The Rule of Law Over the Law of Rulers: The Treatment of De Facto Laws in Argentina
Fordham International Law Journal
Copyright c 1995 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
The Rule of Law Over the Law of Rulers: The
Treatment of De Facto Laws in Argentina
This Note argues that Argentina’s acceptance of de facto laws, regardless of their nature,
hinders the transition to democracy, a factor that outweighs considerations for the public’s
expectations of rights vested by de facto laws. Part I analyzes Argentina’s political history, particularly the
nation’s experiences with constitutional and de facto governments. Part I also offers a synopsis on
how the Argentine Supreme Court has treated de facto laws throughout the Republic’s history. Part
II presents arguments supporting the legitimacy of de facto laws and the need to protect
expectations based upon them. Part II also examines arguments positing that de facto laws are illegitimate
because of their source and that acceptance of them would create a dangerous precedent. Part III
argues that the legitimization of de facto laws by express or tacit congressional ratification as set
forth in Aramayo offers the best solution as it both protects the rule of law and legitimate
expectations based upon de facto laws while helping to create foundations for democratic institutions
in Argentina. This Note concludes that Argentina’s existing treatment of de facto laws as
legitimate endangers Argentina’s transition to democracy, especially, the creation of strong democratic
In 1983, constitutional1 and democratic government 2
returned to Argentina. 3 During the seven year absence of
constitutional and democratic government from 1976 to 1983, a defacto
government, 4 a government that rules by force rather than by
constitutional right,5 ruled the country. 6 This de facto
government seized power in a coup d'etat,7 a manner of succession not
enumerated in the Argentine Constitution.8 The defacto regime
* J.D. Candidate, 1997, Fordham University. The Author thanks MCI, the
Zaffaronis, and Dr. Gulco for financial and academic support.
1. K.C. WHEARE, MODERN CONSTITUTIONS 1-2 (2d prtg. 1966). A constitutional
government is a government that rules according to a selection of rules. Id. A
constitutional government need not be democratic. Id. at 4. A country that has a constitution
does not have a constitutional government if the government of that country
circumvents the constitution in its exercise of power. Id.
2. Ra6l R. Alfonsin, The Function of the JudicialPowerDuring the Transition, in THE
TRANSITION TO DEMOCRACY IN LATIN AMERICA: THE ROLE OF THEJUDICIARY 39, 41 (Irwin
P. Stotzky ed., 1993) [hereinafter TRANSITION TO DEMOCRACY]. A democracy is a
representative and participatory government that "encompasses a rule of law bound by the
central requisites of liberalism-a set of traditional civil and political rights that serve to
deter state action as well as permit economic, social, and cultural choices-commonly
referred to as 'human rights,' and which complements free and popular elections." Id.
3. Id. at 42.
4. J. Irizarry y Puente, The Nature and Powers of a "DeFacto" Government in Latin
America, 30 TUL. L. REv. 15, 25 (1955). A de facto government is a government that
.usurps power by force, in violation of established constitutional and legal forms of
secession, by deposing the lawful authorities and arrogating provincially all or some of
the functions of government." Id.
6. Alfonsin, supra note 2, at 42.
7. BLACK'S LAw DICTIONARY 351 (6th ed. 1990) [hereinafter BLACK]. A coup d'etat is
the overthrow of government by force. Id.
8. CONST. ARG. Unless otherwise noted, all references to the Argentine
Constitution will be to the Argentine Constitution of 1853 as updated by the Constituent
Assembly of 1994. All quotations to the Argentine Constitution are from translations found in
CONSTITUTIONS OF THE WORLD. CONSTITUTIONS OF THE WORLD: ARGENTINA 29 (Gisbert
H. Flanz ed., 1995) [hereinafter CONSTITUTIONS].
exercised the functions of government, enacted laws,9 issued
decrees, t1 regulated legislation,1 1 and gave judicial sentences 12 in
an authoritarian manner.1 3 Argentina has lived under five such
defacto governments this century. 14
The transition in 1983 from an authoritarian government to
a democracy1 5 sparked numerous questions in Argentina. 6 One
question asks how a constitutional and democratic government
should treat defacto laws, 17 the laws, decrees, and regulations of a
9. Godoy v. Universidad Nacional de La Plata, [1991-II] J.A. 455, 459 (1990). A
law is that which "must be obeyed and followed by its citizens subject to sanctions and
legal consequences." BLACK, supranote 7, at 884. According to the Argentine
Constitution, the legislature is the primary enactor of laws. CONsT. ARC. arts. 44-86. The defacto
government from 1976 to 1983 legislated itself into government with a defacto law. Acta
parael Procesode ReorganizacidnNacional, 36-B ANALES DE LEGISLACI6N ARGENTINA
[hereinafter A.D.L.A.] 1019 (1976). Defacto governments in Argentina have issued laws in an
array of areas, including taxation, judicial reform, penal law, and the Civil Code.
Irizarry y Puente, supra note 4, at 47-53.
10. Godoy, [1991-I1] J.A. at 459. A decree is a "an authoritative order having the
force of law." THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 344
(William Morris ed., 10th prtg. 1981). In Argentina, the executive may rule by decree in
situations of necessity and urgency. CONST. ARG. art. 99, cl.3. Examples of areas in
which Argentine de facto governments have issued decrees include the declaration of
war, labor regulation, rent control, and the prohibition of registering children's names
that are not in Spanish or are deemed ridiculous. Irizarry y Puente, supra note 4, at
11. Godoy, [1991-II] J.A. at 459. A regulation is a "rule or order having the force of
law issued by executive authority of government" that further defines a preexisting law.
BLACK, supra note 7, at 1286.
12. Goday, [1991-I] J.A. at 459.
13. Julie M. Taylor, Technocracy and NationalIdentity: Attitudes Toward Economic
Policy, inFROM MILITARY RULE TO LIBERAL DEMOCRACY IN ARGENTINA 131, 133-34 (Monica
Peralta-Ramos & Carlos H. Waisman eds., 1987) [hereinafter LIBERAL DEMOCRACY]. An
authoritarian government is one that rules in a totalitarian fashion and does not permit
input in decisions from those who do not hold power. Id.
14. DONALD B. HODGES, ARGENTINA'S "DIRT WAR": AN INTELLECTUAL BIOGRAPHY 9
. 15. Alejandro M. Garro, Nine Years of Transition to Democracy in Argentina: Partial
Failure or Qualified Success?, 31 COLUM. J. TRANSNAT'L L. 1, 4 (1993). A transition to
democracy is notjust a "mere return to government by consent, which is just one step
in a long-term movement towards the consolidation of a truly democratic regime," but
it is also an "on-going process involving gradual changes of social mentality or ethos, a
process that brings into question the relationship between actual operation of legal
institutions and the consolidation of democracy." Id.
16. Irwin P. Stotzky & Carlos S. Nino, The Difficulties of the Transition Process, in
TRANSITON TO DEMOCRACY, supra note 2, at 3, 3. Among the larger questions are how
to create strong democratic institutions, whether and how to prosecute for human
rights violations of defacto governments, how to achieve political and economic stability,
and how to ensure respect for the rule of law. Id.
17. Carlos S. Nino, On the Exercise ofjudicial Review in Argentina, in TRANSrrION TO
defacto government.1 8 If Argentina treats defacto laws as equal to
the laws of a de jure19 government, a government that rules by
constitutional right,20 Argentina might hamper its transition to
democracy. 2 1 By contrast, if the constitutional Government
voids de facto laws, the Argentine Government may jeopardize
the public's faith in the law and its expectations of rights vested
by de facto laws.2 2
This Note argues that Argentina's acceptance of de facto
laws, regardless of their nature, hinders the transition to
democracy, a factor that outweighs considerations for the public's
expectations of rights vested by defacto laws. Part I analyzes
Argentina's political history, particularly the nation's experiences with
constitutional and de facto governments. Part I also offers a
synopsis on how the Argentine Supreme Court has treated defacto
laws throughout the Republic's history. Part II presents
arguments supporting the legitimacy of defacto laws and the need to
protect expectations based upon them. Part II also examines
arguments positing that de facto laws are illegitimate because of
their source and that acceptance of them would create a
dangerous precedent. Part III argues that the legitimization of defacto
laws by express or tacit congressional ratification as set forth in
Aramayo23 offers the best solution as it both protects the rule of
law and legitimate expectations based upon de facto laws while
helping to create foundations for democratic institutions in
ArDEMOCRACY, supra note 2, at 309, 318. Defacto laws are the laws, rules, and decrees of de
facto governments. Id.
