Casagrande Estado de Derecho (2018)

QUADERNI FIORENTINI
per la storia del pensiero giuridico moderno
47
(2018)
AGUSTÍN E. CASAGRANDE
THE CONCEPT OF ESTADO DE DERECHO

IN THE HISTORY
OF ARGENTINEAN CONSTITUTIONALISM
(1860-2015)
1. Between Law and History: The Problematic Concept of Estado de Derecho. —

2. From Traditional Dogmatic History to the Conceptual History of Estado de Derecho.
— 2.1. From the American to the Argentinean Tradition: Republic and Liberalism. —
2.2. The Catholic Staat and the Critical Reception of the Estado de Derecho. — 2.3. The
Estado de Derecho under the Legal Positivism and American Political Science:
1955-1983. — 2.4. The Limits of Dogmatic Positivism: Human Rights and Democracy
(1983-2015). — 3. Conceptual History and the Language of Constitutionalism in
Argentina.
1. Between Law and History: The Problematic Concept of Estado

de Derecho.
This essay is a response to a feeling of disquiet that arises out
of the diverse uses that the concept of Estado de Derecho presents in
contemporary Argentina. It is easy to recognize this uneasiness
whenever one comes across an article in a law journal or reads a daily
newspaper. There is a tendency to use this concept as a means of
justifying or criticizing various administration measures, court judg-
ments, or even juridical opinions. It is clear that in this respect, what
is happening in Argentina is happening all over the world, and its
cause is that the concept has such a positive connotation that no one
(neither politicians, nor jurists) would even dare say that their
decisions are made against the Estado de Derecho-Rechtsstaat or rule
of law (1). If we analyze the performativity of this topic from the
(1) H. MOHNHAUPT, Zur Geschichte des Rechtsstaats in Deutschland. Begriff und

Funktion eines schwierigen Verfassungsprinzips, in « Acta Facultatis Politico-iuridicae »,
170 QUADERNI FIORENTINI XLVII (2018)
perspective of rhetoric, we clearly see that the mere mention of this

term within the context of the discourse automatically recalls several
positive associations. In other words, once the phrase is invoked, the
whole argumentation quickly falls away in order to pay tribute to
this emotionally loaded concept. The concept is self-immunizing
and can be used as a means of closing off all forms of argumentation.
This characteristic could explain the inflationary use of this topos as
well as the consequent liquation of its meaning in the present (2).
For a jurist, this is even more problematic because there is a
tendency to define this concept by using some typical positivist or
dogmatic strategies. Therefore, it is quite common to find definitions
of Estado de Derecho as imperio de la ley; colloquially speaking, this
means that if there is a law or a court decision — regardless of the
content — the administration must follow it. Within the logic of
juridical thought (more practical than theoretical), this « learned by
heart » understanding works perfectly. On the one hand, judging
the measure would only seem to require that a jurist compare the law
with the jurisdictional decision. On the other, it closes off the
question concerning the political meaning of the concept and its
historicity.
For a Spanish-speaking jurist, however, the problem is much
more difficult. If we take a closer look not at the form of the
argument but at the concepts themselves, things become blurry.
What does imperio de la ley mean? It has been translated as « rule
of law » by some constitutionalists, but for others, the meaning is
principio de legalidad (Herrschaft des Gesetzes). The trivial use of the
term is not only disconnected from historical and political thinking,
it is clear that it also flattens out the density of diverse legal traditions
in this particular way of circular thinking: Estado de Derecho is
imperio de la ley, and the latter means principio de legalidad.
XXXIV (1994), p. 42; M.-J. REDOR, De L’État légal a L’État de droit. L’Évolution des
Conceptions de la Doctrine Publiciste Français 1789-1914, Paris, ed. Economica, 1992,
p. 8.
(2) G. FRANKENBERG, Staatstechnik. Perspektiven auf Rechtsstaat und Ausnah-
mezustand, Frankfurt am Main, Suhrkamp, 2010, pp. 70-73; Lo Stato di diritto. Storia,
teoria, critica, P. Costa & D. Zolo (ed.), Milano, Giangiacomo Feltrinelli, 2002, pp. 5-15.
AGUSTÍN E. CASAGRANDE 171
Paradoxically, all of them can be translated into English as « rule of

law » [!?] (3).
However, despite the diverse rhetorical employments, the
dogmatic reduction of the semantic field, and the complexities of
translating the concept, some historical experiences present limits to
the pragmatic use of the concept. For example, recently — May 3rd,
2017 — the Supreme Court approved a reduction of Luis Muiña’s
sentence, who had been found guilty of crimes against humanity
during the last dictatorship (1976-1983). In the judgment, several
judges referred to the defense of the Estado de Derecho as a key
argument to support their decision (4). However, this use of the
concept to justify that measure was considered controversial. Not
only did jurists publish critical articles in a variety of journals, but
several popular demonstrations took place throughout the country,
most prominently in the historical Plaza de Mayo. In this context,
only a few individuals approved of the use of Estado de Derecho to
benefit a man convicted of perpetrating crimes against humanity (5).
This episode shows that the dogmatic reduction of the
concept’s meaning runs up against some limits when it is used within
the context of particular political experiences. It also proves that in
contemporary Argentina the link between Estado de Derecho and
human rights is very strong, and therefore, it would be contradictory
to appeal to one to more or less deny the other. Finally, as we can
observe from the aforementioned case, some symbols and emotions
are intrinsically connected with the history of this concept.
Against the background of this tension between trivial dog-
matic reduction and the emotiveness evoked by Estado de Derecho,
several questions arise: When was the concept first used in the
Argentinean legal language? To which legal tradition is the concept
connected? Is it connected with the German concept of Rechtsstaat,
(3) B. CLAVERO, Happy Constitution. Cultura y lengua constitucionales, Madrid,

Trotta, 1997.
(4) CSJ 1574/2014/RHl. Bignone, Reynaldo Benito Antonio y otro s/ recurso
extraordinario.
(5) The traditional newspaper La Nación, however, published an editorial
entitled El Estado de derecho, which tried to justify the Supreme Court’s decision. See:
http://www.lanacion.com.ar/2021842-el-estado-de-derecho.
with the Anglo-Saxon « rule of law », or is it a combination of

diverse legal traditions? And last but not least: What kinds of
historical meanings, emotive figures, and symbols were attached to
this concept in the various Argentinean contexts?
To answer these questions adequately, and given the wide
range of uses of the concept, the focus of this contribution will be on
the field of constitutional law since, as Mohnhaupt has stated, we are
confronted with « ein schwieriges Verfassungsprinzip » (6). To this
end, the sources used to analyze this complex concept include
juridical discourses founded in the diverse constitutional manuals,
treaties, and legal journals. Moreover, a selection of Supreme Court
judgments will be analyzed in order to assess the impact of this
« dogmatic » concept in the pragmatic world of judicial decisions.
If the current research is able to uncover the diverse meanings,
changes, and ways of dealing with the topic of Estado de Derecho
throughout Argentinean legal history, a radical question about the
socio-historical conditions regarding the possibility of appealing to
this concept in the present day and age will naturally come into view.
Therefore, by means of a historical analysis, the traditional dogmatic
definition could be suspended or even challenged.
2. From Traditional Dogmatic History to the Conceptual History

of Estado de Derecho.
Before beginning with the history of the concept of Estado de
Derecho in Argentina, it is important to remark that legal historians
are mainly interested in the thematization and historicization of legal
traditions (7). This specific question distinguishes their work from
the narrative of constitutional jurists. From the perspective of legal
history, the uses of the past in constitutional history are seen as ways
of legitimizing the present and, therefore, a reconstruction generated
(6) MOHNHAUPT, Zur Geschichte des Rechtsstaats, cit., p. 39.

(7) In this case, the historicization of a tradition supposes the historical des-
cription of a social process of selection of those discourses that are apprehensible as
sources of authority in the field of law. The premises of Leclerc are followed. See: G.
LECLERC, Histoire de la vérité et généalogie de l’autorité, in « Cahiers internationaux de
sociologie », 111 (2001), 2, pp. 205-231.
from the very core of the tradition. In contrast, legal historians are
interested in describing how this legal tradition was constructed and
its effects on the way the law is conceived and applied. As such, I
claim that the historical reconstructions provided in constitutional
textbooks are not trustworthy.
In fact, in the dogmatic history written by jurists, the concept
of Estado de Derecho constitutes a blind spot of sorts, which more or
less represents an indefinite ideal. These authors understand the
category in terms of an atemporal idea. The consequence of this
presupposition within the discourse is that the diverse historical
meanings are effectively erased. Therefore, a unique meaning, defi-
ned abstractly in the present, is used to suggest a common « inspi-
ration » shared by jurists at different times and in different
spaces (8). This means that the concept is often used as a meta-ca-
tegory to carry out an anachronistic judgment of the past experience.
Beyond the flattening of historical experience, the side effect of this
operation is a mystification of the present from which the « evolu-
tion » of constitutional thought in society can be — teleologically —
narrated and justified.
This way of proceeding, devoid any historical-conceptual awa-
reness, also permits the exclusion of diverse traditions from the
historical narrative. Some past experiences are neglected (sometimes
intentionally) by authors who construct a history of constitutional
thought as a form of retrospective dogmatism. Hence, against the
evolutionary linearity, it is necessary to look for the different logics
that guided how public law was conceived in different historical
periods.
With this in mind, it becomes important to engage in a history
of the formation of the languages — and prejudices — of constitu-
tionalism. Only by analyzing the genealogy and the internal logic of
constitutional language is it possible to observe the diversity of
meanings subsumed under the concept (9).
(8) Q. SKINNER, Meaning and Understanding in the History of Ideas, in « History

and Theory », 8 (1969), 1, pp. 3-53. As an example of these « mythological » operations
see: M.J. LÓPEZ, Manual de Derecho Político, Buenos Aires, Depalma, 2001, pp. 363-370.
(9) The critique of « the history of ideas », as it is exercised in the juridical field,
admits a dislocation when one observes the conceptual problems in the field of language.
2.1. From the American to the Argentinean Tradition: Repu-

