel and explains the elements this crime consists of.

Since the terrorist attacks by Hamas on October 7, 2023, German prosecutors have been pursuing those using the slogan “from the river to the sea”. Anyone expressing, posting, or displaying it must expect investigations for sedition, connivance of criminal offences, and the use of symbols of a terrorist organization. In contrast, ROBERT BROCKHAUS, BENJAMIN DÜSBERG, and NIKOLAS GÖLLNER argue that there is no criminal liability in most of the cases. The judiciary must not impute a criminal meaning to the ambiguous slogan alone, they argue. Moreover, the slogan is not a symbol characterizing Hamas, so Brockhaus, Düsberg and Göllner.

On 8th March 2024, the Irish people rejected two constitutional referendums on family and care in an overwhelming no vote. MAEBH HARDING explains what the referendums would have actually changed, why they failed and how they pitched women’s rights against disability rights.

Russia has extensively destroyed the city of Mariupol in its war against Ukraine. German companies are actively assisting in the reconstruction of the Russian occupied city. How is this possible? VIKTOR WINKLER explains why the situation points to deeper problems within the European sanctions regime.

Last month, the Italian Court of Cassation upheld the (suspended) sentence of one year’s imprisonment of the shipmaster of the Italian ship Asso28. The case constitutes the first time an individual was held criminally responsible for failing to fulfil the duty of non-refoulement. STEFANO ZIRULINA takes a look at the decision.

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Solange 50th Anniversary Conference: Constitutionalism Beyond the State and the Role of Domestic Constitutional Courts

May 30-31, 2024 at WZB Berlin

Organized by Mattias Kumm, Kriszta Kovács and Andrej Lang

Fifty years after the German Federal Constitutional Court rendered one of its most influential decisions, the Conference will revisit Solange I and critically (re-)assess its historical context, its legacy, and its significance today. Registration deadline is May 15, 2024.

More information here.

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​​Some feel joyful, others remain skeptical. The Cannabis Act (CanG) became effective on 1 April. An important step towards a sustained drug policy, says JUSTINE DIEBEL. At the same time, the potential for discrimination increased due to a supply shortage, undefined legal terms and a home-grown black market.

The last strike of Germany’s railway workers was long and intense. As during previous strikes, the debate has once again begun about whether the legislature should not restrict the right to strike. After all, there is no legal regulation of labor dispute law in Germany. EVA KOCHER explains why this is neither a good political nor legal idea.

According to German jurisprudence, one can be held criminally liable for coercion by participating in a sit-in blockade. The protestors are accused of exerting violence against the halting motorists in a criminal manner. SIEGMAR LENGAUER discussed this at the conference Junges Strafrecht with other scholars. He contrasts the German jurisprudence with an Austrian perspective and argues that passive resistance is not violence.

Unlike other countries, in Germany the head of government is elected by secret ballot. Using many examples from German political history, FRANK DECKER explains why this rule encourages abuse and cannot be justified from a democratic point of view. He argues in favor of abolishing the rule – especially in Thuringia, Brandenburg and Saxony, where the AfD is likely to play games again this year.

According to the Thuringian Higher Education Act, only women may become equality officers. The Thuringian Constitutional Court has now found this unequal treatment to be justified in order to attain actual equality. ROBERT BÖTTNER takes a closer look at the judgment and raises constitutional concerns.

In Kenya, the High Court has once again made headlines with a groundbreaking verdict. The offense of subversion is too vaguely defined and violates the constitution. JOSHUA MALIDZO NYAWA explains how Kenyan colonial history played a crucial role in this judgment.

In Canada, the Supreme Court has ruled that the Canadian Charter of Rights and Freedoms also applies to Indigenous governments. An extraordinarily complex decision, according to DWIGHT NEWMAN, who explains the interplay between Indigenous rights and Canada’s constitution.

On 20 March 2023, the Council of the European Union gave Bosnia and Herzegovina (BiH) the green light to start accession negotiations. However, despite this political endorsement, BiH must fulfil the conditionality criteria, including a series of six judgments by the ECtHR relating to the predetermined ethnic keys. JOSEPH MARKO revisits the Kovačević case and hopes that the Grand Chamber will render a landmark judgment that would facilitate the necessary constitutional reforms required for European integration

Regarding the Spitzenkandidaten process, YLENIA MARIA CITINO explores whether one can perceive it as a customary rule or a convention of the Constitution. At the time being, she argues, the process remains an erratic informal rule unilaterally acknowledged by soft law instruments. Yet, she concludes, once the bids are placed, there is a precondition for success.

The European elections for the European Parliament are slowly approaching. Commissioner Breton received a slap on the wrist after he (politically unwise) criticised the process of electing Ursula von der Leyen as the EPP’s leading candidate on X (formally Twitter). Yet, as  TOBIAS SCHRAMM explains, the expression of political opinions in itself is not incompatible with the duties of Members of the Commission.