18. Jorge A. Sandro, iLeyes penales tdeitas 6 implicitas?, [1992-D] L.L. 82, 82-88
(1992); Nino, supranote 17, at 317-20; Enrique Vera Villalobos, Un "ObiterDictum"
inoportuno, [1991-11] J.A. 462, 462-67 (1991); Aristides H.M. Corti, Algunas reflexiones sobre
leyes defacto [sic] y derechos adquiridos, [1984-B] L.L. 970, 970-73 (1983). This problem
was evident before the military government transferred power. Carlos S. Nino, Una
nueva estrategiapara el tratamiento de las normas "de facto", [1983-D] L.L. 935, 935-46
(1983) (suggesting new approach to treatment of defacto laws and written prior to
restoration of democracy).
19. Godoy, [1991-1I] at 458. A de jure government is a constitutional government.
Id. A dejure government "assumes political power through an election or appointment,
in accordance with existing constitutional and legal requirements of form and
substance, and discharges its public functions in conformity with the law. It is, in a word, a
government of laws rather than of force." Puente, supra note 4, at 24.
20. Puente, supra note 4, at 24.
21. Gaggiamo c. Provincia de Santa Fe, [1992-D] L.L. 481, 488 (PetracchiJ.,
dissenting); Nino, supra note 17, at 317.
22. Gaggiamo, [1992-D] L.L. at 483-84.
23. Aramayo, 306 Fallos 72, 73-74 (1984).
gentina. This Note concludes that Argentina's existing
treatment of de facto laws as legitimate endangers Argentina's
transition to democracy, especially, the creation of strong democratic
I. AUTHORITARIANISM AND CONSTITUTIONALISM IN
Argentina's authoritarian tendencies began with its
founding as a Spanish colony2 4 and survived both independence from
Spain25 and the creation of a Constitution. 26 Argentina's
authoritarianism has displayed itself frequently in the past seventy years
through coup d'etats that have led to military governments in
1930,27 1943,28 1955,29 1967,30 and 1976.31 During these past
seventy years, Argentina has alternated between constitutional and
authoritarian governments.3 2 Throughout this cycle of
authoritarian and constitutional governments, Argentina's Supreme
Court developed several standards for the treatment of de facto
25. CALVERT, supra note 24, at 17.
26. ROCK, supra note 24, at 160.
28. Id. at 202.
29. ROCK, supra note 24, at 318.
27. ROBERT A. POTASH, THE ARMY & POLITICS IN ARGENTINA, 1928-1945, at 283
(1969) [hereinafter POTASH (1928-1945)].
30. DEPARTMENT OF THE ARMY, ARGENTINA: A COUNTRY STUDY 60 (13th ed. 1st.
prtg. 1986) [hereinafter ARMY STUDY]
33. See Nino, supra note 17, at 317-19 (offering analysis of treatment of defacto laws
from 1860's to present); Vera Villalobos, supra note 18, at 462-67 (highlighting
standards for treatment of defacto laws from 1930 to present); Corti, supra note 18, at
97073 (discussing treatment of defacto laws from 1930 to 1983).
A. Early PoliticalHistory andJudicial Treatment of Authoritarian
Regimes and Constitutional Government: 1516 - 1930.
Spain initially governed Argentina as a colony and in an
authoritarian manner.3 4 Although Argentina gained its
independence from Spain,3 5 this independence did not translate initially
into a drastic change in the form of government.3" In 1860,
Argentina united under a constitution" that established the form
of government that has continued until the present.3 8 As the
nation centralized government 39 and increased its economic
growth,4 ° the Government slowly became more democratic and
constitutional.4" By the early 1900's, Argentina enjoyed a
democratic and constitutional government. 42
The Spanish ruled Argentina and the rest of the Spanish
empire 43 in the Americas in a paternalistic manner, 4 ceding
lit34. CALVERT, supra note 24, at 14; Rosenn, supra note 24, at 22-23 (describing
Spanish rule as "paternalistic and absolutist"). Almost all government officials in the
Spanish colonies were from Spain. Rosenn, supra note 24, at 23. The only forms of
local representation were city and town councils that had little power or autonomy. Id.
43. P.E.H. Hair, Introduction to To DEFEND YOUR EMPIRE AND THE FAITH: ADVICE
OFFERED TO PHILIP, KING OF SPAIN AND PORTUGAL 1 (P.E.H. Hair ed. & trans., 1990).
tle control to the colonists.4 5 Spanish born officials stationed in
Latin America made most of the managerial and policy decisions
in the colonies.46 Spain discouraged dialogue over policy with
the colonists and the incorporation of local interests into
government decisions.4 7
During this period of authoritarian rule, Spain applied its
laws uniformly in its colonies regardless of regional
considerations.4 8 Rather than establishing colonies with stable legal
systems, Spain's foremost concern in its American colonies, includ-.
ing Argentina, was increasing its own wealth. 49 Because of
Argentina's distance from Spain,50 dearth of easily exploitable
mineral resources 5 1 and lack of native populations to force into
labor, 52 Argentina received comparatively little attention from its
The Spanish empire in the Americas stretched from Florida to the River Plate region to
tip of the South American continent. Id.
44. CALVERT, supra note 24, at 14. The Spanish Crown reviewed all appeals
originating in its American colonies and controlled the distribution of wealth within
those colonies. Id. The imperial government did not permit its colonies to make many
legal or economic decisions on their own. Id. The Spanish Government controlled the
entrance of foreigners into Argentina, how long they could stay, what property they
could own, and the practice of their religion. H.S. FERNS, THE ARGENTINE REPUBLIC 23
45. CALVERT, supra note 24, at 16.
46. Rosenn, supranote 24, at 23; see generally CALVERT, supranote 24, at 14-20
(illus.trating how colonial administrative structures helped entrench authoritarianism).
47. CALVERT, supra note 24, at 14-15.
48. Id. The Spanish Government was:
[U]niversalistic in its application [of laws] to the whole Empire disregarding
the needs or unique conditions of particular areas. Jurists and theologians in
Spain framed laws for colonies they had never visited. [Francisco J.] Moreno
wrote of this .... 'The geographic isolation of the new territories helped, if
anything, to preserve the unreality of Spanish law.' "
Id. (quoting FRANCISCO J. MORENO, LEGITIMACY AND STABILITY IN LATIN AMERICA: A
STUDY OF CHILEAN POLITICAL CULTURE 12 (1969)).
49. CALVERT, supranote 24, at 12; FERNS, supranote 44, at 12. Spain's interest in its
[W] ere controlled with the objective of providing an income for the leading
institution of Spain, The Crown of Castile. For five-sixths of Spanish imperial
history the interest of the Crown was conceived of narrowly in terms of the
royal share in the mining of silver and of the taxes on trade goods bought and
sold within the framework of an economy devoted principally to the
production of one commodity-silver.
50. CALVERT, supra note 24, at 15 (noting "isolation of the colonies, especially the
River Plate area, added to the problem of formalism (i.e., law being enacted but not
51. RocK, supra note 24, at 39.
52. Id. at 39-40.
colonial master.5 3 Consequently, Spain provided Argentina with
insufficient resources to enforce Spain's universal laws.54
Because Spain could only partially enforce its own laws55 and these
laws hampered Argentine trade, 56 Argentine merchants resorted
to smuggling to support themselves. As a result, the colonists
evaded the law, demonstrating a disrespect for the legal system
in Argentina.5 8
2. Independence and the Creation of the Argentine
Constitution: 1810 - 1860
The form and stability of Argentina's government did not
develop immediately following Argentine independence from
Spain.5 9 Only after internal disorder 60 and provincial rule
fragmented from the rest of the nation 6 did Argentina found a
Constitution 6 2 that has served as the framework of its government
53. Id. at 39 (noting that Spanish interest in Americas was limited to "the twin
quests for precious metals and Indians. Because the River Plate had neither in any
abundance, throughout [the colonial] period, it commanded little significance."). It
was only in 1776 that Spain created the viceroyalty of the River Plate of which Buenos
Aires was the capital. Id. at 40. Prior to 1776, the viceroyalty of Peru governed
54. CALVERT, supra note 24, at 15.
56. Id.; FERNS, supra note 44, at 16. Until 1778, the Spanish Crown strictly
regulated what cities Argentina could trade with. Id. It was only in 1778 that the imperial
government first permitted Argentina to trade directly with any city within the Spanish
empire. Id. After 1778, the imperial government still forbid Argentina to trade with
any port outside of the Spanish Empire. Id. at 17.
57. CALVERT, supra note 24, at 15. Smuggling resulted from Spain's inability to
enforce its laws. Id. In Argentina, "[v] iolation [of Spanish laws] was to be expected if
Spain did not apply coercion to enforce the law, and Spain did not have enough
coercive power to apply in such a massive empire." Id. See ROCK, supranote 24, at 30-32,
4043 (discussing growth and importance of contraband trade in River Plate towns); see
also FERNS, supra note 44, at 17 (discussing impact of trade liberalization laws as
eliminating impetus to smuggle).