blic and Liberalism.
One way of suspending the mythological narrative of the
temporal ubiquitousness of the idea of Estado de Derecho is simply
by asking when this term first appeared in the language of Argen-
tinean constitutionalism. Now, if we analyze the language of consti-
tutionalism of the 19th and the early 20th centuries, paying special
attention to the word-concept Estado de Derecho, we come up
empty. In this sense, if Rechtsstaat was one of the keywords of the
liberal tradition in Germany during the 19th century, in Argentina
the central concept, which also served as a Leitbegriff within the
illustrated conceptuality of that period, was « republic » (10). This
difference would not only form and structure the language but it
also influenced the creation of a particular tradition of how the
relationship between law and politics should be understood (11).
In this sense, a debt is expressed here with the work of Elias Palti. See: E. PALTI, The
‘Theoretical Revolution’ in intellectual history: from the history of political ideas to the
history of political languages, in « History and Theory », 53 (2014), pp. 387-405.
(10) The Rechtsstaat is a creation of the German legal theory which afterwards
was spread all over Europe during the first half of 20th century (M. FIORAVANTI, Los
derechos fundamentales, Madrid, Trotta, 2007, p. 112). The formation of the concept had
diverse manifestations through its development in Germany, nevertheless in its origins in
the German Aufklärung, worked as a counter-concept of the Polizeistaat, and thus as a
limitation against the intervention of the Administration in the private sphere of the
citizens. Under this dynamic it developed a series of requirements which were formalized
in the limitation of the governmental power by the Herrschaft of Gesetzt, « administrative
justice », « division of powers », « independence of the judge », « judicial form ».
Despite all these characteristics were developed through diverse authors during the 19th
century, just for the sake of the argument, and recognizing its critical approach, it is quite
interest to read the summary made by the Carl Schmitt in his Verfassungslehre of 1928.
See: R. KOSELLECK, Liberales Geschichtsdenken, in ID., Vom Sinn und Unsinn der
Geschichte, Frankfurt am Main, Suhrkamp, 2014; E.W. BÖCKENFÖRDE, Entstehung und
Wandel des Rechtsstaatsbegriffs, in ID., Recht, Staat, Freiheit, Frankfurt am Main,
Suhrkamp, 1991; Figures de l’État de droit. Le Rechtsstaat dans l’histoire intellectuelle et
constitutionnelle de l’Allemagne, O. Jouanjan (dir.), Strasbourg, Presses Universitaires de
Strasbourg, 2001; M. STOLLEIS, La idea de Estado de Derecho, in La metamorfosis del
Estado y del Derecho, M.A. Presno Linera (ed.), Oviedo, Junta General del Principado
de Asturias, 2014.
(11) The rejection of German culture in the formative scheme of the Argentine
constitutional language had linguistic reasons but also negative views on the logic of the
When the language of Argentinean constitutionalism was first

established (1866-1875), many authors conceived the Constitution
as a replica of the American model (12). During this early period, the
authors understood the balance of powers as well as the republican
and representative government as a response against the arbitra-
riness of despotic rulers. Examples of this contradiction can be
found throughout history, from ancient Rome up to more recent
North America; however, this historical reconstruction was not a
particular historiographical exercise Argentinean jurists engaged in.
To the contrary, the incorporation of historical records to justify the
« republic » as the goal of constitutionalism was primarily carried
out along the lines of the narration of American publicists (13).
Within the context of this appropriation of the past, the aim of the
Constitution was in fact to establish a complete network of liberal
premises and control devises to protect the rights of the individual
against arbitrary treatment.
In this new textual space, the term « republic » would no
longer be used as a concept of political identity to fight against the
monarchy, as it appeared in the documents of the first half of the
19th century (14). Instead, it primarily functioned as a desirable
« form of government » to prevent « tyranny » (15). The progressive
state. For a general study see: V. TAU ANZOÁTEGUI, La influencia alemana en el derecho
argentino: Un programa para su estudio histórico, in « Jahrbuch für Geschichte Lateina-
merikas », 25 (1988), p. 611. The vision of the State as an anti-liberal machine that
nullifies personality can be found in: F. GONZÁLEZ, Lecciones de derecho constitucional,
México, Librería de la Vda. De Ch. Bouret, 1909 [1866], p. 346.
(12) E. ZIMMERMANN, Translations of the ‘American Model’ in Nineteenth Cen-
tury Argentina: Constitutional Culture as a Global Legal Entanglement, in Entanglements
in Legal History: Conceptual Approaches, Th. Duve (ed.), Frankfurt am Main, Max
Planck Institut, 2014. Open Access Publication, http://dx.doi.org/10.12946/gplh1. The
conception of a Constitution as a written piece was a radical turn in comparison with the
old sense of constitution as way of being of a political body. On this radical change see:
P. SCHIERA, El constitucionalismo como discurso político, Madrid, Universidad Carlos III
de Madrid, 2012.
(13) This can be found especially in GONZÁLEZ, Lecciones..., cit., pp. 280-281.
(14) G. DI MEGLIO, República, in Lenguaje y revolución: conceptos políticos clave
en el Río de la Plata, 1780-1850, N. Goldman (ed.), Buenos Aires, Prometeo, 2008.
(15) For this new meaning, the debate between Alberdi and Sarmiento is
foundational. This topic was reconstructed in the classic book by N. BOTANA, La
change in meaning of the term republic also represented an inver-

sion in the performativity of the concept. It not longer served as a
Kampfbegriff but rather as an objective and normative concept (16).
In the language of constitutionalism, the semantic field of « repu-
blic » was renewed and fulfilled with several juridical institutions,
which at the same time, were immediately legitimized by the
concept’s positive emotivity. Among these new political institutions
were the division of power, representation, fundamental rights,
judicial control, etc.
Now, in order to grasp the rapid spread of this new concept
among scholars, the role played by university lectures and manuals
should not be overestimated (17). In those texts, the argument in
favor of desiring the limitation of governmental power was the
release of the productive forces of individuals. However, in order to
achieve this, individuals required not only the recognition of funda-
mental rights but also needed instruments for their protection. This
argument was consistent with the paradigm of political economy,
which conceived of the society as a depoliticized group of indivi-
tradición republicana: Alberdi, Sarmiento y las ideas políticas de su tiempo, Buenos Aires,
Edhasa, 2013.
(16) Both tendencies would generate a progressive de-politicization of the
concept. On this process, see: K. PALONEN, Politik als Handlungsbegriff. Horizontwandel
des Politikbegriffs in Deutschland 1890-1933, Helsinki, Societas Scientiarum Fennica,
1985.
(17) This literary genre would act as a vehicle for the formation and incorpo-
ration of the language of constitutionalism among lawyers. In those texts, the thin line
that divided the waters of law, politics, and historiography was rather inexistent.
Probably, this was also an effect of the conditions of production of this new discursivity,
especially owing to the orality which characterized the early development of this
particular language. In fact, most of these « Manuales » were adaptations approved by
the authors of the notes taken by students who attended their classes. For a theoretical
contribution to the topic see: C. PETIT, Discurso sobre el discurso. Oralidad y escritura
en la cultura jurídica de la España liberal, Madrid, Universidad Carlos III de Madrid,
2014, esp. pp. 59 and 65. For a history of the teaching of constitutional law in
Argentina: H. TANZI, La enseñanza del Derecho Constitucional en la Facultad de Derecho
de Buenos Aires, in « Academia. Revista sobre enseñanza del Derecho », 9 (2011), 17,
pp. 85-112.
duals acting in a self-regulative market without interference by the

« government » (18).
Nonetheless, the normative role of the concept and the parallel
de-politicization of subjects would require a strategy to integrate the
individuals in a common political space. The idea of a nation made
its entrance as a cohesive concept; one employed to reunify the lost
sense of community and collective identity — sentiments which had
been a part of the concept of republic until the 1850. Nonetheless,
the incorporation of the nation as a central concept not only
provided a mythical unification of citizens but, as a side effect, it also
changed the narrative about the origins of the Argentinean Consti-
tution (19). Starting in 1875, and primarily thanks to the work of the
liberal Catholic José Manuel Estrada, the idea of drafting a Consti-
tution of their own — one no longer assimilated to the American one
— was very prevalent amongst scholars. From this period onward,
the Constitution was no longer grasped in terms of an adaptation of
a foreign experience, but rather as a product of the history of their
own nation’s freedom (20).
The aspiration to have one’s own Constitution was forced to
deal with the problematic lack of a solid Argentinean constitutional
doctrine. In order to fill this void, history was regarded as a means
for interpreting the constitution. And from that time on, the inter-
pretation of constitutional law was provided by constitutional his-
(18) J.M. PORTILLO VALDÉS, Entre la historia y la economía política: orígenes de la

cultura del constitucionalismo, in Historia y Constitución. Trayectos del constitucionalismo
hispano, C. Garriga (ed.), México, Instituto de Investigaciones Dr. José María Luis
Mora, 2010.
(19) E. PALTI, El momento romántico. Nación, historia y lenguajes políticos en la
Argentina del siglo XIX, Buenos Aires, Eudeba, 2009, p. 26.
(20) The nation was also conceived as the actor of the constitutional movement.
As Joaquín V. González stated speaking of the constitutional history: « Hemos visto en
el capítulo anterior cómo nació, se desarrolló y formó su Constitución la Nación a que
pertenecemos los argentinos ». The nation would be the actor of the history and the
individuals suddenly would be determined as « Argentinos » (J.V. GONZÁLEZ, Manual de
la constitución Argentina, Buenos Aires, Ángel Estrada y C., 1897, p. 78). The culmi-
nation of this process of nationalization of the constitutional language can be seen in the
declaration of the « Argentinity of the Constitution », on this topic: M.R. POLOTTO, La
Argentinidad de la constitución. Nuevos enfoques para el estudio de nuestra carta magna
a principios del siglo XX (1901-1930), in « Revista de Historia del Derecho », 37 (2004).
tory (21). In this second stage, albeit still linguistically linked to

