How do we get to the current political crisis? Why don’t citizens feel represented by the candidates? Why does justice seem so far away from ordinary people and fail to punish criminals and corrupt?
Any of the people who live in Argentina have asked themselves these questions more intensely than ever in recent months. And they have not found an answer.
“Equality” and “participation” could be the key terms with which the jurist Roberto Gargarella outlines a possible answer to these questions, in his latest book, “Manifesto for a left-wing right” (XXI century).
This lawyer and sociologistone of the most prominent constitutionalists in Latin America, proposes, in this volume, a possible political and legal system that fights against inequality, that favors greater citizen impact on public issues, without giving up respect for personal freedoms.
Current professor at the Di Tella University and the UBA, his academic history spans institutions around the world: he has two doctorates, in Chicago and the UBA, and has been a visiting professor at Columbia, New York University, and Pompeu Fabra University, among others. .
In dialogue with NOTICIAS, he agreed to analyze some aspects of the current situation, from the real value of the vote to the dispute between punitivism and guaranteeism. He also the importance of popular movements such as Ni Una Menos and the appreciation of Trial of the Boards as “the great reference point in the history of justice.”
NEWS: How does the State imagine that it would encourage a right from left?
Roberto Gargarella: Because of the way the justice system is composed or the majority of our countries are economically organized, the law tends to be interpreted conservatively. Therefore, the first thing I was interested in saying was that the law deserves to be interpreted differently. Starting with the question that any Constitution starts with a very strong promise of equality. It is a pact between equals. There is the main commitment that any right has, an egalitarian commitment. Against the idea that it could be a surprise to think of the right as left, I believe that it is the natural way to understand the right.
NEWS: You point out in your book that, due to their social belonging, those who make up Justice fail to understand the needs of citizens.
Gargarella: Let’s say that, due to the ways in which they are selected and the privileges they receive as soon as they occupy their positions, they tend to make a conservative reading of the law. Among other things, precisely to protect their own privileges.
NEWS: Another of the topics that he deals with in his book is the lack of citizen participation, which in current democracies has been reduced to delegating power through voting.
Gargarella: In practice, democracy has been reduced to periodic voting. But the periodic vote It should be just a small part of democracy. In the beginning, there was the understanding that it came with a bunch of other tools. So, for example, there were mandatory instructions to those elected, revocation of mandates, rotation in positions. And that was the idea behind juries in trials. When all those tools lost power, the vote was left alone. And democracy, reduced to that, is little and nothing. Control tools are minimal. One feels politically alienated. What you had been told was coming to free you and make your life better ultimately serves to make you feel oppressed. It ends up happening, as just happened in Argentina, that a lot of people don’t know what to do with the vote, because they can say very little with it. Or you can’t say two things at the same time, such as: I want this candidate, but I don’t want him to do crazy things, or I want this other candidate, but I also want all the corrupt people to leave. So there is a sense of loss of power, of expropriation; which translates into frustration. Some have complete freedom to enjoy their privileges and you can’t do anything against the corrupt.
NEWS: How can you add participation to systems that are so fossilized?
Gargarella: I agree that the system is very fossilized. In this context of strong inequality, the citizen has everything against him. I wouldn’t think that people are disenchanted and then don’t participate. In 2001, there were months of people in the streets asking everyone to leave. The result is that none of them leave. And that is a tremendous lesson for citizen participation. The system is so impervious to criticism that you can be marching every day and the response is nothing. I am not trying to justify citizens, but rather not to call “apathy” what is “confusion.”
NEWS: Is the struggle of women, in recent years, a good example of participation to impose issues that matter to people?
Gargarella: Completely. It’s extraordinary. It is not something that comes from the top down, but something that comes from the bottom up. Something that implies a very strong request for change. It is the best example that we have at hand in Argentina. There we saw that inclusive public discussion was possible and interesting. And that it was not a utopia reserved for Switzerland and Norway.