58. CALVERT, supranote 24, at 15-17. "[T]he most obvious and direct consequence
of the colonial administrative structure and functioning was the development of
unworkable laws and formalistic attitudes which encouraged evasion and corruption." Id.
59. Id. at 17.
60. RICARDO LEVENE, A HISTORY OF ARGENTINA 463 (James A. Robertson trans. &
61. PETER H. SMITH, POLITICS AND BEEF IN ARGENTINA: PATrERNS OF CHANGE AND
CONFLICT 11 (1969); ROCK, supra note 24, at 101-04. After Argentina's independence,
regional loyalties took precedent over national interests. SMITH, supra, at 11.
62. CONST. ARG.
until the present day.6 3 The Constitution defines a federal
framework of government ' between the provinces 65 of
Argentina and the Federal Government.66 The Federal Government
includes an Executive Branch headed by a president,6 7 a
Legislative Branch 68 composed of a Chamber of Deputies of the
Nation6 9 and a Senate,7" and a Judicial Branch7" with its highest
court the Supreme Court of Justice of the Nation ("Supreme
Court" or "Court").72 In addition to the framework of govern-.
ment, the Argentine Constitution establishes constitutional
guarantees for individuals.7"
Argentina began its independence movement from Spain in
18101 and declared its independence in 1816. 71 The overthrow
of the colonial power did not destroy the authoritarian
framework of government in Argentina.7 6 Most of the Argentine
elite 7 7 responsible for independence were not concerned with
implementing social changes, 78 but wanted to seize control of
government for their own benefit. 79 Two early attempts to agree
upon the structure of government in written constitutions failed
in the face of internal struggles between the Federalists,8 °
provincial forces that wanted to create a federation, 81 and
Unitarist 82 forces centered in Buenos Aires that wanted a
republic.83 These failures resulted in a decentralized government8 4
characterized by the regional authoritarian rule of caudillos8 5
All the Argentine provinces, excluding Buenos Aires,8 6
tempted to create a national government by ratifying the
Constitution of 1853.87 Problems immediately followed the founding
of the Constitution of 1853 ("Argentine Constitution" or
"Constitution").88 Buenos Aires resisted incorporation with the rest
of the provinces and did not adopt the Constitution until 1860,
shortly before the battle of Pav6n.8 9 At the Battle of Pav6n in
1861,90 the province of Buenos Aires, under General Mitre9"
defeated the Federalist forces.9 2 Following the -battle of Pav6n,
General Mitre set up a defacto government that lasted from 1861
until his election as president in 1862." 3
b. The Constitution
The founders94 of the Argentine Constitution95 structured it
Buenos Aires and the revenue generated from its port. ARMY STUDY, supra note 30, at
87. ROCK, supra note 24, at 121. The Government of Buenos Aires refused to
participate in the planning of the new Constitution. ARMY STUDY, supra note 30, at 30.
88. ROCK, supra note 24, at 121.
after the U.S. Constitution.9 6 Like the U.S. Constitution, 97 the
Argentine Constitution establishes the National Government
within a federal framework.9 8 A central principle of both the
U.S. and Argentine frameworks is the separation of powers9 9
between the different federal branches of government. 0 0 While
the basic frameworks of the U.S. and Argentine constitutions are
the same, the details differ."0 ' Argentina's Federal Government
is composed of three primary branches,10 2 an Executive
Branch 0 3 led by the president,10 4 a Legislative Branch 0 5
composed of a Senate01 6 and a Chamber of Deputies of the
Na96. Rosenn, supra note 24, at 24; Linares Quintana, supra note 94, at 643, 645;
Garay, supra note 95, at 161.
97. Linares Quintana, supra note 94, at 645.
98. CONST. ARc. art. 1; see Linares Quintana, supra note 94, at 649-54 (describing
relation between Federal Government and provinces). Argentina presently has 23
provinces. Bonasegna, supra note 65, at 13. Like the states in the United States, the
provinces have surrendered some of their sovereignty to the federal government. Linares
Quintana, supranote 94, at 650; see CONST. ARG. arts. 77, 99 (listing powers granted to
Federal Government). The Constitution states that the "Provinces retain all powers not
delegated by the Constitution to the Federal Government and those expressly reserved
by special covenants at the time of their incorporation." CONST. ARG. art. 121.
99. GERMAN BIDART CAMPOS, TRATADO ELEMENTAL DE DERECHO CONSTITUCIONAL
ARGENTINO 17 (1993) [hereinafter DERECHO CONSTITUCIONAL]. The separation of
powers principle calls for different branches of government to have different governmental
functions as a means of ensuring that no one branch can assume control over the other
branches and, thus, all state functions. Id.
100. Id.; GABRIEL NEGRETTO, EL PROBLEMA DE LA EMERGENCIA EN EL SISTEMA
CONSTITUCIONAL 54 (1994); Linares Quintana, supranote 94, at 654 (calling principle of
separation of powers "backbone" of U.S. and Argentine Constitutions).
101. Liniares Quintana, supra note 94, at 643, 645; Garay, supra note 95, at 161.
102. CONST. AG. art. 120. The Constituent Assembly of 1994 added a fourth
independent branch by separating the office of the Public Ministry from the other
branches. CONSTITUTIONS, supra note 8, at xii.
103. CONST. ARG. arts. 87-107 (establishing Executive Power). The Executive
Branch traditionally has had preeminence over the other two branches. Linares
Quintana, supra note 94, at 654; see ConstitutionalReform, supra note 83, at 640-41
(discussing "hyper-presidentialism" in Argentine political structure).
104. CONST. ARO. art. 87; see id. art. 99 (outlining presidential powers). The
president is elected by the direct vote of the eligible Argentine population. Id. art. 94. The
President serves a four-year term and may be consecutively re-elected to office once. Id.
art. 90. Until 1994, the president served a six-year term, but was not eligible for
consecutive re-election. CONSTITUTIONS, supra note 8, at xii.
105. CONST. ARG. arts. 44-86 (detailing powers of Legislative Branch).
Traditionally, the Legislative Branch has not been a powerful branch of government. Linares
Quintana, supra note 94, at 655-56. The strength of the Executive Branch came at the
expense of the Legislative Branch. Id.
106. CONST. ARG. art. 44. The Senate is composed of three senators from each
province, one of whom must be from the political party receiving the second highest
percentage of the vote. Id. art. 54. Senators sit for a term of six years. Id. art 55.
tion, "' and a Judicial °8 Branch with the Supreme Court of
Justice as its highest court.1" 9 The Argentine Constitution also
restricts the power of the Argentine Government by enumerating
guarantees against governmental abuse of individuals." 0
i. The Executive
The Argentine Constitution vests the executive"' with an
array of powers. 1 2 The president is the commander-in-chief of
the nation's armed forces.1 13 The president nominates Supreme
CourtJustices1 1 4 for the Senate's confirmation."' The president
may approve 1 6 or veto a congressional bill. 1 7 The president
executes legislation. 1 8 During exceptional circumstances, 19 the
president is able to enact legislation through decrees of "urgency
and necessity." 120 The president may also declare Federal
intervention in a province, allowing the Federal Government to
Under penalty of the same being absolutely and irredeemably void, the
Executive Power may in no case make dispositions of a legislative character.
Only when exceptional circumstances make it impossible to follow the
regular arrangements which this Constitution provides for passing laws and
when it is not a matter of rules regulating penal, tax, or electoral matters or
pose provincial governments and assumes their responsibilities
and powers.1 2 ' The president may declare a state of emergency
in the entire nation or certain provinces, 2 2 during which time
the government may suspend constitutional guarantees. 123
ii. The Legislative Branch
The Argentine legislature 12 4 is composed of a Senate 125 and
a Chamber of Deputies. 126 While in certain exceptional
circumstances the executive enacts legislation by decree, 12 7 the
legislature enacts most laws.1 28 By a two-thirds majority, Congress may
call a Constituent Assembly to reform all or part of the
Constitution. 12 9 Also by a two-thirds majority, the Senate may approve of
the president's nomination of a Supreme Court Justice, 13 and
the system of political parties, may he dictate decrees for reasons of necessity
Id. The Constitutional Constituent Assembly of 1994 added the power to legislate
by decree in situations of urgency and necessity to the Constitution. CONsTrrUTIONS,
supra note 8, at 49. Presidents since the founding of the Constitution, however, have
used executive decrees to legislate. VERBITSKY, supra note 119, at 164 . As recently as
1990, the Supreme Court upheld the use of such decrees. Peralta c. Estado Nacional,
[1991-C] L.L. 173, 186 (1990).
121. CONST. ARG. art. 99, cl. 20; Garro, supra note 15, at 88 (discussing president
intervening in provinces).