American conceptuality, scholars thought that constitutional contro-
versies could be better explained and solved by looking to Argen-
tinean history and, in particular, national characteristics (22). One
consequence of this operationalization of history, belonging to legal
interpretation, was that the language of historiography would be also
influenced by constitutional grammar. Thus, the concepts of liberal
constitutionalism were anachronistically presented as somehow be-
longing to the intentions of the forefathers of the Argentinean
nation. In other words, the naturalization of this new conceptuality
was achieved by means of a legitimization process made at the
intersection of constitutionalism and historiography.
In this renewed « historical-national » narrative of constitutio-
nalism, the concept of republic found a counter-model in the
Caudillo (described as a popular figure who led a large mob and who
represented the Argentinean ideal-type of personal « tyranny-dicta-
torship ») (23). Certainly, for Argentinean jurists of the early 20th
century, to speak about the Constitution was akin to speaking about
a project designed to limit the natural impulses of the native spirit in
order to protect against the historical tendency of men to fall into
the despotism of a Caudillo or a leader. As a consequence of this
narrative, a strong mistrust against the « multitude » developed and
led to the eventual rejection of universal democracy. So, during the
late 19th and in the first decades of the 20th century, the concept of
republic served as a way of not only protecting individuals against
(21) J.C. CHIARAMONTE, El mito de los orígenes en la historiografía latinoameri-

cana, Cuadernos del Instituto Ravignani 2, Buenos Aires, Ed. Instituto de Historia
Argentina y Americana « Dr. Emilio Ravignani », 1991, pp. 31-32.
(22) For example, J.V. González stated that: « Para no extraviarnos en teorías y
ambiguas interpretaciones, es necesario, en primer lugar, entrar en su estudio [el de la
constitución] con amor y respeto, porque es la obra de muchos sacrificios de nuestros
antepasados, y es la ley suprema de la Nación [...] recúrrase, entonces, a las fuentes más
directas, a las doctrinas más relacionadas con sus principios, a los orígenes históricos y
jurídicos... », GONZÁLEZ, Manual..., cit., pp. 17-18.
(23) See, for example: M.A. MONTES DE OCA, Lecciones de Derecho Constitucio-
nal, Buenos Aires, Tipo-Litografía « La Buenos Aires », 1917, p. 46; J.A. GONZÁLEZ
CALDERÓN, Derecho Constitucional Argentino, Buenos Aires, J. Lajouane & Cia, 1930, T.
I., p. 109.
dictators but also individuals from the masses (24). This limitation
went on to become a fundamental feature of the dark side of the
republic.
This new pragmatic use of the concept can be seen in the legal
interpretation of the « form of government » provided by the his-
torical explanation within the text of the constitution. To accom-
plish this, the concept of republic underwent a transformation in the
way in which « people » were represented (25). On the one hand, the
limitation of practicing politics outside the institutional apparatus
was key to fulfilling the idea of a moderated government (26). On the
other hand, constitutionalists reclaim a political patronage of the
masses. As they see it, the government of educated men would avoid
the intromission of masses inside the « machinery of the State »,
which would lead to « despotism » (27). According to the constitu-
tionalist narrative, the brutality of the so-called Rosas’s tyranny will
remain a threat to the ideal of the republic (República verdadera),
which — in accordance with the 19th century paradigm of progress
— can only be accomplished in the future (28).
(24) The figure of the « mass » formed a key topic of Argentine positivism,
which was intersected in the constitutional narrative. There would be a long history of
the Argentinean crowd inspired by Ramos Mejía, reading Le Bon, which synthesized the
leader’s formula — « meneur » — that would be followed by an ignorant crowd easy to
manipulate. O. TERÁN, Positivismo y nación en la Argentina, Buenos Aires, Puntosur,
1987, pp. 21-26.
(25) See, especially: MONTES DE OCA, Lecciones, cit., p. 81 ff.
(26) For González Calderón, the representation could only be understood by
analyzing the art. 22º which stated, « el pueblo no delibera ni gobierna sino por medio
de sus representantes »; after this principle, the republic meant the way of organizing
those authorities created by the Constitution (GONZÁLEZ CALDERÓN, Derecho..., cit., p.
425 ff.).
(27) The defense of republican individualism was exercised not only with the
caudillismo but also against « the State », characterized as a machine, according to the
classical metaphor of the XVII century. This also explains the rejection of the German
public law discourse, which was structured under the figure of the State. See: J.B.
ALBERDI, La omnipotencia del Estado es la negación de la libertad individual (1880), in ID.,
Obras Selectas, Buenos Aires, La Facultad, 1920; J.M. ESTRADA, Curso de derecho
constitucional, Tomo I, in ID., Obras Completas de José Manuel Estrada, T. VI, Buenos
Aires, ed. Científica y Literaria Argentina, 1927, p. 124 ff.
(28) Hence, the Janus face of the constitution, which was presented as learning
from the past and as a limit to the repeatability of that undesirable experience. For
The characteristic of the republic, shifted by the concept of

representation, meant a restriction of the universal vote (29). Only
once economic prosperity reached the shores of Argentina (for the
liberalism of Alberdi), or once the evolution of the society reached
a certain point of development (Spencerian positivism), would the
people be capable of participating in politics. Until one of these
conditions is fulfilled, only a selected group of people can guide the
project of a contemporary and unfinished republic (República Po-
sible). In short, the dark side of the republic was the denial of
democracy and the consolidation of a conservative order (30). Thus,
the connection between republic and representation served as a
means of exclusion, leaving the reformation of the nation in the
hands of the elite (31).
Both the liberal-republican discourse and the nation’s para-
digm — with its regimes of temporality, methodologies, and political
presuppositions — were eventually consolidated into the Argentine
constitutional tradition, which remains latent in the legal field of
nascent public law.
The success of the naturalization of tradition influences the
possibility/impossibility of receiving concepts not already produced
by this language. This effect of meaning configures the translation
process of a concept belonging to another semiotic space in the
language created by « tradition ». With an autopoiesis that presup-
poses the closing off of the juridical language in the name of
example, in the analysis of the article 29° of 1853-60 Constitution, Agustín de Vedia,
stated: « Esta disposición es como una protesta que se levanta del fondo de la historia.
La Nación se constituía apenas derribada una tiranía que había durado más de veinte
años [...] debía pensarse en poner freno a los avances de esos caudillejos arbitrarios
creados en la escuela de la barbarie y el despotismo » (A. DE VEDIA, Constitución
Argentina, Buenos Aires, Coni-Hermanos, 1907, p. 128).
(29) Despite several jurists stated that Republic was the government for the
people and by the people, it seems to the that it was better to recognize that the
government would only work when the citizenship « confía su ejercicio a un número
proporcional y libremente designado de los mismos, que deben reunir cualidades
especiales calculadas para hacer posible la dirección, régimen, seguridad y prosperidad
de los negocios comunes (res publica) ». GONZÁLEZ, Manual..., cit., p. 285 ff.
(30) N. BOTANA, El orden conservador. La política argentina entre 1880 y 1916,
Buenos Aires, Edhasa, 2012.
(31) O. TERÁN, La tradición liberal, in « Punto de Vista », 50 (1994), p. 28.
security for the user, the possibility of opening the semiotic system
of an established tradition requires a process of internal crisis that,
in the case of the constitutional language, became manifest towards
the end of the 1920s. At that time, adaptation or radical critique of
the liberal tradition was one of the jurists’ possibilities for opening
the door to the process of receiving a new conceptuality. This new
field of knowledge was further developed through a radical debate
on what jurists themselves would call the « crisis of law ».
2.2. The Catholic Staat and the Critical Reception of the

Estado de Derecho.
The historical determination of the nation and the devices
created to control and regenerate the society, in order to achieve an
« ideal Republic », proved to be insufficient in dealing with new
social movements, which radically demanded their participation in
politics. This situation was later aggravated by the immigration
process, which doubled the country’s population in just a few years.
This influx brought with it European experiences and impulses,
both in terms of culture and political demands. The limits of
liberalism and positivism, linked with the prejudice of conservatism
against politics, became evident when intellectuals had to deal with
mass democracy, especially once the male universal vote was decla-
red in 1912. The growing influence of political leadership, political
parties, and politics in the streets started to erode the liberal-posi-
tivist system. All these problems were an expression of the inability
of the vernacular constitutional republicanist language to grapple
with the conflicts and paradoxes of mass democracy. The critical
point was involved the ambivalence of the concept of republic
versus the concept of democracy (32).
In fact, the internal tensions within the political model of
Argentinean secular positivist liberalism quickly provoked a reaction
that manifested itself in a complex nationalist movement with strong
anti-liberal and anti-individualist characters. This movement pro-
(32) This can be found in the conceptual discussions that the anti-liberal
nationalist Catholics would carry out from the magazine « La nueva República ». See: M.
I. BARBERO, F. DEVOTO, Los nacionalistas, Buenos Aires, CEAL, 1983, pp. 79, 80, 99-103.
posed a hierarchical model of order — if not also corporatist — that

eventually came to being in the 1930 coup d’état (33). Both this
political movement and historical event are factors that influenced
during that time the formation of legal thought and above all of
constitutional thought.
Yet, in order to understand the indispensable relationship
between constitutional discourse and political events, one must look
at the legal method adopted at each historical moment, which is also
a condition for the possibility of observing the connection between
the historical-political context and legal language. Indeed, the crisis
of liberalism, which in Argentina began to weigh heavily on intel-
lectuals towards the end of the nineteenth century, gave rise to a
radical criticism of the episteme of constitutional law, which had
been shielded by the historical resource of the liberal and positivist
paradigm. The decadent perception of the idea of liberal progress
served here as the fertile grounds for the development of a debate
within the legal field, which in connection with nationalism —
particularly Catholic — revitalized the political dimension of
law (34). In this particular field, the methodological debate functio-
ned as a wedge for radical change in constitutional discursiveness,
and in turn, it motivated the intention of political intervention
through the reform of the electoral law or a constitutional re-
form (35).
After the perceived « crisis of law » (36) in Argentina in the
1930s, a true Methodenstreit occurred between Kelsen’s nomological
(33) For a general context of this event see: Crisis económica, avance del Estado
e incertidumbre política (1930-1943), A. Cattaruzza (ed.), Buenos Aires, Sudamericana,
2001. For the Catholic nationalism: F. DEVOTO, Nacionalismo, Fascismo y tradicionalismo
en la Argentina Moderna. Una historia, Buenos Aires, Siglo XXI, 2002.
(34) J. DOTTI, Carl Schmitt en Argentina, Rosario, Homo Sapiens, 2000, pp.
13-25.
(35) G. FRONTERA, La Reforma Constitucional como objetivo de la Revolución de
1930, in « Revista de Historia del Derecho », 23 (1995).
(36) M.R. PUGLIESE, La denominada “crisis del derecho” desde la perspectiva
argentina durante el período de entre guerras mundiales (1920-1940); A. ARAGONESES,
Crisis del derecho privado y legislación especial en Francia y en Argentina, both in Derecho
privado y modernización. America Latina y Europa en la primera mitad del siglo XX, María
Rosario Polotto, Thorsten Keiser, Thomas Duve (eds.), Frankfurt am Main, Max Planck
Institut, 2015.
positivism, which asked about the logical condition of the sollen,