35 parties are registered for the European elections. And once again, to protect against fragmentation, a blocking clause is being discussed as a barrier for entry. LUISE QUARITSCH explains why a blocking clause does not protect the European Parliament’s ability to function and what politicians should talk about instead.

As to the rule of law in the EU, MARIA SKORA and YORK ALBRECHT present the results of the RESILIO report. Based on data from 27 Member States, unsurprisingly, the independent judiciary and effective public administration prove to be key for the functioning of the rule of law. To remain resilient, the rule of law needs a solid democratic political culture anchored in a robust civil society, independent media, and a sound public debate. Henceforth, a long-term investment in democracy is the best way to strengthen the resilience of the rule of law.

Correspondingly, JAAP HOEKSMA argues that a self-proclaimed illiberal leader cannot assume the Presidency of the Council. Given the current status of democracy and the rule of law in Hungary, he calls on the European Parliament, holding the forthcoming debate on 10 April, to prevent the scheduled takeover by Hungary.

Out-of-court dispute resolution sounds a bit technical, but it is a core element of the new European platform regulation, the Digital Services Act. Users should be able to ‘sue’ platforms cheaply and easily in new, private dispute resolution bodies. LORENZO GRADONI and PIETRO ORTOLANI consider what this could look like in practice.

JÖRN GRIEBEL and FELIX BERGOLD shed light on the tension between global trade law and supply chain regulation against the backdrop of the current EU regulation, which is due to be finalized later this month.

The nationwide protests in response to the Potsdam “Remigration Meeting” have reignited a debate about banning the AfD in Germany. What legal and political hurdles does such a procedure face? How do other countries deal with similar threats to democracy? The blog symposium “The party ban in Germany and Europe” brings together legal, political and social science as well as comparative perspectives on these questions. In the first contribution, UWE VOLKMANN warns against making this question a legal one. Against the background of Habermas and Luhmann, MICHAEL KOSS argues that a party ban procedure would be counterproductive for democratic legitimacy. ANGELA BOURNE provides an empirical analysis of party bans in Europe. HERMANN HEUSSNER & ARNE PAUTSCH propose making adjustments to the Federal Constitutional Court Act in order, among other things, to authorise state governments to file applications. Visiting Kelsen, Schmitt and Loewenstein, WOLFGANG MERKEL explains the pitfalls of militant democracy – and still argues in favour of excluding state funding for the AfD. GONÇALO DE ALMEIDA RIBEIRO places Portugal’s concept of militant democracy between Italy’s retrospective and Germany’s prospective militancy. MICHAELA HAILBRONNER observes that the party ban debate is stuck in an “either-or”. Instead, it  should be discussed in the context of other mechanisms and strategies, such as “militant democracy light”. Why an AfD ban would provide an “institutional pause for breath”, but nothing more, argues SARAH SCHULZ. Although Germany is considered a model for the concept of militant democracy, more parties have been banned in France, analyses AUGUSTIN BERTHOUT. In the “Dilemma of protecting democracy”, GÜNTER FRANKENBERG & WILHELM HEITMEYER choose the “demanding democratic path”. ANDREA GATTI shows why it is so difficult to ban neo-fascist parties in Italy’s “limping militant democracy”. And LLUÍS SUBIELA asks whether the ban on political parties in Spain has a future after the end of the Basque terror. This blog symposium was organized by the Düsseldorf Party Research Institute (PRUF) and the Foundation for Science and Democracy (SW&D) in cooperation with Verfassungsblog’s Thuringia Project.

Just before the negotiations for a global pandemic treaty enter the final phase, our second blog symposium on “The World Health System After the Pandemic” discusses paths towards a just and decolonial global health system. LILLI HASCHE, JELENA VON ACHENBACH, and ANDREAS FISCHER-LESCANO open and introduce the debate. ANNA HOLZSCHEITER explains why the COVID-19 pandemic, like a magnifying glass, exposed the weaknesses of global health governance and contextualizes the future of world health against the backdrop of geopolitical power shifts. TINE HANRIEDER and JULIAN ECKL discuss the role of private consultants and highlight why there is an accountability gap in the World Health Organization. JELENA VON ACHENBACH also examines the influence of private actors and illustrates, using the example of COVAX, the legitimacy deficits of Public-Private Partnerships. ADAM STROBEYKO outlines possible scenarios for the future of Pathogen Access and Benefit-Sharing, while MARK ECCLESTON-TURNER explains why Access and Benefit-Sharing is not equity. ANNE PETERS advocates for a comprehensive understanding of health that considers human and animal rights together. LILLI HASCHE highlights the importance of fair processes for the decolonization of global health governance. FATOUH SILLAH and ANDREAS FISCHER-LESCANO reflect on the role of solidarity and explain why resource scarcity and distribution issues are inherently political questions. MEHRDAD PAYANDEH and TINA STAVRINAKI discuss the role of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in the global right to health. HELMUT AUST and FELIX SCHOTT finally demonstrate how the legal nature of instruments can impact substantive justice issues under the pandemic treaty.

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That’s all for this week. Take care and all the best,

the Verfassungsblog Editorial Team