122. Id. art. 99, cl. 16. Article 99, clause 16, sets forth the conditions under which
the president may declare a state of siege. Id. Article 99, clause 16, states that, with the
consent of the Senate, the president may declare "one or more districts of the Nation in
a state of siege for a limited period in the event of a foreign attack. In the event of
internal disorder, he has this power only when Congress is in recess, since this is a
power belonging to that body." Id.
123. Id. art. 23. Article 23 states, "[iln the event of internal disorder or foreign
attack endangering the operation of this Constitution and of the authorities created
thereby, the Province or territory in which the disturbance of order exists shall be
declared in a state of siege and the constitutional guarantees shall be suspended therein."
124. Id. arts. 44-86.
125. Id. art. 44; see supra note 106 (describing nature of Senate).
126. CONsT. ARG. art 44; see supra note 107 (describing nature of deputies).
127. CONST. ARG. art. 99, cl. 3; see supra notes 119-20 and accompanying text
(describing executive legislation by decree).
128. CONST. ARc. arts. 77-83. Article 77 enumerates the areas in which Congress
may legislate. Id. art. 77. A bill originates in either the Senate or the Chamber of
Deputies. Id. After being approved by a simple majority of both Chambers of
Congress, Congress sends the bill for presidential approval. Id. art. 78. If the president
approves the bill, it becomes law. Id. If the president rejects the bill, it returns to
Congress where both the Senate and the Chamber of Deputies may override the
president by a two-thirds majority in each Chamber. Id. art. 83.
129. Id. art. 30.
130. Id. art. 99, cl. 4.
the Senate may remove from office the president1 31 or Supreme
Court Justices 132 who the Chamber of Deputies have impeached
for malfeasance or a common crime.13 3
iii. The Judicial Branch
Argentina's constitutional founders based the Argentine
judicial system upon the Anglo-American judicial tradition."5 4 The
head of the judiciary is the Supreme Court,13 5 which has inferior
courts beneath it.13 6 The Supreme Court possesses the power of
judicial review,1 37 but only in judicial cases, controversies, and
suits between parties.13 8 The precedent of these rulings
influ.ences later cases before the Supreme Court1 3 9 and the lower
courts. 14 0 A case of a political nature 141 is non-justiciable."4'
141. Alejandro M. Garro, The Role of the ArgentineJudiciaryin the Transition to
Democracy, 4 HuM. RTS. L.J. 311, 327 (1983) [hereinafter ArgentineJudiciary]. A political
question is one that would bring two branches of government into conflict. Id. Political
questions are questions "which courts will refuse to take cognizance, or to decide, on
account of their purely political character or because their determination would involve
an encroachment upon the executive or legislative powers." BLACK, supra note 7, at
While the Constitution does not establish the number ofJustices,
it does guarantee Justices life tenure which is revocable by the
Senate only for malfeasance or criminal conduct.' 4
iv. Constitutional Guarantees
The Federal Government may not intrude upon liberties
guaranteed by the Argentine Constitution.' 4 4 Amongst these
liberties are freedom of the press, 4 5 the right to unionize and
strike,' 4 6 the inviolability of the home, 4 7 the right to trial in
front of ajudge, 148 and the right to property, 149 including vested
rights. 5 ' The State, however, may temporarily suspended some
of these constitutional guarantees1 5 1 during a state of siege. 15 2
3. ConstitutionalRule: 1861 - 1930
By 1860, every province had ratified the Argentine
Constitution. 153 National adoption of the Constitution, however, did not
immediately create national unity.1 54 Rather, the fragmentation
of the provinces from the National Government 55 did not end
until the 1880's, when Argentina was firmly under the control of
a stable centralized government.1 56
by a new law or decision, divest one of a property right once it has been acquired under
previous legislation."]) (translation in BIDART CAMPOS, supra note 142, at 520).
151. CONST. ARc. art. 23. All guarantees can be suspended save those that lead to
the unconstitutional arrest or forced internal transport of citizens, unless the
Government first gives them the opportunity to leave the nation. Id.
152. Id. art. 23; see supranotes 122-23 and accompanying text (describing how
Executive or Congress declares state of siege). A state of siege isan emergency provision
that reduces the liberties that the state must respect. Kartheiser, supra note 31, at 245,
251-52. Between 1930 and 1983 there were 15 states of siege, the longest of which
lasted from 1974 to 1983. Id. at 252 n.37.
The Argentine Supreme Court defined the scope, object, and length of states of
siege in Granada. Granada, [1986-B] L.L. 221, 245-49 (1985). The Court's
interpretation of the scope, object and length of a state of siege in Granada was narrow.
Kartheiser, supra note 31, at 252. The U.S. Supreme Court has approved suspension of
constitutional guarantees, most notably President Lincoln's suspension of habeas corpus
during the U.S. Civil War. Ex parte Milligan, 4 Wall. 2, 125 (1866).
153. ARMY STUDY, supra note 30, at 31. All the provinces except Buenos Aires
ratified the Constitution in 1853. Id.; RoCK, supra note 24, at 121. The Province of Buenos
Aires was the last province to adopt the Constitution. Id. at 120.
154. YSABEL F. RENNIE, THE ARGENTINE REPUBLIC 110-20 (1945). The battle of
Pav6n occurred after every province ratified the Constitution. ARMY STUDY, supra note
30, at 31. For several years after the battle of Pav6n, there was a rebellion in the
northern provinces of Argentina. RENNIE, supra,at 110. Caudillos still controlled many
provinces, including a caudillo from the province of La Rioja who attacked other provinces.
Id. President Mitre wrote that bandits had taken over Province of La Rioja and that the
government there no longer existed. Id. at 112. In 1874. the national army invaded the
province of Entre Rios and fought against the militia of Entre Rios in order to wrest
control of the province from a regional caudillo. Id. at 118.
155. SMITH, supranote 61, at 11. The provincial powers often ignored the national
laws. Id. The national government often resorted to force to implement its control
over provinces. RocK, supra note 24, at 129. The Federal Government used force to
quell rebellions in northern provinces. RENNIE, supra note 154, at 110. In 1874, a
federal army from Buenos Aires invaded the province of Entre Rios to quash the rule of a
provincial leader. Id. at 118. Federal soldiers assassinated a caudiUofrom the province
La Rioja who attacked neighboring provinces and refused to cooperate with the Federal
Government. Id. at 111-14.
156. RocK, supra note 24, at 129. By the 1880's, caudillos ceased to be able to
disregard national law. Id. By 1880, the presence of the caudillos had diminished to
such a degree that their strength now lay in controlling regional elections rather than
the regions outright. Id.
While the four decades following the founding of the
Constitution witnessed the crystallization of the Argentine state,1 57
economic expansion,158 and social change," 9 little change
occurred in terms of participatory democracy. 6 ° . This gradually
changed as the ruling Conservative party' 6' replaced the
fraudulent elections in the 1890's62 with universal laws requiring male
suffrage for citizens by 1912,161 in an attempt to consolidate
political divisions within the Conservative party and to coopt and
preempt opposition."' The result changed not only how the
elections were held 65 but also who won them. 6 6 In the years
between 1916 and 1930, non-fraudulently elected Radical
Party1 67 presidents governed Argentina. 16
4. FirstJudicial Treatment of De Facto laws
facto laws in Martinez y Otero.169 Martinez sued for
damages on a law that Mitre's de facto Government 170 enacted
The Argentine Supreme Court first addressed the issue of de
claiming that Mitre's Government was not constitutionally
competent to enact binding laws. 71 The Court recognized the valid-.
ity of the laws of Mitre's Government, emphasizing the nation's
grave and unstable political situation and noting that Mitre
exercised national power and had the consent of the people in his
victory at Pav6n.' 7 2
The Court's decision to ascribe validity to
laws that had their origin outside of the Constitution became
known as the defacto doctrine.1 73
B. HistoricalCycle of De Facto Regimes and Constitutional
Since 1930, Argentina has been caught in a cycle of military
juntas followed by civilian governments. 174 Between 1930 and
1983, both military and civilian governments constrained the
participation of political parties.' 75 The military governments,
however, also infringed upon constitutional and democratic
innote 42, at 9. See generally ARMY STUDY, supra note 30, at 217-20 (discussing Radical Party
from its inception to 1985).
168. WHITAKER, supra note 42, at 48-49.
169. Martinez y Otero, 2 Fallos 127, 142-43 (1865).
170. See supra note 93 and accompanying text (describing Mitre's defacto
171. Martinezy Otero, 2 Fallos at 142.
172. Id.; see supra note 90-92 and accompanying text (presenting General Mitre's
victory at Pav6n). The Court stated that Mitre was a:
[A]utoridad competente para conocer y decidir en esa clase de asuntos, por
ser quien ejercia provisoriamente todos los poderes nacionales, despues de la
Batalla de Pavon, con el derecho de la revolucion triunfante y asentida por los
pueblos, y en virtud de los graves deberes que la victoria le imponia.