and neo-Thomism, which postulated the need for considering the
« common good » as a presupposition for interpreting law in mo-
dern society (37). This debate highlighted the methodological crisis
of the evolutionary-historical point of view and its inability to deal
with the moral and ethical problem posed by the political crisis
unleashed after the First World War (38). This perception subverted
the temporal regime of constitutional thought. On the one hand, it
suspended any recourse to the past (constitutional history) as a
sufficient explanans in resolving political-constitutional problems.
On the other hand, it turned its gaze to the present and, in
comparative terms, reflected on the new trends within constitutional
law (especially in Europe) (39).
One of the consequences of the opening up to Europe, and the
perception that the acceleration of social changes resulted in a legal
crisis, was reflected in the conditions of textual production respon-
ding to the social demand for justice. At this time, legal journals
became the privileged space for the inscription of the methodolo-
(37) TAU ANZOÁTEGUI, La influencia, cit., p. 626; ID., El Derecho: cruce de miradas
y tendencias, in Antología del pensamiento jurídico argentino (1901-1945), Id. (Coord.),
Buenos Aires, Instituto de Investigaciones de Historia del Derecho, 2007, pp. 33, 43.
The greatest representative of neo-Thomism was Tomás D. Casares, who influenced an
entire generation of Catholic intellectuals in the legal field.
(38) O. TERÁN, Vida intelectual en el Buenos Aires de fin-de-siglo (1880-1910).
Derivas de la “cultura científica”, Buenos Aires, Fondo de Cultura Económica, 2000, p.
186; J. DOTTI, Las hermanas-enemigas. Ciencia y ética en el positivismo del Centenario, Las
Vetas del Texto, Buenos Aires, Las Cuarenta, 2005, pp. 67-104.
(39) In constitutional terms, two clear trends developed at this time: A tradi-
tional side still anchored in the logic described in the previous section (See D. PÉREZ
GHILOU, La constitución: enfoques académicos, in Antología..., Tau Anzoátegui (Coord.),
cit., pp. 345-347), and a newer perspective, which looked toward the events in Europe
and which heavily influenced the new constitutionalism. These late works were respon-
ding to the ideas of the time, which are summarized in the contributions by B.
MIRKINE-GUETZÉVITCH, Les nouvelles tendances du Droit Constitutionnel, Paris, Librairie
Générale de Droit et Jurisprudence, 1934; and M. MANOÏLESCO, Le siècle du Corpora-
tisme. Doctrine du Corporatisme Intégral et Pur, Paris, Librairie Félix Alcan, 1934.
Mirkine-Guetzévitch’s work is very important for this essay and presents the state of the
art survey regarding the État du Droit as a rationalization of the power in the face of
« new forms of absolutism » (Le soviétisme et le fascisme) — see, MIRKINE-GUETZÉVITCH,
Les Nouvelles, cit., pp. 46, 214-215.
gical debate and reception by the authors (40). The doctrinal article
and the critical review influenced, therefore, a rapid process of
debate that exhibited the intensity in the appropriation of new
knowledge.
In this context, the concept of Estado de Derecho entered the
Argentinean legal debate through Sampay’s Noción de Estado de
Derecho, published in the legal journal La Ley in 1939 (41). In this
article, the title of which indicates the defining interest in an unusual
word (notion), the difficulties associated with the concept are struc-
tured in the context of the interwar debates in Europe, mainly in
Germany and Italy. In this way, the theoretical novelty and its
contemporaneity were privileged over the historical weight of the
German tradition (42).
In this first essay, Sampay made an effort to insert the German
concept into the Argentinean constitutional tradition. In order to
achieve this, he filled the signifier Rechtsstaat with the traditional
elements of « republic »: the guarantee of individual freedoms (fun-
(40) M.R. PUGLIESE, Las Revistas Jurídicas en la Argentina en la primera mitad del
siglo XX. Una mirada cultural y didáctica sobre el género, in « Revista de Historia del
Derecho », 47 (2014). This legal phenomenon cannot be separated from a contextual
moment of general transformation in the publishing industry. In the case of Catholic
Nationalism, a connection can be seen to Criterio’s magazine, where the authors
expressed not only juridical ideas but also ethical-political reflections. See: E. ABÁSOLO,
Lineamientos de una mentalidad jurídica alternativa. La crítica al derecho vigente y la
elaboración de propuestas jurídicas renovadoras durante los diez primeros años de la revista
Criterio, in « Revista de Historia del Derecho », 28 (2000).
(41) A. SAMPAY, Noción del Estado de Derecho, in « La Ley », 14 (1939).
Regarding the novelty of the concept within the language of constitutional law, it should
be noted that in 1917, Montes de Oca translated Rechtsstaat as « estado jurídico
moderno »: « Mohl, escritor alemán, en 1844 consideró que el estado jurídico moderno,
en que existe la ponderación y equilibrio de los poderes, tampoco estaba comprendido
en la fórmula de Aristóteles » (MONTES DE OCA, Lecciones, cit., p. 80).
(42) It is no coincidence that Sampay was the initiator of this highly topical
debate. In fact, there is a biographical explanation relating his studies in Switzerland
with Dietrich Schindler in the 1930s. In 1934, in a Festgabe für Max Huber, Schindler
published an article entitled Über den Rechtsstaat. For a comprehensive study of those
debates in the Weimarer Republic and the NS-Regime, see: M. STOLLEIS, Geschichte des
öffentlichen Rechts in Deutschland. Dritter Band. Staats- und Verwaltungsrechtswissens-
chaft in Republik und Diktatur (1914-1945), München, Beck, 1999, Chapter V and pp.
330-338.
damental rights), equality before the law, and last but not least, the
division of powers (as a mechanism to safeguard rights). Never-
theless, appropriating the concept represented only the first part of
the task. He also dedicated an entire section of this introductory
essay to treating the true sense of « democracy » and « constitution »
in mass society, a topic relatively new to Argentinean constitutiona-
lism.
Given his work on the concept of democracy, Sampay was
unable to avoid attributing to the figure of the « people » a radical
characterization as a constituent power. The people, for Sampay,
were not to be considered the sum of isolated individuals at the time
of the election, but « the effective homogeneity of the nation,
engendered by a solid, common foundation of interests and convic-
tions » (43). Having observed the European political regimes, he
warned that large democracies impose a kind homogeneity — one
that suppresses the individual — in favor of the State, race or the
proletariat. On the other hand, he thought it possible to realize a
personalist form of democracy that seeks to recognize the enactment
of personal freedom. For him, only this latter formulation could be
considered Estado de Derecho. In so doing, the concept became
dissociated from liberalism, given that another political system
might also be able to realize man’s freedom.
The question underlying this theoretical construction is: What
was the « solid, common ground » connecting the Argentinean
people and that was meant to serve as the basis of the democratic
constitution? The answer was provided by the radical character of
constituent power, that is, the people establishing their own political
order. For Sampay, the will of the people is the origin of all
legitimacy. However, and here he departs from Schmitt, this is a
condition provided by « natural law » (44). This interpretation
shielded itself from the radical political nature of the Schmittian
proposal and redirected legitimacy to the meta-positive principle of
law, which for Sampay was none other than human dignity — one
(43) SAMPAY, Noción..., cit., p. 67.

(44) DOTTI, Carl Schmitt..., cit., pp. 135-166.
of the key aspects of his thought (45). The people’s will was then
limited by natural law. To prove that this respect for human dignity
was the common basis of the Argentinean « interest and convic-
tion », the theological approach to politics and the history of
Argentina as a « Catholic nation » appeared as a legitimate device.
Sampay’s article quickly provoked a response from Renato
Treves, who was living in Tucumán after being exiled from Italy (46).
In both Italy and Germany, Treves thought that the use of the
concept was only an attempt to legitimize the national socialist and
fascist regimes. If we wish to understand the debate, he states, then
we need try to grasp the authors’ state of mind at that time rather
than searching for some specific content belonging to the concept.
For those trained in the liberal classical tradition, the concept had to
be used because of the legitimacy it already possessed, while for
younger people, the need to suppress or overcome it — due to its
association with the previous, decadent phase of social development
— was evident. In this way, Treves indirectly warned Sampay to be
aware of the concept’s symbolic effectiveness in legitimizing all
forms of authoritarianism. It was within this initial debate that the
concept of Estado de Derecho was first introduced in Argentina.
A few years later, in 1942, in the midst of a strong debate
among Catholic jurists about the form of the state and the system of
representation (corporatism) (47), Sampay published La crisis del
Estado de Derecho Liberal-Burgués (48). As the title indicates, the
(45) I use Carl Schmitt in this essay because he offers a radical criticism of the
positivist-legal perspective. In fact, using Schmitt allows us to introduce the question
concerning the legitimacy of confronting the positivist thinking matrix. This would
enables Sampay to overcome the formal logic of constitutionalism and, at the same time,
to consider the right for a radical reform of the Constitution by addressing the theory of
the Pouvoir Constituent.
(46) R. TREVES, El Estado de Derecho y las nuevas organizaciones estaduales, in
« Sustancia. Revista de Cultura Superior », 2 (1939), pp. 161-171. A bibliographical
piece of this article also appeared in the magazine « La Ley », 16 (1939). See, also, DOTTI,
Carl Schmitt..., cit., pp. 260-261.
(47) On Argentinean corporatism, see: J.F. SEGOVIA, El modelo corporativista de
Estado en la Argentina, 1930-1945. Entre el derecho, la política y la ideología, in « Revista
de Historia del Derecho », 34 (2006), pp. 269-355.
(48) A. SAMPAY, La crisis del Estado de Derecho Liberal-burgués, Buenos Aires,
1942. The reception of this work merited a critical reading by Ricardo Smith, who not
Rechtsstaat meant with a critical reception; in fact, this concept was

seen as a historical phase that had already come to an end (49).
However, this controversial side of the thesis — which will be
discussed below — must not overshadow the radical change that the
reception of the German Staatslehre and Schmitt’s Verfassungslehre
produced in the constitutional grammar, as it was known until then.
These new influences would politicize the constitutional language
through the key concept of State.
According to this new perspective, the State was no longer to
be understood as a concept of international law, which defined
internal sovereignty (50), or as an administrative machine equivalent
to the colonial apparatus (51). Instead, the State would be defined as
a way of living, historically determined by the action of real and free
men. These men, drawing upon the families and smaller corporative
institutions as their basis, would go on to define a political status of
unity and ordination of the people — destined to achieve a goal (52).
Since Sampay considered the State a political being, it was subject to
only attacked favoritism by a « corporate state » to the Portuguese — a question that