NEWS: Going to the present, in this year’s campaigns Justice It was not a central issue, considering that for people it is a point of conflict.
Gargarella: The election in frameworks of concentrated power makes everything become a discussion about personalities. In the exceptional case in which a Trump or a Bolsonaro appears, that revolutionizes the entire discussion because everything else becomes secondary to the priority of confronting this threat. And it seems that one wastes time if he is talking about very important things like judicial reform or tax reform.
NEWS: Insecurity is one of the issues that people most complain about in relation to justice. A problem that particularly affects sectors with fewer resources.
Gargarella: Like so many other discussions, it appears degraded at both ends. On the one hand, punitivism, which thinks about the issue as if the only possible state action were punishment and the only possible punishment was prison. At this pole we see a reductionism that is absurd, unjustified and leads us to very undesirable proposals. Now, at the other pole, there has also been a great degradation and they have finished transforming guarantees into impunity for criminals. And the guarantee has nothing to do with that. “Guarantee” means that everyone is judged through due process and their guarantees are respected. In no way can it be assimilated to impunity. Zaffaroni, in his young years, did an extraordinary service to criminal theory, so that we recognize the value and importance of respect for guarantees. But he ended – both in his judicial practice and in the theory of law – saying (and I have read this to him more than once) “when I received a case where a criminal, a disadvantaged young person had committed a crime, the first thing What I asked myself, before studying anything, was how I could get it off.” That can’t be the reasoning. That hurts us all, because the person who has committed a crime must be held responsible for the crime he has committed. In that sense, the discussion “punitivism” vs. “guarantee” ended up being degraded in the worst way.
NEWS: What do you imagine can happen in a Milei government?
Gargarella: I believe that Milei is an expression of a time of extreme anger in the face of the realistic awareness that one cannot do anything, that voting is of no use. So, many people have taken that tiny opportunity they have to make themselves heard, in some small way, to make as much noise as possible expressing their fury. And he has used the means of election, because it is the only institutional channel he has. The political parties are completely degraded, political representation as dreamed of 200 years ago, died and does not rise again. The political system is in a radical crisis of functioning. And these types of phenomena appear that are the expression of a visceral anger that finds no alternative channel. If Milei came to power and maintained the rule of his radical emotional imbalance, what we would be left with is to prevent it democratically by the means that the Constitution gives us.
NEWS: Faced with the crisis of traditional politics, one can also see genuine militancy and people who want to do things well.
Gargarella: There are a lot of very good officials but the truth is that the structure has offered, for a long time, the worst incentives. Because both political and judicial officials are offered access to enormous privileges, control of enormous resources (not only economic, but also coercive) and at the same time the certainty that the controls will be very limited or non-existent. . It’s very difficult to get into a position of power and not be tempted by those kinds of incentives. A case that I followed closely, of a person I love, Victoria Donda; For me, he was a sad example of a very decent person, faced with the worst incentives. You know you can use your enormous resources for hires that are completely outside the norm and distribute a lot of money at your discretion. That is a very small metaphor for a structure that an Insaurralde takes advantage of in the most pathetic way.
NEWS: As a result of the celebration of 40 years of democracy, the Trial of the Juntas was remembered, a way of doing justice that had the approval of all citizens. The memory also confronted us with the reality that we have not reached that standard again.
Gargarella: Totally agree. I am editing a book that we hope will be published on the 40th anniversary of the Judgment, because I believe it is an extraordinary event in Argentine and world history. In particular, for people of my generation, who were born into democracy seeing it and without awareness of the extraordinary thing that was happening. In any case, we gained the illusion that it was possible in democracy to place in the dock those who until yesterday had the power of life and death over each of us. It seems to me that the unique and exceptional attention that the film “Argentina, 1985” gained says something. The trial had become too closely linked to the Alfonsín government and, then, it seemed that to vindicate the trial was to vindicate Alfonsín. And in times of rift, no one wanted to do that. Little by little we began to see that there are wonderful things that were done in our country and that are a source of pride.
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