Martinez y Otero, 2 Fallos at 142-43 [[C]ompetent authority to understand and decide
this type of matter, because he was the person who provisionally exercised all of the
national powers after the Battle of Pav6n, with the right of the triumphant revolution,
assented to by the people, and in virtue of the grave duties that the victory imposed
upon him.] (translation by Note author).
173. Nino, supra note 17, at 317-18.
174. Stotzky, supra note 32, at 109-14. The longest military government lasted
from 1976 to 1983. Id. at 111-12. The last shift in government was from the military to
a democracy in 1983. Id. at 113-14.
175. Edward C. Epstein, Democracy inArentina, in THE NEw ARGENTINE DEMOCRACY
3, 4-13 (Edward C. Epstein ed., 1992) [hereinafter NEw DEMOCRACv].
fication to be either express or implicit."' 0
5. De Facto Doctrine Restored
After the expansion of the Argentine Supreme Court in
1990,351 the Court in Godoy3 5 2 advocated the restoration of the de
facto doctrine, the treatment of de facto laws as if they were
legislation that Congress itself had passed. 5 3 The Court restored the
de facto doctrine in Gaggiamo3.5 4 Consequently, Congress could
only repeal these laws, regardless of their dubious origin, and
could not strip anyone of a right that had already vested under
it.35 5 A minority on the Court still espoused maintaining the
previous standard, as expressed in Aramayo,3 56 of validity by
congressional ratification only.3 5 7
350. Soria, 307 Fallos at 343; Dufourq, 306 Fallos at 177; Aramayo, 306 Fallos at 74.
351. See supra notes 294-95 and accompanying text (explaining expansion of
352. Godoy, [1991-11] J.A. at 458.
353. Id.; Gaggiamo, [1992-D] L.L. at 483.
[C]omo fue especialmente destacado en el caso "Godoy", los actos de los
gobernantes de facto son vdlidos desde su origen, o bien deben considerarse
legitimados por su efectividad, de forma que la ley dictada por un gobierno
"de facto", "respecto con su validez", debe ser juzgada como si hubiese
emanado del propio Congreso o de la respectiva Legislatura.
Id. [[A]s was especially outlined in the case of Godoy, the acts of defacto governors are
valid from their origen, or, better yet, should be considered legitimate for their effect,
in such a form that a law dictated by a defacto government, "with respect to its validity,"
should judged as if it had come from Congress itself or the respective legislature.]
(translation by Note author). In Pignatoro,the Court stated that, in Godoy, "la validez o
legitimidad de los actos de los gobernantes de facto ha sido expresamente reconocida
por esta Corte." ["the validity, or legitimacy, of the acts of defacto governments have
been expressly recognized by this Court."] (translation by Note author). Pignatoro,
[1992-D] L.L. 82, 88 (1991).
355. Id. at 485. The Court held that a provincial Attorney General, who the
military government granted a privileged pension twelve days before the restoration of
democracy and whose pension the constitutional provincial legislature expressly rejected
within two months of returning to office, had a right to that pension because within
those two months his right to the pension had vested. Id.
356. Aramayo, 306 Fallos at 73-74; see supra notes 344-50 and accompanying text
(outlining Aramayo standard requiring express or tacit congressional ratification of de
357. Godoy, [1991-11] J.A. at 458 (Fayt, J., dissenting); Gaggiamo, [1992-D] L.L. at
485, (Belluscio, J., dissenting); Gaggiamo, [1992-D] L.L. at 486 (Fayt, J., dissenting);
Gaggiamo, [1992-D] L.L. at 488 (Petracchi, J. dissenting); see supra notes 344-50 and
accompanying text (describing Court's adoption of Aramayo standard).
D. ConstitutionalReform of 1994
The divergent interests of the Peronists and the Radical
party combined to generate constitutional reform in 1994.358
One of the reforms expressly prohibits the use of force to
suspend the Constitution and instantly nullifies the validity of all
acts towards that end."5 9 The Radical party wanted the reforms
to provide a larger voice for opposition parties so that the
majority party would have difficulty in controlling all branches of
government. 6 ° The Constitution now ensures that the party
receiving the second largest amount of votes in a province will send a
Senator to Congress. 361 The constitutional reform made the
Public Ministry a fourth independent branch of government.362
The Peronists were concerned with changing election laws and
allowing the President to serve two consecutive terms.36 3 As a
consequence of this change,3 64 Carlos Menem, a Peronist, won
re-election to a second presidency.363
II DE FACTO LAWS: ARE THEY LEGITIMATE?
In 1991, the Argentine Supreme Court reversed its position
on defacto laws and returned to the standard that treats defacto
laws as legitimate equals of de jure laws.3 66 Throughout
Argentine history, the Supreme Court Justices and scholars who
advocated the validity of defacto laws have argued for the acceptance
of defacto laws on the grounds that defacto governments are
legitimate, 36 7 other nations and international practice recognize the
legitimacy of defacto laws,3 68 and public expectations based on de
facto laws warrant fulfillment. 6 9 The Supreme Court Justices3 7 °
and scholars 7 ' who support requiring congressional ratification
of defacto laws argue that treating defacto laws as equal to dejure
laws ignores the illegitimacy of defacto governments. 72
A. Arguments Supporting Validity of De FactoLaws
Several scholars and Supreme Court Justices have defended
defacto laws on the grounds that defacto governments are
legitimate and that this legitimacy extends to their laws. 7 3 Others
find de facto laws valid because of foreign and international
doctrines3. 74 A different approach legitimizes de facto laws because
of the public's expectations that these laws are valid and because
of the potential consequences of what would happen if these
expectations were not met.3 75
como si hubiese emanado del propio Congreso." ["ought to be judged as if they had
come from Congress itself."] (translation by Note author)); see supranotes 351-55 and
accompanying text (discussing Supreme Court's restoration of de facto doctrine); see
supra notes 344-50 and accompanying text (describing previous standard for treatment
of defacto laws that required express or tacit congressional ratification).
367. Cassino, 270 Fallos at 485; Ferrocarril Oeste, 209 Fallos 274, 288-89 (1946);
Artandini, 208 Fallos at 186; Ziella, 209 Fallos at 27; 1930 Acordada 158 Fallos at 290;
Martinez y Otero, 2 Fallos at 142-43; Irizarry y Puente, supra note 4, at 71.
371. Alfonsin, supra note 2, at 42-43; VERBnTSKY, supra note 119, at 154-58; Snyder,
supra note 268, at 512.
372. Aramayo, 306 Fallos at 73-74 (describing democracy as return to constitutional
order); Gaggiamo, [1992-D] L.L. at 489 (Petracchi, J., dissenting); Alfonsin, supra note
2, at 42-43; VERBITSKY, supra note 119, at 154-58; Snyder, supra note 269, at 512.
373. Arlandini,208 Fallos at 186; Ziella, 209 Fallos at 27; FerrocarrilOeste, 209 Fallos
at 288-89; Cassino,270 Fallos at 485; 1930 Acordada 158 Fallos at 290; Martinezy Otero, 2
Fallos at 142-43; Irizarry y Puente, supra note 4, at 71.
374. 1943 Acordada, 196 Fallos at 6; 1930 Acordada, 158 Fallos at 290;
CONSTANTINEAU, supra note 368, at 3-6, 409.
375. Gaggiamo, [1992-D] L.L. at 483-84; Godoy, [1991-I] JA at 458-59.
DE FACTO LAWS !N ARGENTINA
1. The Government That Made Them
Supreme Court Justices and scholars have argued that if a de
facto government exercises power in a legitimate manner, then
its laws are on par with other legitimate governments. 3 76 Some
Justices have held that de facto governments are constitutionally
legitimate governments. 3 7 7 Some scholars have argued that,
regardless of whether defacto governments are constitutional, they
are legitimate because they exercise control over the nation. 7 8
a. Constitutionally Legitimate
On several occasions, the Argentine Supreme Court found
that defacto governments that pledged to uphold constitutional
guarantees had constitutionally legitimate powers.3 7 9 In the
Acordada of 1930,380 the Court stated that the combination of
exercising national power and affirming protection of
constitutional rights is a sufficient criterion for the Court to grant defacto
governments constitutional legitimacy.3 1l Further, in the
Acordada of 1930,32 the Court found for the first time that the
legitimacy of defacto governments was a nonjusticiable political
question.3 8 3 Between 1947 and 1973, the Court expanded its
definition of a de facto government's legitimate powers by finding
376. Cassino,270 Fallos at 485; Ziella, 209 Fallos at 27; FerrocarrilOeste, 209 Fallos at
288-89; Arlandini, 208 Fallos at 186; 1930 Acordada, 158 Fallos at 290; Martinezy Otero, 2
Fallos at 142-43; CONSTANTINEAU, supra note 368, at 3-6, 409; Irizarry y Puente, supra
note 4, at 71.