Francisco Ayala had already highlighted in the prologue to the book — but also
destroyed the desire for an anti-liberal « Catholic democracy » founded on the reading
of Carl (Karl, for Smith) Schmitt. See: R. SMITH, La crisis del Estado de Derecho
Liberal-burgués, por Arturo Sampay, in « La Ley », 28 (1942), pp. 1139-1148.
(49) The title of the work itself announces the critical turn against the « liberal
state ». This change in the perspective can be seen on two levels. The choice of the
liberal-bourgeois adjective is a synthesis of the criticism developed by anti-liberal
German jurists and especially by Carl Schmitt (See: Ch. HILGER, Rechtsstaatsbegriffe im
Dritten Reich, Tübingen, Mohr Siebeck, 2000, pp. 12-20). Secondly, a new form of
temporality is used. Sampay no longer speaks of the concept in the abstract but rather
in terms of a « state » in crisis. Overcoming this crisis implies a change to a new form of
« State ». This critical radicalization is probably due to his contact with Carl Schmitt’s
essay Was bedeutet der Streit um den „Rechtsstaat (1935), which was quoted by Treves
and later appeared in Sampay’s work. In both Carl Schmitt’s essay and in Sampay’s
book, the past-future temporal structure of the argument plays a central role. See:
SAMPAY, La crisis..., cit., p. 62, f. 1.
(50) GONZÁLEZ, Manual..., cit., p. 83.
(51) ALBERDI, La omnipotencia..., cit.
(52) SAMPAY, La crisis..., cit., p. 27, 37 and 48. This condensation of the
State-political was decisive since it implied the appropriation of all political phenomena
by the State. Faced with this totality, the theory of Catholic subsidiarity in the Encyclical
Quadragesimo Anno played the role of limiting the State in the face of the individual. The
modification (53). Having observed this modifiability, Sampay stated

that confronted with what was referred to as a historical-critical
moment, new political and social objectives demanded a political
decision be made. Hence, the fundamental role of the constitution
— in the sense of Schmitt’s Verfassungslehre — was to establish a
new political-juridical order; one structured by the people’s cosmo-
vision and used as a means for structuring a common life, which for
Catholics was synthesized in the search for the Bene Commune (54).
This appropriation of the concept of the Staat also provoked a
redefinition of the semantic core of terms republic and nation. The
conception of the State as a political unit meant that the unifying
role of the nation was no longer fundamental. On the other hand, as
the State also represented a concept of order established by political
decision, it displaced the normative demand of the republic —
which became one historical modus for representing the order and
desires of a political community (55). However, this was not meant to
imply that the questions of the nation should be erased. For, as
previously mentioned (and despite the tension with regard to the
concept of « the people »), the history of the nation — this time
written in terms of Catholic tradition — served as a device for
Catholic character of this proposal was especially written against the background of
Jellinek’s traditional theory of the Selbstbeschränkung des Staates.
(53) Sampay warned that political being is « State, in the modern lexicon ». The
influence of Schmitt’s Verfassungslehre is obvious here. It allows for an assimilation of
the concepts of state and politics that operate differently in Der Begriff des Politischen.
In other words, the latter serves as the foundation of the former. On the Schmittian
reading of the political and its relationship with the State that influences this whole
reading, see: L. STRAUSS, Anmerkungen zu Carl Schmitt, Der Begriff des Politischen, in ID.,
Gesammelte Schriften. Hobbes’ Politische Wissenschaft und zugehörige Schriften- Briefe,
Stuttgart, Metzlersche-Poeschel, 2001, p. 217.
(54) The concept of « State » appeared in this context as a simile of polis, which
implied not only the politicization of the concept, since this term was meant to represent
the total political community, but also a critique of individualism from the moment in
which, as Sampay recalls reading Schmitt, « the individual could not be emancipated
from that totality ».
(55) The decision is also limited by natural law. Sampay’s friendship with O.
Derisi was significant in helping to forge his political-Thomist thought. See: SAMPAY, La
crisis..., cit., p. 107, f. 2. The political decisionism of the time was very strong in Sampay’s
thinking, due to the relationship between theology and politics: miracle and decision.
legitimizing the political decision and the internal characteristics of

the Argentinean State (56).
This new language (57), which spread rapidly among Catholic
intellectuals (58), allowed Sampay to formulate a radical critique of
the 1853 constitution, yet without getting caught up in the language
of republicanism. In fact, at this point, the concept of Estado de
Derecho played a central role. Sampay identified the Alberdian
constitutional model with the « Estado de Derecho liberal-bur-
gués », thus shifting the characterization of the traditional constitu-
tional language and breaking the internal logic of normative-consti-
tutional knowledge (59). In establishing this connection, Sampay
re-politicized the Alberdian constitutional moment through its his-
toricization and declared its terminal crisis (60).
For him, as well as for later jurists, the neutral role of the State
in society, associated with the depoliticization of individuals, needed
to be reformed (61). The most important thing, however, was the
(56) In this way, from a history of juridical-political languages, the title of Loris
Zanatta’s work, « From the Liberal State to the Catholic Nation » can be inverted, since
in terms of the employment of the concepts, the nation served as the basis for the unity
of liberalism, while the State served as the basis for the Catholic proposal. See: L.
ZANATTA, Del Estado Liberal a la Nación Católica. Iglesia y Ejército en los orígenes del
peronismo. 1930-1943, Bernal, Universidad Nacional de Quilmes, 2005.
(57) In addition to the reception of the concept of the State, various theories and
institutions, such as the Catholic theory of subsidiarity, the concept of the constitution
in a material sense, etc., entered into the juridical language of public law, thus
broadening the theoretical basis of the constitutional debate. This dislocation had an
impact on the knowledge of constitutional law — one that could hardly be traced back
to the logic of the nineteenth-century forms of restricted democracy of republicanism.
(58) The reception of this work can be seen above all in the Teorías del Estado,
which was published between 1945 and 1951 by Pablo Ramella, Ernesto Palacio, and
Arturo Sampay. On the Catholic nationalist jurists, see: J. F. SEGOVIA, Peronismo, Estado
y Reforma constitucional. Ernesto Palacio, Pablo Ramella y Arturo Sampay, in « Revista de
Historia del Derecho », 32 (2004), pp. 347-441.
(59) SAMPAY, La crisis..., cit., p. 70.
(60) The use of the voice moment is not narrative license. Here it is used in the
sense that Sampay attributes it, following Hermann Heller, as a « Phase that can be
designated in a movement » (SAMPAY, La crisis..., cit., p. 53, f. 1).
(61) It is worth noting the influence of Carl Schmitt’s Legalität und Legitimität
(1932) as a basis for criticism of Kelsenian positivism, which was associated with the
liberal state. The legal theory was incorporated into, and served as a basis for, the
formation of a new anthropological perspective. This time, against

the background of the « homo economicus », the integrality of
human existence entered into the discourse, and the ethos of the
State was redefined to provide « dignity » instead of liberty and
economic prosperity. Thus, the proposal called for the dissolution of
the « liberal State » (also referred to as « abstentionist ») and the
subsequent creation of an interventionist State.
However, the crisis of the liberal state required a « decision »
in order to consolidate the new political being of Argentina, espe-
cially in the face of the threat of totalitarianism. Moreover, the
liberal crisis required a national solution for Argentina. To this end,
nationalism was seen as a way of limiting the transplantation of new
constitutional models. Sampay’s Janus-faced proposal should be
understood within the context of the historical critique of Alberdi’s
model and his reserved stance towards the contemporary organiza-
tion of the State under fascism, national socialism, and the U.S.S.R.
Thus, following Salazar’s corporatism, yet inquiring about the es-
sence of the Argentinean people, Sampay proposed a « welfare
state ». This theory was materialized in the Peronist Constitution of
1949. In fact, in the parliamentary debates, Sampay again began to
criticize the liberalism of Alberdi’s Constitution and called for a
« protectionist state », sometimes referred to as the « prosperity and
welfare (previsional) State » (62). For the first time, the State was not
seen as a threat to individuals but as the creator and protector of
constitutional rights.
The obvious consequence was the dissolution of the consti-
tutional tension between society and State, which served as a
premise for liberal constitutionalism and, consequently, led to a
political discussion of public law. For a defense of Kelsen, see SMITH, La crisis..., cit., p.
1143.
(62) Diario de sesiones de la Convención Nacional Constituyente 1949, Buenos
Aires, Imprenta del Congreso de la Nación, 1949, p. 271. In the political debate, Sampay
stopped using the expression « Estado de Derecho Liberal-Burgués » to refer to the
« liberal state », which was more common at that time. See: F. AYALA, El Estado Liberal,
in « La Ley », 20 (1940), pp. 63-69. This variation in conceptual uses shows the thin line
separating the political-constitutional and constitutional discourses.
radical politicization of the population (63). This process of politi-

cization intensified once Peron broke with the Catholic Church and
unveiled a political model that moved away from the theory of
subsidiarity. The results were not just theoretical, for the political
manifestations included the persecution of opponents, single trade
unionism, government interventions in different autonomous
spaces, etc. (64).
For the jurists educated in traditional constitutional law, the
reform and its principles were seen as exceptions, if not deviations.
In this way, despite the validity of the constitution, the contrast
between traditions generated a negative perception of its legitimacy,
which weakened the very foundations of the 1949 constitutional
process and generated an association of the language of the State
with Peronism.
2.3. The Estado de Derecho under the Legal Positivism and

American Political Science: 1955-1983.
The main problem of the anti-liberal conception of Peronist
constitutionalism was the blurry (if not inexistent) separation
between State and society, a consequence of which was the extreme
politicization of the later. The anti-Peronist reaction was also impli-
cated in this logic, and in 1955, a military coup d’état removed
Peron from power. The political and juridical fields underwent
extreme changes. Just to name a few: The Constitution of 1949 was
abrogated; Peronist supporters were excluded from playing any role
in the new regime, and the constitutional literature written during
this period disappeared from the universities. The Constitution of
1853 was re-established by decree, and the part of the 1949 Consti-
(63) It was not clear whether politics was to be considered as equivalent to or

as the basis of the state, and this was linked to the criticism of the separation between
state and society. This was a direct criticism directed at the basis of liberalism. For
Sampay, this principle had been artificially created by Lorenz von Stein, and conse-
quently, he asked for a reconsideration of the separation between State and society (A.
SAMPAY, Introducción a la Teoría del Estado, Buenos Aires, Politeia, 1951, p. 375, f. 1).
(64) This would also exclude Sampay from the Peronist universe.
tution that was retained was the recognition of social rights — which
were, paradoxically, protected by the State (65).
Due to the prohibition of the dominant popular party, the
constitutional discourse suffered from a lack of legitimacy. Aware of
the precarity of this situation, the formal and positivist approach to
law proved to be successful. On the one hand, it obscured the
problem of legitimacy, because the Kelsenian model worked on the
base of deductive-logical interpretation. On the other hand, legal
positivism was not based on history, which had been the traditional
modus operandi of legitimatization in constitutionalism.
However, as previously stated, the new political languages that
had emerged over the course of the past few decades weren’t easily
erased. Despite the fact that some of the earlier, traditional consti-
tutional law manuals were reprinted, the new constitutionalism,
nevertheless, was forced to confront the problem of incorporating
the conceptuality of the State into the traditional language of the
restored Constitution of 1853. This tension between two diverse and
contradicting traditions (liberal and anti-liberal) was resolved by
re-writing the tradition by means of a theoretical approach. In other
words, juridical positivism was able to incorporate a more abstract
political theory (66).
The new political-constitutional order influenced the structu-
ring of legal matters. While constitutional law had rejected the
Schmittian matrix, the Staatslehre gradually moved in the direction
of political sociology. The latter established its own space for
reflection in the 1980s with the formation of the subject « Theory of
the State » at the University of Buenos Aires. For its part, constitu-
tional law, instead of returning to the pre-Peronist tradition, incor-
(65) D. PÉREZ GUILHOU, Los liberales conservadores en la Convención Consti-