377. Cassino,270 Fallos at 485; Ziella, 209 Fallos at 27; FerrocarrilOeste, 209 Fallos at
288-89; Arlandini,208 Fallos at 186; 1930 Acordada, 158 Fallos at 290; Martinezy Otero, 2
Fallos at 142-43.
378. CONSTANTINEAU, supra note 368, at 3-6, 409; Irizarry y Puente, supranote 4, at
379. Cassino, 270 Fallos at 485; Ziella, 209 Fallos at 27; FerrocarrilOeste, 209 Fallos at
288; Arlandini, 208 Fallos at 186; 1930 Acordada, 158 Fallos at 290; Martinez y Otero, 2
Fallos at 143.
380. Martinezy Otero, 2 Fallos at 142.
381. 1930 Acordada, 158 Fallos at 290; see supra note 310
reasoning in 1930 Acordada)
382. 1930 Acordada, 158 Fallos at 290.
383. Id. The Court found that:
[E]li gobierno provisional que acaba de constituirse en el pais, es, pues, un
gobierno de facto cuyo titulo no puede ser judicialmente discutido con 6xito
por las personas en cuanto ejercita la funci6n administrativa y politica
derivada de su posesi6n de la fuerza como resorte de orden y de seguridad social.
Id. [the provisional government that has just finished establishing itself in the country
is, therefore, a defacto government that derived its possession of force as a means of
order and social security whose title cannot be judicially questioned by those for whom
that the Constitution grants de facto governments legislative, as
well as executive, powers3. 8 4 Consequently, the Court held that
questioning the legitimacy of a constitutional legislature was also
a non-justiciable political question beyond its jurisdiction. s 5
To strengthen the argument favoring the legitimacy of de
facto laws, several scholars pointed to the maintenance of
constitutional guarantees during defacto governments as evidence that
defacto governments have protected such guarantees in deeds as
well as words.3 8 6 The Court appointed by the military in 1955
created the right to amparo3. 8 7 During the de facto Government
of the late 1960's, the Court issued opinions that offered greater
protection for freedom of the press3. 8 8 In Timerman3 89 in 1979,
the Court limited the defacto Government's use of arbitrary
detention. 39 0 Each of these decisions, made during defacto
governments, limited the action of the defacto Government for the
protection of an individual's rights.3 9 '
the government exercises policy and administrative functions.] (translation by Note
author); 1943 Acordada, 196 Fallos at 6-7 (repeating verbatim previous holding).
At least one scholar argues that challenging the legitimacy of a defacto government
is not a non-justiciable political question. Puente, supranote 4, at 34-35. The argument
continues, however, that once the Court determines that the de facto government is
legitimate, any further questioning of the validity of its powers becomes a political
384. Cassino,270 Fallos at 485; Ziella, 209 Fallos at 27; FerrocarrilOeste, 209 Fallos at
288-89; Arlandini, 208 Fallos at 186.
385. Arlandini, 208 Fallos at 186. The Court in Arlandinistated, "en la medida en
que sea necesario legislar para gobernar un gobierno de hecho tiene facultades
legislativas, sin que la determinaci6n de esa necesidad... pueda serjudicialmente revisada."
Id. [to the extent that it is necessary to govern, a de facto government has legislative
abilities, without the determination of the necessity being... subject to judicial review.]
(translation by Note author). The Court repeated this holding several times. Cassino,
270 Fallos at 485; Ziella, 209 Fallos at 27; FerrocarrilOeste, 209 Fallos at 288-89.
386. BIDART CAMPOS,supra note 142, at 118; Kartheiser, supra note 31, at 251.
387. BIDART CAMPOS, supra note 142, at 118. Amaparo is the Argentine equivalent
of habeas corpus in the United States. See id. at 91-95 (describing amparo); see generally
LAW AND DEVELOPMENT, supra note 232, at 160-83 (detailing expansion of amparo in
388. Primera Plana, 138 L.L. 464, 479-81 (1970) (finding state of siege did not
deny newspaper right to amparo); Prensa Confidencial, 130 L.L. 456, 460-61 (1968)
(recognizing criticism of public officials as pillar of republican government); Sinchez
Sorondo ("Azul y Blanco"), 130 L.L. 450, 453-56 (1968) (recognizing criticism of public
officials as pillar of republican government).
389. Timerman, 301 Fallos 771, 779-83 (1979).
391. BIDART CAMPOS, supra note 142, at 118.
b. Legitimate Regardless of Constitution
At least one scholar argues that the goal of Argentina's
government should not be the maintenance of an alien
constitutional system, but, rather, the betterment of the state and its
individuals.3 9 2
The argument continues that this is particularly
true in Argentina, where Argentina's constitutional framework,
based upon foreign theories,3 9 3 does not take into account the
regional realities.3 9 4
The argument concludes that the best way
to achieve the betterment of the state in Latin America is
through the efficiency of defacto governments and that this abil-.
ity is the source of the legitimacy of defacto governments.3 9 5
2. Legitimacy of De Facto Laws in Other Countries
One line of argument posits that defacto laws are legitimate
because nations396 historically have recognized them as
legitimate. 9 7 In England, when the House of York 9 8 regained
con392. Irizarry y Puente, supra note 4, at 72.
393. See supra notes 94-101 and accompanying text, (describing foreign influence
on Argentine Constitution).
394. Irizarry y Puente, supra note 4, at 71-72; see Rosenn, supra note 24, at 24-25
(describing foreign influence on Argentine Constitution as detrimental to its success).
395. Irizarry y Puente, supra note 4, at 72. One scholar warns that it "bodes ill for
the Judiciary in any country to interfere unduly with [de facto governments] and to
attempt to find in the letter of an outmoded Constitution an effectual barrier against
political, economic or social progress." Id. The same scholar declares that defacto
governments are the best "instruments of progress and social amelioration, of renovation
and liberalism." Id.
396. CONSTANTINEAU, supra note 368, at 7-20 (describing defacto doctrines in
England, United States, and Canada). The Acordada's of 1930 and 1943 cite Constantineau
and also rely on unnamed international practices to support their legal recognition of
the defacto government. 1943 Acordada, 196 Fallos at 6-7; 1930 Acordada, 158 Fallos at
397. CONSrANTrIEAU,supra note 368, at 7. The U.S. Circuit Court of the District of
Virginia in Griffin's Case stated, in dictum, that unless defacto laws were recognized:
[T]here would be no security for life, or liberty, or property. It took form and
shape in a statute in the time of Edward as to the rights of a king de facto, but
its foundation was beyond that. Without the rights of de facto governments,
who would recognize the Norman tides against the Saxon barons? Who the
varying rights of York and Lancaster, or Tudor and Plantagenet, of king and
commonwealth, and kings again, of Stuart and Orange, or Stuart and
Brunswick? Where would you find your resting place in the history of civilization?
In the Roman Empire? In its Gothic conquerors? In the house of
Charlemagne?... When, where, and how would you base your rights dejure?
... The history of the world is the history of kingdoms and empires, and
civilizations de facto, becoming de jure, because they are de facto."
Griffin's Case, 11 F. Cas. 7, 18-19 (C.C.D.Va. 1869) (No. 5815).
trol of the monarchy from the House of Lancaster,3 9 9 the
English legislature passed a statute40 0 guaranteeing all rights granted
by the House of York as vested. 4 1 Likewise, French and Sicilian
governments held themselves liable for the acts of predecessor de
facto governments. 40 2 Furthermore, under customary
international law,40 3 when there is a change of government within a
state, the new government assumes the previous government's
treaties, contracts, and obligations regardless of the
tics of the previous government.
3. Their Existence Established Expectations:
The Rule of Law
The Court based its restoration of defacto laws on the
prem398. TERENCE WISE, THE WAR OF THE ROSES 6 (1983). The House of York was one
of the two principle parties in the War of the Roses, an English civil war that lasted from
1455 to 1485 and that brought about several changes of government. Id. at 5-6.
399. Id. The House of Lancaster opposed the House of York in the War of the
400. Edw. IV., c. 1, 3 Stat. 336 (1461) (U.K.). Even though the English legislature
expressly labeled the rule of the House of Lancaster as illegitimate, the legislature
reasoned that they would recognize the judicial and legislative acts of the House of
Lancaster as valid in order to eschew any "ambiguities, doubts, and diversities of opinions,
which may rise, ensue and be taken of and upon judicial acts, and exemplifications of
the same made or had in the time [of the kings of the House of Lancaster], late kings of
England successively in deed, and not of right." Id.
402. JOHN B. MOORE, DIGEST OF INTERNATIONAL LAW 249 (1906). Both countries,
however, limited their liability for the actions of the predecessor defacto governments to
U.S. claims. Id.
403. RESTATEMENT OF THE LAW (THIRD) § 102 cmts.(b), (d) (1987). Customary
international law is a rule of international law originating from either the repeated
practices of states or opinio juris, the belief of states as to what constitutes customary
international law. Id.; see generally BARRY E. CARTER & PHILLIP R. TRIMBLE,
INTERNATIONAL LAw 141-54 (1991) (explaining development and contemporary understanding
of customary international law).
404. Jackson v. People's Republic of China, 550 F. Supp. 869, 872 (N.D. Ala. 1982),
rev'd on other grounds, 596 F. Supp. 386 (1984), aff'd, 794 F.2d 1490 (11th Cir. 1986),
cert. denied, 480 U.S. 917 (1987) (holding acts creating debt in Imperial China to be
valid in both successor Republic of China and subsequent successor People's Republic
of China); Lehigh Valley R. Co. v. State of Russia, 21 F.2d 396, 401 (2d Cir. 1927). In
Lehigh Valley, the Second Circuit stated:
[C] hanges in the government or the internal policy of a state do not as a rule
affect its position in international law. A monarchy may be transformed into a
republic, or a republic into a monarchy; absolute principles may be
substituted for constitutional, or the reverse; but, though the government changes,
the nation remains, with rights and obligations unimpaired.
Lehigh Valley, 21 F.2d at 401 (quoting MOORE, supra note 402, at 249); see generally
CARTER & TRIMBLE, supra note 403, at 474-78 (discussing development of obligations of
successor governments under customary international law).
ise that the Argentine public would panic if they realized that
rights vested40 5 by de facto laws could be revoked if Congress
never expressly or tacitly ratified those de facto laws.406 The
Court first expressed this fear, in dictum, in Godoy.4 °7 The Court
used the dictum in Godoy for its reasoning in Gaggiamo4. °8
a. The Dictum in Godoy
In Godoy4 °9 a former teacher sued to be reinstated in his
job.4"' In dictum, a majority of the Supreme Court stated that a
change in the status of defacto laws would bring about an
uncertainty of whether a right that a defacto law granted was a vested
right and, therefore, one that a dejure legislature could not
revoke. 411 The Court feared that this uncertainty might lead to
mass havoc and confusion.41 2 The Court also stated that a lack
[Plarece imprescindible destacar que la vida social se veria seriamente
trastornada en ]a Argentina, si sus habitantes tomaran conciencia de que los
tribunales de justicia entienden que en el pais hay miles de leyes y varios
centenares de miles de decretos, actos administrativos, contratos ptiblicos y
sentencias, asi como numerosos tratados-provenientes de periodos defacto-que
s6lo tienen apariencia de tales, porque, en rigor, est~n viciados de ilegitimidad
y subsisten finicamente por una especie de condescendencia-discrecional y
revocable-de los actuales gobernantes de jure ... [C]omunicaria a todo el
sistema politico-social una imprevisibilidad y una incerteza que son
colindantes con la anarquia.
Id. [[I]t seems essential to point out that social life would be seriously distorted in
Argentina, if its inhabitants became aware that the courts believe that there are
of guidelines as to what constitutes implicit congressional
ratification of a defacto law would make an enormous amount of laws
passed by de facto governments potentially voidable upon the
whim of the de jure Government. 41 3 The Court noted that the
Aramayo standard41 4 of express or tacit ratification 4' 5 creates a
special category of rights that are not absolute, but subject to the
legislature's political leanings or whim.4 16 The Court in Godoy
stated that the uncertainty of expectations outweighs the benefit
of denying authority to defacto laws.4 17
b. The Holding in Gaggiamo
The Supreme Court took the dicta in Godoy418 concerning
the treatment of defacto laws and incorporated it into its holding
in Gaggiamo."19 During el proceso, Hect6r Gaggiamo was the
Atthousands of laws and various hundreds of thousands of decrees, administrative acts,
public contracts, and sentences-coming from periods of defacto governments-that only
have that appearence, because, strictly speaking, they are fouled by illegitimacy and
exist solely because they have a type of consent-discretional and revocable-of the
current de juregovernments.... [T]hat would bring to all of the social-political system an
unforeseeability and uncertainty that are bordering upon anarchy.] (translation by
413. Id. The number of laws vulnerable to abrogation is of particular concern in
Argentina where military governments have been in power for so much of the recent
history. Id. In Godoy, the Court puts that figure at 15 of the 25 years before the
decision. Id. The Court listed such things as employment, pension rights, and the
appointment of bishops as potentially voidable expectations that people have relied upon for
over a decade. Id.
414. Aramayo, 306 Fallos at 74; see supra notes 344-50 and accompanying text
(describing Aramayo standard of express or tacit ratification as sole means of validating
415. Aramayo, 306 Fallos at 74.
416. Godoy, [1991-I] J.A. at 459. The Supreme Court found that under the
Aramayo standard, "existiria la extrafia categoria de leyes, tratados y decretos
desprovistos de 'legitimidad' que, sin embargo, tendrian vidajuridica, aunque precaria y
ficilmente extinguible por decisi6n del Poder." Id. [there would exist the strange category
of laws, deals, and decrees devoid of 'legitimacy' that, nevertheless, would have judicial
life, although precariously and easily extinguishable by the decision of the State.]
(translation by Note author).
In Gaggiamo, the Court repeated its distrust of the Aramayo standard and the
category of laws it created that were dependent upon the legislature's acceptance of the
laws and labeled them "subjective" rights. Gaggiamo, [1992-D] L.L. at 484.
417. Godoy, [1991-I] J.A. at 459. The Court in Godoy stated, "[n]inguna doctrina
judicial es defendible si, en vez de asegurar el orden pfiblico, crea el riesgo de un
absoluto desorden." Id. ["[n] ojudicial doctrine is defendable if instead of assuring public
order, it creates the risk of an absolute disorder."] (translation by Note author).
418. Id. at 458.
419. Gaggiamo, [1992-D] L.L. at 483.
torney General 420 of the Province of Santa Fe.4 2 1 The provincial
de facto Government of Santa Fe granted Hect6r Gaggiamo a
privileged pension twelve days before the return of
constitu.tional rule.4 22 Less than two months after the return of
constitutional rule in Argentina, the de jure provincial Government of
Santa Fe passed a law voiding Gaggiamo's pension.4 23 Gaggiamo
sued for the restoration of his pension claiming that de jure law
violated Article 17 of the Constitution" 4 by denying him of
property in the form of a vested right.4 2 In a five 4 2 6 to three 42 7 deci-.
sion, the Supreme Court returned to the standard introduced in
Arlandin4i 28 of recognizing de facto laws as on par with de jure
ones.4 29 The majority based its reasoning upon the dictum in
B. Illegitimacy of De Facto Laws
Those in opposition to the legitimization of defacto laws
believe that de facto governments are not legitimate governments
because they came to power by force. 431 These scholars
andjustices distrust the judicial opinions that granted legitimacy to de
420. VERBITSKY, supra note 119, at 155. Hect6r Gaggiamo's official title in Spanish
is "Fiscal de Estado de Santa Fe." Id.
422. Id.; Gaggiamo, [1992-D] L.L. at 482.
423. Gaggiamo, [1992-D] L.L. at 482.
424. CONST. ARG. art. 17.
425. See supra notes 149-50 and accompanying text (explaining guarantees of'
vested rights under Article 17 of Argentine Constitution).
facto governments.43 2 Furthermore, they believe that a standard
of review for the legitimization of de facto laws exists, and that
this standard protects valid expectations without rewarding
1. De Facto Governments Are Illegitimate
Many scholars contest the proposition 43 4 that de facto
governments are the most efficient means of achieving the state's
goals or of determining what those goals are.4 33 They point out
that defining the goals of the state is not an easy task and that
democracy is a better tool for defining them than an
authoritarian state. 436 They add that even goals that are clear and
undisputed should not be brought about at the cost of
authoritarianism which would bring arbitrary goals and methods along with
The Supreme Court has taken the view that defacto
governments, by their very nature, are disruptions of constitutional
order.438 Scholars have echoed this sentiment.43 9 These scholars
have also pointed out a flaw in the criterion of the acordadaof
1930,440 that a defacto government must pledge respect for
constitutional guarantees, by contrasting the de facto governments'
stated intents of abiding by the Constitution and their actions. 44 1
Furthermore, commentators442 have questioned the
independence and constitutionality of the Court when it issued opinions
declaring de facto governments to be constitutionally legitimate
2. Precedence is Bad: De Facto Government's Usurped
Justices and scholars have questioned the independence of
the Supreme Court during defacto governments because de facto
governments interfered with the independence of the judiciary
and intimidated both judges and those seeking to use the legal
system.4 44 The military disrupted judicial continuity by replacing
Supreme Court Justices in 1955, 1966, and 1976.445 During el
proceso, the military government dismissed over thirty percent of
all federal judges.4 4 6 The defacto Government's appointment of
replacement judges did not conform with the procedure
established in the Constitution.4 4 7 The military forced the remaining
judges to pledge to uphold the military regime's validity as a
pre.requisite to staying in chambers. 44 The military also intimidated
judges, attorneys, and citizens with actual and threatened
physical violence. 449 The purpose of this intimidation was to prevent
governed alike." Id. at 508. The de facto Government's actions contradicted these
stated goals. Id.; see supranotes 267-71 and accompanying text (describing defacto
government's atrocities during el proceso).