tuyente de 1957. Un capítulo de las ideas político-constitucionales argentinas, in « Revista
del Instituto de Investigaciones de Historia del Derecho », 28 (2000), pp. 401-448.
(66) An interesting piece of news on the intellectual climate of Argentine
positivism can be seen at the conference of Alf Ross held in Buenos Aires in 1961 (see:
A. ROSS, Validity and the Conflict between Legal Positivism and Natural Law, in
Normativity and Norms. Critical Perspectives on Kelsenian Themes, S. Paulson (ed.),
Oxford, Clarendon Press, 1998, pp. 147-163). With the fall of Peronism, the Thomism
would be weakened, turning the scale of academic reflection in the National Universities
towards Kelsenian positivism. The influence of Carlos Cossio stands out here.
porated some elements of American political science as its theore-

tical framework for working on the material aspects of the consti-
tutional theory (a question opened by the radicalization of the
political role of the people in the constituent moment) (67). This
latter selection of a new narrative and tradition was in tune with the
formation of a new theoretical perspective in Argentina, which
opened itself up to American structural-functionalist sociology. This
eventually went on to impact the field of law but also general
sociology and political history starting in the mid-1950s (68).
The methodological change in the hermeneutics of the consti-
tutional text — between American political science and juridical
positivism — redefined the conditions of bibliographic production.
Here, we see a new literary role of constitutionalists, who, on the one
hand, wrote treaties on doctrinal interpretation for lawyers and
magistrates and, on the other hand, worked at the university by
producing manuals — which constituted a more theoretical sector
that was closely related to the constitutional phenomenon in general.
One example of this new constitutionalism can be found in the
monumental work of Francisco S. V. Linares Quintana, who — after
a long self-exile during Peronism — had returned to Argentina from
America. During this time, he worked as a teacher and researcher at
the University of North Carolina, where he was steeped in recent
American political science theories and also developed a strong
bond with Karl Loewenstein (69). Both in his nine volume Tratado de
la Ciencia del derecho constitucional (1953-1963) and in his two
volume Derecho constitucional e instituciones políticas (1970), a work
that can be seen as both an epochal synthesis and source of
conceptual meaning among jurists, Linares dealt with the concept of
Estado de Derecho. However, in order to understand the meaning
(67) M. FIORAVANTI, Le dottrine della costituzione in senso materiale, in « Histo-

ria Constitucional », 12 (2011).
(68) E. ADAMOVSKY, Historia de la clase media argentina. Apogeo y decadencia de
una ilusión, 1919-2003, Buenos Aires, ed. Planeta, 2009. Parsonian sociological assump-
tions would also impact the historical narrative that would see Peronism as an exception
in the history of a « middle class », considered by the apologist of this representation of
the past as « the true representative of the Argentinean nationality ».
(69) C. MAYON, Linares Quintana: una larga y fructífera vida dedicada a la ciencia
política y constitucional, in « Anales », 43 (2013).
given to the concept, it is necessary to analyze the epistemological

turn that occurred in constitutional law starting in the 1960s.
The first problem that the new constitutionalism was faced
with was the excessive politicization of constitutional theory that
had taken place during the 1930s and 1940s. To deal with this
problem, the new jurists needed to « de-statistize the political »
(Entstaatlichung des Politischen) by reducing the meaning of the
concept of the State. This was achieved through an epistemological
criticism against the Teoría del Estado, warning that modern « po-
litical science » should not only be concerned with the « State » but
also with the governance of societies. For Linares, understanding
« the political » as the exclusive study of the State corresponded to
a traditional, restrictive, and limited approach. From this perspec-
tive, he postulated that the analysis of « the political » needed to be
extended to « the science of society’s government ». In so doing, he
wanted to overcome what he labeled the « limited » scope of the
state phenomenon. Behind this naïve definition of the scientific
scope, he implicitly reduced the concept of the State in contrast to
a variety of other social institutions, which this way of thinking
considered superfluous (70). While Linares was very hesitant to forge
his own conception of the State, his approach is similar to traditional
positivism in that it presented the State as a juridical person distinct
from the subjects (Carré de Malberg), to which he added the
Kelsenian element identifying it as « the personification of the
juridical order » (71). With the limitation of the State sphere, one
space was opened up where it was possible to think about politics:
society.
What was the principal theme of political science? In line with
American contemporary studies, Linares did not hesitate to define
(70) Here, the German tradition was read through an Anglo-Saxon lens. Thus,
while in Germany the state had been traditionally viewed as a « republic » — according
to the traditional characterization — or a « whole political society », from this moment
onwards, the term was used as a more technical concept that designated the adminis-
tration. Thus, the concept of the State would progressively turn into a « governmental
machine », which later more closely approximated « governmental institutions », « ad-
ministrative cadre », or « governing body ».
(71) S. LINARES QUINTANA, Derecho constitucional e instituciones políticas. Teoría
empírica de las instituciones políticas, Buenos Aires, Plus Ultra, 1970, pp. 65-78.
the object of study as the problem of power in society (72). This

re-redefinition of the object would have two major consequences for
the constitutional theory. On the one hand, instead of the question
of sovereignty as a constituent power, for the new constitutional law,
based on political science, sovereignty became the « legal rationali-
zation of the power ». The radical problem of the material consti-
tution was thus given over to the dynamics of political analysis
carried out by lobbyists, interest groups, etc. (73). On the other hand,
and as had already been anticipated, the study of power in society
presupposed the irreducible separation of the latter from the State,
and this is where the Constitution came in.
From this point of view, the Constitution would have two
distinct roles. Theoretically, from the perspective of political
science, the Constitution was nothing more than the crystallization
of political tensions between individuals in society. However, from
a political perspective, the Constitution was seen as a controlling
device to prevent the state from taking control of social power. This
latter role was the condition for the possibility of displaying a
societal analysis of the power. In fact, Linares’s immersion of « social
life » into the State meant falling into « totalitarianism »; meanwhile,
maintaining the distinction between « society/State — the social and
the juridical — » was the main task of the constitutionalized State
and democratic politics (74). It was under the auspices of this last
(72) Ibid., p. 43. Among the North American authors who guide this narrative,
we have: David Easton, Charles Merriam, Harold D. Lasswell, T.V. Smith, and George
Catlin.
(73) The inscription of the political in the society made the State superfluous.
Nevertheless, Article 22° of the Constitution of 1853-60 only allowed for politics to be
carried out within the framework set forth by the State — the implications of which
implied a contradiction within the praxis of constitutionalism. Hence, the need for a
systematic study of lobbyists and interest groups arises. Thus, paradoxically, politics
could only manifest itself within the State, and civil society was configured in terms of
a purely economic model of exchange. On the concept of civil society, see: S. CHIGNOLA,
Fragile cristallo. Per la storia del concetto di società, Napoli, Editoriale scientifica, 2004.
(74) LINARES QUINTANA, Derecho constitucional..., cit., p, 64; A similar critical
operation was carried out for the German field by E.W. BÖCKENFÖRDE in his classic 1972
conference: Die verfassungstheoretische Unterscheidung von Staat und Gesellschaft als
Bedingung der individuellen Freiheit, Düsseldorf, VS Verlag für Sozialwissenschaften,
1973.
postulate that the concept of the Estado de Derecho found a place in

the constitutional discourse.
The re-signification of the traditional separation of State and
society first made it possible to recover the nineteenth-century
characteristic of the concept, that is, by presenting it as « the
subjection and accommodation of the State to the Law » in order to
protect subjects. Linares pointed out that the term was formulated
by Robert von Mohl in 1832, warning that the Estado de Derecho was
the counterposition to the Estado de Policía (proposed by Machia-
velli!?). After linking together generations of German jurists — from
Stahl to Schmitt and Kelsen — as champions of this principle, he
filtered it through the American tradition by stating that the Estado
de Derecho is the « rule of law » (Gobierno de leyes) and not « rule
of men » (75). Together with Legón, he pointed out that the aim here
was to limit the « mere fleeting and passionate arbitrarity ». Later
on, he brought it to the Río de la Plata, citing Supreme Court
Judgment Edelmiro Abal of 1960, which states that the Estado de
Derecho is the state limited by the Constitution, thereby gua-
ranteeing « a calculable stability of relations between governors and
governed ». This stability was the very essence of constitutional
order, and to support this value, Linares quoted Bertrand de
Jouvenel, who thought that when « the fundamental rules and
notions are capable of being modified indefinitely, it creates the
most advantageous situation for the despot! » (76).
After having justified the concept, Linares needed to condense
the typology into a clear and positivistic group of characteristics. To
accomplish this, Linares drew upon the recent work of Elías Díaz,
from whom he drew four key characteristics of Estado de Derecho: 1)
« imperio de la ley »; 2) separation of powers; 3) legality of admi-
(75) LINARES QUINTANA, Derecho constitucional..., cit., p. 85; the double inscrip-
tion of the concept of Estado de Derecho in the tradition of 19th-century German
liberalism and as a word that synthesized the American constitutional desire, made the
debate that arose in the 1940s invisible.
(76) Ibid., pp. 85-86.
nistration: legal regulation and judicial control; 4) fundamental

rights and freedoms (77).
Using these characteristics, the concept finally had a formula-
tion that was easy to learn, but above all, it received a legitimization
that was difficult to transpose. It is worth mentioning that both the
historical-emotional narrative, which inscribed the concept in the
long universal constitutional struggle for freedom, and the analytical
systematization were key to redefining the concept. This combina-
tion allowed readers to come up with an interesting condensation
that assimilated the Estado de Derecho to the « republic » and the
« Estado de Policía » as equivalent to « despotism » and « ty-
ranny » (78). In so doing, Linares accomplished two things: First, he
successfully redefined the guiding concepts of constitutional
thought (79); second, it enabled jurists to work with the liberal
Constitution of 1853-60 within a positivist context, thus helping
them to deal with political and social conflicts without having to
carry out a constitutional reform (80).
(77) Ibid., p. 87. The positivism and the historization of « ideas » allowed for a
decontextualized appropriation of the work of Elías Díaz, who clearly sought to critique
Franquism; a position that had sought to give legitimacy to the regime against the
backdrop of foreign countries by using the concept of the Estado de Derecho. This
dialogical and historical moment is not evident in Linares’s construction. See: S. MARTÍN,
Del Fuero del Trabajo al Estado Social y Democrático. Los juristas españoles ante la
socialización del derecho, in « Quaderni Fiorentini », 46 (2017), pp. 369-371.
(78) For example, in the series of lectures organized by the Colegio de abogados
de Buenos Aires (Buenos Aires bar association) in 1980 on the Estado de Derecho in
Argentina, Tomislavo Davinovich said that « in dark hours, Alberdi’s legacy [needed
to be remembered]. That legacy was, for a century, the Estado de Derecho in Argen-
tina (« en horas aciagas, al legado de Alberdi. Ese legado fue, durante un siglo, el Estado
de Derecho en Argentina »). See « Revista del colegio de abogados de Buenos Aires »,
1980, 1.
(79) In this way, a 19th century leitmotif was also proclaimed untouchable. The
‘completeness’ of the concept and the rejection of the state’s projection on the social
resulted in a closure of the concept « Estado Social de Derecho ». On this topic, J.R.
Vanossi published in 1982 a widely circulated book called El Estado de Derecho en el
Constitucionalismo social. However, this work remained within the framework of
political theory rather than in the constitutional field.
(80) Another example of this positivist perspective of Estado de Derecho can be
seen in the essay from 1960 by Agustín Gordillo, the title of which is also explicit about
the methodological trend of the time: « Estructuración dogmática del Estado de
The abstract formulation and the theoretical un-definition of

the concept permitted an extremely broad range of uses. From the
side of history written by jurists during this period, the normative
concept served as a narrative motif by means of which to criticize the
recent past, especially Peronism. At this point, anti-Peronism found
in Estado de Derecho the framework from which to perform a
political reproach. In other words, the emotional part of this concept
was historically determined as a counter-position to Peronism
(which had been labeled a « second tyranny » by the military
forces) (81).
The influence was even greater in the jurisprudential field since
the formula was used to legitimize the defense of individual gua-
rantees by the magistracy, thereby giving rise to the praetorian
construction of the figure of Amparo. This phenomenon is also
interesting because it brought the dogmatic-ahistorical construction
of the Estado de Derecho closer to the Anglo-Saxon « rule of law »
system. Moreover, it produced a particular subjectivisation of citi-
zenship. In fact, the protection granted by jurisdiction was funda-
mental to securing the constitutional rights of private individuals,
which should be protected not only against the State but also against
the action of social groups (82). Finally, the figure of Amparo serves
as a guarantee for the defense of the rights of the individual, which
did not possess an ethical value, since it was presented in terms of a
contrast between a factual situation and a recognition of rights
explicitly declared in the constitutional text.
The incorporation of the principle in the jurisprudence of the
Supreme Court and its use to develop a historical narrative of law
Derecho ». See A. GORDILLO, Estructuración dogmática del Estado de Derecho, Lecciones

y Ensayos 17, Buenos Aires, 1960.
(81) An example of this problematic and almost bizarre use can be found in the
conferences organized in the Colegio de Abogados de Buenos Aires in 1980. This meeting
took place at the same time that a strong criticism of the human right movements
denounced the practices of the last dictatorship. However, the conference cycle was
named Ciclo de conferencias sobre la Historia del Estado de Derecho en la Argentina entre
los años 1943 y 1976 (see « Revista del colegio de abogados de Buenos Aires », 1980, 1).
(82) This constitutional guarantee of rights, which entered into the Constitution
of 1994, was a praetorian formulation by the Supreme Court in two major cases: Siri,
1957 (CSJN, Fallos, 239:459) and Kot, 1958 (CSJN, Fallos, 241:291).
evidence the proliferation of the new concept among jurists of the

time, but this time under the hermeneutic prism of a renewed
tradition and not as a theoretical derivation of political doctrine.
The dogmatic formulation developed during this period per-
sists to the present day in the classrooms of constitutional law.
However, the country’s political history gave this concept a new plea
of meaning, which would configure a special semantics for the
Argentine case, which would be inscribed in the matrix of a
democratic inspiration based on human rights.
2.4. The Limits of Dogmatic Positivism: Human Rights and

Democracy (1983-2015).
Since 1983, the status quo of the dogmatic formulation of
Estado de Derecho was disturbed by the process of recognition of the
aberrant crimes against the humanity committed during the last
dictatorship (1976-1983). The acknowledgment of the tortures and
kidnappings by the people as well as the demand for justice for the
Desaparecidos invaded the public sphere. Against the background of
this undeniable horror, the abstract formulation of the concept and
its usage to legitimate any State action according to law separated
from the ethical question was no longer possible. The continuity of
the dogmatic position was limited in the face of the demand for
reparation that arose out of transitional justice. In 1983, when
president Alfonsín started the long journey back to democracy, one
of the key points was the reconstruction of a democratic culture that
would encompass not only the political and social sphere but also
the action of justice within the State.
Within this context, the 1985 trial of Juntas Militares repre-
sented a foundational milestone of the new democracy. This political
decision was considered crucial in order to expose the risks connec-
ted with living outside of democracy, tolerance, and constitutional
guarantees (83).
To achieve this goal, two parallel strategies were deployed. On
(83) The literature on this period is vast. See: A. PUCCIARELLI, Los años de
Alfonsín ¿El poder de la democracia o la democracia del poder?, Buenos Aires, Siglo XXI,
2006.
the political side, the demand for unveiling the underground actions
of the military dictatorship was realized by a commission that
described the atrocities committed by the regime. As the title
indicated, the Nunca Más represented a barrier against « state
terrorism » (84). The main point of this report was the introduction
of Ernesto Sábato, who established a kind of endpoint for the
wound opened by the radical violence of the dictatorship. Sábato’s
analysis produced an explanation that was quickly labeled the
« theory of the two demons ». This « theory » established a para-
digmatic narrative in which Argentina had experienced a war
between two demons: on the one hand, the « guerrilla », on the
other, the military forces. According to this narrative, Argentinean
society had been trapped between these two violent forces. The
critique in the preface of Nunca Más simply claims that the military
forces neither applied the military code nor conducted any legal
process against the « subversive ». Instead, of conducting them-
selves according to their own codex and guidelines, they engaged in
a dirty war. However, the fundamental role of the text was to expose
the radical evil that the military dictatorship had displayed in
Argentine society. Needless to say, this report was widely read (85).
On the juridical side, and based on this political and social
consensus, there was a necessity for reinstalling the idea of a
democratic order under the auspices of justice, so the crimes against
humanity could be punished. The political and juridical orders were
once again working together — this time, however, in order to
reconcile society.
Within the field of constitutionalism, the mentalities of those
involves underwent a substantial change. Against the extension of
legal positivism among scholars, these authors interjected several
(84) Nunca Más. Informe de la Comisión Nacional sobre la desaparición de

personas, 1984. In this work, the concept of Estado de Derecho is mentioned in contrast
to the concept of « Estado de Sitio ». It was noted in the report that the declaration of
the « state of siege » was a strategy to « grant [...] legality to the political persecution
unleashed by a dictatorship that devastated our republican institutions ». It is worth
highlighting, however, the appearance of the concept of « state terrorism » as a formu-
lation for cataloging the action deployed by the repressive civil-military apparatus.
(85) H. VEZZETTI, El juicio: un ritual de la memoria colectiva, in « Punto de
Vista », 24 (1985), p. 4.
ethical questions into the legal debate. Indeed, the constitutional

language was shifted as a result of the inscription of the Argentine
tragedy, not in the logic of an internal war but in the universal
history of the « administrated massacres » of the 20th century (86).
History and politics — which had determined the constitutional
question — could never have sufficiently confronted the radical
nature of the evil that had unfolded in Argentina. Hence, the
constitutional question of the order was ultimately displaced by the
introduction of ethics into law.
In order to achieve the restoration of democracy, a number of
jurists educated in the analytical school of philosophy worked side
by side with President Alfonsín in trying to establish a new para-
digmatic discourse from which to judge the crimes against humanity
committed by the dictatorship. They restored the concept of Estado
de Derecho, but this time distancing themselves from the « dogma-
tic » definition and linking it to the ethical question of human rights,
truth, and justice (87). The reception of Habermas, Elster, and
Rawls, among others, started an accentuation of democratic presup-
positions and of philosophical debate inside the language of consti-
tutionalism (88). This new methodology criticized the idea of redu-
cing constitutional thinking to political order and power (in a
Schmittian way) but also against excluding the question of ethics as
a central feature of the debate — as the legal positivism had done.
In short, the main characteristic of this new constitutionalism was
the reinstallation of the idea of values at the heart of the discourse,
(86) C. ALTAMIRANO, Sobre el juicio a las juntas militares, in « Punto de Vista »,

24 (1985), pp. 1-2. For a restrospective, see rather the key analysis: H. VEZZETTI, Pasado
y presente. Guerra, dictadura y sociedad en la Argentina, Buenos Aires, S. XXI, 2002, p.
18.
(87) Carlos Alchourrón, Eugenio Bulygin, Eduardo Rabossi, Carlos S. Nino,
Genaro Carrió, among other jurists, all worked to revitalize the democracy by esta-
blishing a new paradigm of justice.
(88) For example, the very same titles of Carlos S. Nino’s works offer the reader
a clue as to the radical change in the way of thinking when it came to constitutionalism
and ethics: El constructivismo ético (1989); La constitución de la democracia deliberativa
(1996); Ética y Derechos humanos (1984); Fundamentos de Derecho Constitucional
(1992). This ethical tendency in constitutionalism was described by Danilo Zolo: D.
ZOLO, Teoria e critica dello Stato di diritto, in Lo Stato..., Costa & Zolo (eds.), cit., p. 18
f. 3.
which served as a reaction against legal positivism and the extreme-

politicization of society.
In this context, the concept of Estado de Derecho entered a
new phase of resemantization. In the first stage of the recovery of
democracy, as recalled by a key witness, the concept expressed « the
most common conciliatory argument [which] consisted in that the
military could have achieved the same goals through summary trials
and public death sentences according to laws authorizing such
procedures » (89). This definition was nothing but a synthesis of the
« theory of the two demons ». However, we must not forget the
strategic use of the concept linked to the image of the two demons,
which was back then deeply engrained in society. It is still possible
to see that a very clever strategy for criticizing the military powers,
which were still putting weak democracy at risk, is there. This initial
moment lasted until the trial of « Juntas Militares ». This juridical
act, with its subsequent symbolic overlay, radically modified the
semantic structure of the concept.
The second moment can be only recaptured from an image
that served as a re-foundational mythos of Argentina’s democracy.
As Vezzetti stated, « certain scenes condense a historical plot. [...]
These scenes have a mythological character and therefore sustain a
weft of beliefs » (90). This historical plot was precisely condensed by
the image of the legal prosecution of dictators by a court of law,
which judged them according to the law and gave them all of the
guarantees afforded by the constitution. The trial represented two
historical experiences divided by a thin line of a then still fragile
democracy. The obscure experience of crimes against humanity
confronted the « universal moral » in the courtroom; one belonged
to the recent past, and the other to a hopeful future (91).
This image was linguistically represented as the triumph of the
Estado de Derecho over the Terrorismo de Estado (state terrorism).
While neither of these concepts could be clearly formulated, they
(89) C.S. NINO, Juicio al mal absoluto, Buenos Aires, Ariel, 2006, p. 198. The
concept was used by President Alfonsín in his speech at the reception of the CONADEP
report (September 20th, 1984).
(90) VEZZETTI, Pasado y presente..., cit., p. 16.
(91) VEZZETTI, El juicio..., cit., p. 5.
served as a denial of their counter-pair synthesized in a powerful

emotional image. In this way, the emotional significance of this
experience — almost impossible to describe — was immediately
linked to the concept, and a whole set of new signifiers was
incorporated into it. Estado de Derecho became an emotional signi-
fier encompassing a variety of positive concepts, such as « demo-
cracy », « constitutional legitimacy », « human rights », « political
participation », etc. (92). The emotional meaning also expanded its
power to contain a whole set of counter-concepts, such as « dicta-
torship », which became equivalent to « state terrorism ».
From that period onwards, the Estado de Derecho became a
condensation of the new political language of the democratization
process, and this can be observed by the Supreme Court’s use of the
concept. In contrast to the experience of the past — when the
Supreme Court utilized this concept in a positivist manner — since
the 1980s, the concept has been increasingly used, almost exclusively
in cases involving crimes against humanity. The emotional semantics
tied to the concept helped further its expansion and consolidation
within the legal field. A paradigmatic example synthesizing this new
meaning can be seen in a work published by the Federación Argen-
tina de Colegios de Abogados in 2007 entitled: Los Abogados, el
Estado de Derecho y los Derechos Humanos. It is quite remarkable
that this emotional concept was not introduced in the new Consti-
tution of 1994 (93).
Now, since the sanctioning of the new Constitution, there has
been a renewal of positivist interest in the constitutional interpreta-
tion. Constitutionalists have chosen to provide descriptive com-
ments about every article, integrating above all the jurisprudence,
the comparative perspective regarding the Constitution of 1853,
comparative law, and so on. Meanwhile, the ethical problem of the
Constitution has found a home in the specialized fields of human
rights law, analytical philosophy, etc. To this day, the different
(92) In this context, the expression « imperio de la ley » also appeared; however,
it meant subjecting the « absolute power of the military » to constitutional-democratic
legality. See: B. SARLO, No retroceder, in « Punto de Vista », 30 (1987), p. 4.
(93) However, this concept was incorporated into two provincial constitutions:
in Santiago del Estero (2002) and in Tierra del Fuego (1991).
interpretative and methodological approaches within constitutional

law have maintained a kind of respectful synchrony — perhaps
owing to the potential risk of reducing some still very emotional and
historical concepts — like Estado de Derecho — to mere abstract
definitions.
3. Conceptual History and the Language of Constitutionalism in

Argentina.
In this article, the long history of the Estado de Derecho was
recovered (from its early critical reception in the 1930s up to the
emotional re-significance in the 1980s). That the variety of meanings
entailed by the concept were closely tied to the political events that
took place in Argentinean political history is easy to see. That should
not come as a surprise given the characteristics of constitutionalism
as a specific mixture of juridical and political languages. Never-
theless, in order to create a conscious approach to legal languages, it
is not enough to only speak about contexts. Therefore, the material
conditions for the production of those discourses permitted an
understanding of the process of professionalization of the language
of constitutionalism (from orality to legal reviews to the constitutio-
nal treaties). The variety of methodological approaches were also
considered at every single stage along the process of consolidating
the tradition. Above all since the formation of a determinate field
requires a specific grammar and conceptuality that establishes a way
of judging what belongs to the legal tradition and what is periphe-
rical to it (94).
From the perspective of legal methodology, the connection
between political experience and legal conceptuality becomes
clearer. In fact, each methodological tendency responded to the role
of law in a political context (outside the scientific field), and it also
established the conditions for the possibility (and the limits) of
constituting the various senses of the concepts inside the internal
order of discourse. The changes in methodological perspectives
determined how constitutional law should be thought about and
(94) P. BOURDIEU, Le champ scientifique, in « Actes de la recherche en sciences

sociales », 2 (1976), pp. 88-104.
written, so it is not only connected with the internal analysis of

concepts but also (and primarily) with the inclusion/exclusion cri-
teria that allowed for the social construction of a determined
scientific field as well as the establishment of a tradition.
Going back to the concept of Estado de Derecho, the histori-
cization of the concept, through the history of the language of
constitutionalism, demonstrated the variations of its meaning, and
therefore, this insight can help to understand the political role of the
concept at different periods in time, which can only be accom-
plished by bracketing out the emotiveness that it currently harbors
(Verfremdungseffekt). It is precisely this recognition of the varied
layers of meaning incorporated into the concept that allow it to deal
with historical analysis. In a radical sense, it can be asked: What did
an Argentinean jurist in the 1940s understand the term Estado de
Derecho to mean? Its meaning was not only quite different from our
contemporary usage, it was also a word utterly foreign to his
vocabulary. This conceptual consciousness would help to confront
the traditional constitutional history that judges past experiences
from the perspective of abstract models constructed in the present.
By disrupting the security this concept offers to the narrative of
constitutional history — written by constitutionalists — not only are
the anachronisms exposed, but more important, the prejudices on
which a tradition is built can be recognized (95).
The historical-conceptual approach is able to show more than
just the « inner meaning of concepts » in history. Once it focuses on
the treatment of temporalization (Verzeitlichung), it can open up
new possibilities for criticizing contemporary uses. For example, in
the 1940s, some jurists declared that the Estado de Derecho (assimi-
lated to the liberal State) had come to an end. As such, the horizon
of expectation was guided by other counter-concepts, such as the
« welfare state ». In the 1980s, the very same concept defined
another temporalization of social experience. Against the traumatic
past experience of Terrorismo de Estado, the Estado de Derecho
(95) H-G. GADAMER, Verdad y método, Salamanca, ed. Sígueme, 2012, pp. 344;
J. TONTTI, Tradición, Interpretación y derecho, in La relevancia del derecho. Ensayos de
filosofía jurídica, moral y política, P. Navarro and M.C. Redondo (eds.), Barcelona,
Gedisa, 2002, p. 118.
gained a significant new role as a concept oriented toward the

future. This temporalization found its way into the concept through
the association with democracy, and therefore, the demand for more
Estado de Derecho became a fight for having a more democratic and
peaceful society.
Coming back to the present, there has been in Argentina
recently a dangerous social prejudice against the politics of « human
rights and memory ». Some political actors have claimed that the
Estado de Derecho has already been achieved. Therefore, any criti-
cism against the government is an attack on Estado de Derecho. This
new tendency shows that the concept has been used as a way of
sustaining the political status quo by recurring to an emotional
concept. In fact, the new counter-concept that appears against the
backdrop of this new pragmatic used is « destabilization ». In this
new clime of ideas, the emotional bond between the concept and the
democratization process of the 1980s has started to erode.
The new usage has also changed the internal temporalization
of the concept, by inverting its previous role as a progressive concept
to a more conservative one. In fact, this process opens the gates to
an institutional semanticization describing the concept as a para-
digm of protection of the new form of political order. Perhaps all of
these modifications of the political language are symptoms of a
changing era.
In the case of constitutionalism, the renewed positivist and
ethical approaches have convived till now; however, as it is easy to
see in the academic milieu, their languages are becoming more and
more removed from one another.
The radical criticism of conceptual history is able to confront
this problem by simply asking about the meaning of this concept in
the present. As this analysis has shown, jurists usually just reproduce
the meaning and the historical reconstruction provided by the
tradition in which they dwell. The radical question would be: What
are the conditions for the possibility (political, methodological, etc.)
of a changing the meaning of this concept in the present day and
age? Are there new concepts that contradict the Estado de Derecho?
Are we facing a restructuration of political and juridical languages?
If so, it would be important to take concepts a little more seriously.

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QUADERNI FIORENTINI

per la storia del pensiero giuridico moderno

THE CONCEPT OF ESTADO DE DERECHO

1. Between Law and History: The Problematic Concept of Estado de Derecho. —

1. Between Law and History: The Problematic Concept of Estado

(1) H. MOHNHAUPT, Zur Geschichte des Rechtsstaats in Deutschland. Begriff und

perspective of rhetoric, we clearly see that the mere mention of this

Paradoxically, all of them can be translated into English as « rule of

(3) B. CLAVERO, Happy Constitution. Cultura y lengua constitucionales, Madrid,

with the Anglo-Saxon « rule of law », or is it a combination of

2. From Traditional Dogmatic History to the Conceptual History

(6) MOHNHAUPT, Zur Geschichte des Rechtsstaats, cit., p. 39.

(8) Q. SKINNER, Meaning and Understanding in the History of Ideas, in « History

2.1. From the American to the Argentinean Tradition: Repu-

When the language of Argentinean constitutionalism was first

change in meaning of the term republic also represented an inver-

duals acting in a self-regulative market without interference by the

(18) J.M. PORTILLO VALDÉS, Entre la historia y la economía política: orígenes de la

tory (21). In this second stage, albeit still linguistically linked to

(21) J.C. CHIARAMONTE, El mito de los orígenes en la historiografía latinoameri-

The characteristic of the republic, shifted by the concept of

2.2. The Catholic Staat and the Critical Reception of the

posed a hierarchical model of order — if not also corporatist — that

positivism, which asked about the logical condition of the sollen,

(43) SAMPAY, Noción..., cit., p. 67.

Rechtsstaat meant with a critical reception; in fact, this concept was

only attacked favoritism by a « corporate state » to the Portuguese — a question that

modification (53). Having observed this modifiability, Sampay stated

legitimizing the political decision and the internal characteristics of

formation of a new anthropological perspective. This time, against

radical politicization of the population (63). This process of politi-

2.3. The Estado de Derecho under the Legal Positivism and

(63) It was not clear whether politics was to be considered as equivalent to or

(65) D. PÉREZ GUILHOU, Los liberales conservadores en la Convención Consti-

porated some elements of American political science as its theore-

(67) M. FIORAVANTI, Le dottrine della costituzione in senso materiale, in « Histo-

given to the concept, it is necessary to analyze the epistemological

the object of study as the problem of power in society (72). This

postulate that the concept of the Estado de Derecho found a place in

nistration: legal regulation and judicial control; 4) fundamental

The abstract formulation and the theoretical un-definition of

Derecho ». See A. GORDILLO, Estructuración dogmática del Estado de Derecho, Lecciones

evidence the proliferation of the new concept among jurists of the

2.4. The Limits of Dogmatic Positivism: Human Rights and

(84) Nunca Más. Informe de la Comisión Nacional sobre la desaparición de

ethical questions into the legal debate. Indeed, the constitutional

(86) C. ALTAMIRANO, Sobre el juicio a las juntas militares, in « Punto de Vista »,

which served as a reaction against legal positivism and the extreme-

served as a denial of their counter-pair synthesized in a powerful

interpretative and methodological approaches within constitutional

3. Conceptual History and the Language of Constitutionalism in

(94) P. BOURDIEU, Le champ scientifique, in « Actes de la recherche en sciences

written, so it is not only connected with the internal analysis of

gained a significant new role as a concept oriented toward the

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