442. Gaggiamo, [1992-D] L.L. at 490 (Petracchi, J., dissenting); PAGE, supra note
208, at 167; Alfonsin, supra note 2, at 44; Stotzky & Nino, supranote 16, at 12. Frankel,
supra note 432, at 28.
443. Gaggiamo, [1992-D] L.L. at 490 (Petrachhi, J., dissenting); Alfonsin, supra
note 2, at 44; Frankel, supra note 432, at 28; Stotzky & Nino, supra note 16, at 12; PAGE,
supra note 208, at 167.
444. Gaggiamo, [1992-D] L.L. at 490 (Petracchi,J., dissenting); Alfonsin, supranote
2, at 44; Frankel, supra note 432, at 28; Stotzky & Nino, supranote 16, at 12; NUNCA MAS,
supra note 177, at 387. The National Commission of the Disappeared reported that
during el proceso, "the judiciary became a sham jurisdictional structure, a cover to
protect its image," instead of being a "brake on the prevailing absolutism." Id.
445. Keith S. Rosenn, The Protection ofJudicialIndependence in Latin America, 19 U.
MiAMi INTER-Am. REv. L. 1, 26 (1987).
446. VERBrrsKv, supranote 119, at 19. Not only did the military junta replace
constitutionally appointed Supreme Court Justices with ones who would approve of the
junta's actions, but they replaced nearly a third of all the federal judges in Buenos Aires
and over 40% of those elsewhere in the country. Id.
447. NUNCA MAs, supra note 177, at 391.
448. Id.; Kartheiser, supra note 31, at 250.
449. NUNCA MAs, supra note 177, at 387 (describing intimidation ofjudiciary and
military pressure upon judges to uphold junta's acts). Id. at 412-20 (printing
such parties from using the legal system to hamper the junta's
3. Dissenting Judges in Gaggiamo and Godoy
In Gaggiamo,451 dissentingJustice Fayt4I52 used the argument,
espoused in the majority opinions in Godoy4 53 and Gaggiamo,4 54
of the public's uncertainty of what rights are vested, to counter
the conclusions in those opinions. 45 5 Like the majority in
Godoy45 6 and Gaggiamo4,5 7 Justice Fayt stressed that the public's
concern for the stability of vested rights is a priority, but added
that the most important vested right is governance by the
Constitution.458 His argument is not a case of one vested right
trumping another vested right, but, rather, of one vested right
preventing the creation of another.45 9 He argued that the guarantee of
constitutional order prevents a government of force from giving
birth to a vested right.460 Justice Fayt warned that accepting de
facto laws erodes the nation's belief in judicial security and poses
a threat to order.461
Several Supreme Court Justices and commentators
expressed their belief that the Aramayo standard4 62 sufficiently
protected expectations and provided a check against chaos.4 6 In
Gaggiamo,4" Justice Petracchi 465 stated that history did not
support the majority's fears of uncertainty in Godoy. 466 Justice
Petracchi points out that in the seven years that Congress had the
power to make de facto laws null and void ab initio, the dramatic
threats of anarchy mentioned in Godoy never appeared. 4 67
Commentators argue that while the Aramayo standard 46 8 was in place,
there was no mass fear for the validity of pensions, employment,
en la inseguridadjuridica y coloc6 el pais en situaciones limites de
desintegraci6n nacional. La Repfiblica se acostumbr6 . . . [a confiar] validez a las
normas [de facto] no por su origen yjusticia sino por la fuerza que los
sostenta, subordinando el derecho al poder.
Id. [This gradual inundation of coercive defacto rules in the institutional organization
and in the nation's judicial order, brings to the Argentine people a judicial insecurity
and places the country in situations that border national disintegration. The Republic
became accustomed ... [to conferring] validity to [defacto] rules, not because of their
origin or justice, but rather because force maintained them, subordinating law to
power.] (translation by Note author). In Pignatoro,Justice Fayt further warned about
the introduction of laws that originated outside of the constitutional system because of
their effect on judicial security. Pingatoro, [1992-D) L.L at 89.
462. Aramayo, 306 Fallos at 73-74; see supra notes 344-50 and accompanying text
(describing Aramayo standard requiring express or tacit congressional ratification of de
463. Godoy, [1991-I1] J.A. at 459 (Fayt, J., dissenting); Gaggiamo, [1992-D] L.L. at
485 (BelluscioJ., dissenting); Gaggiamo, [1992-D] L.L. at 486 (FaytJ., dissenting);
Gaggiamo, [1992-D] L.L. at 488 (Petracchi,J., dissenting); Nino, supra note 17, at 319; Vera
Villalobos, supra note 18, at 466-67.
464. Gaggiamo, [1992-D] L.L. at 488 (PetracchiJ., dissenting).
465. VERBITSKY, supra note 119, at 20. Justice Petracchi was one of the initial five
justices that Congress appointed to the Supreme Court after the restoration of
constitutional rule in 1983. Id.
466. Gaggiamo, [1992-D] L.L. at 490 (Petracchi, J., dissenting). Commentators
have repeated the view that experience does not support the majority's fear of public
panic over what rights are vested. Nino, supra note 17, at 319; Vera Villalobos, supra
note 18, at 466-67.
467. Gaggiamo, [1992-D] L.L. at 490 (Petracchi, J., dissenting). Petracchi wrote:
El mds rotundo mentis a esos pron6sticos apocalipticos lo constituye en hecho
evidente de que-bajo el imperio de la doctrina que ahora [la mayoria] se
pretende desplazar-los poderes constitucionales han hecho de ella una muy
prudente aplicaci6n, sin que ninguno de sus hipot~ticos perjudiciales efectos
se hayan concretado.
Id. [The most complete denial of these apocalyptic prophesies comes from the fact
thatunder the reign of the doctrine that [the majority] now tries to displace-the
constitutional powers applied it prudently, without any of their hypothetical prejudicial effects
having come to be.] (translation by Note author). Several commentators reached the
same conclusion. Nino, supranote 17, at 319; Vera Villalobos, supra note 18, at 466-67.
468. Aramayo, 306 Fallos at 73-74; see supra notes 344-50 and accompanying text
or the appointments of the nation's clergy.4 69 Commentators4 70
also argue that the Aramayo standard 4 71 sufficiently protected
good faith expectations by allowing for a broad threshold of tacit
ratification.4 72 The argument concludes that by allowing
expectations to validate defacto laws regardless of other circumstances,
the Supreme Court in Gaggiamo4 7 and Godoy4 7 4 ignores
III. RECOGNIZING THE ILLEGITIMACY OFDE FACTO LAWS
AD THE NEED TO REEMNORCE CONSTITUTIONAL
The Aramayo standard 476 for the treatment of de facto laws,
which requires that a constitutional legislature ratify all de facto
laws before they are binding or rights under them vest,
represents a feasible and just standard. 477 This standard recognizes
the illegitimacy of Argentina's de facto governments. 478
Furthermore, this standard does not create the social unrest that the
majority in Godoy 4 79 and Gaggiamo48 0 feared. 481 The standard
also promotes the creation of strong constitutional
institutions,48 2 while simultaneously denouncing the authoritarian use
of force to rule. Finally, the current standard, accepting defacto
laws as legitimate regardless of congressional ratification,4 8 3
legitimizes rule by force and creates a dangerous precedent.
A. The Inherent Illegitimacy of De Facto Governments
In a constitutional system, no branch of government should
tolerate a break from the constitutional order or declare one to
be legitimate.48 4 The Constitutional Constituent Assembly of
1994485 stressed this point by adding the instant nullification of
all future defacto governments as a new guarantee to the
Constitution.4 86 The Supreme Court has found defacto governments to
be disruptions of constitutional order several times.4 8 7 Even
though de facto governments have facially recognized certain
constitutional guarantees,4 8 8 claims to legitimacy on these
grounds fails in the face of the gap between the words of defacto
governments and their actions. 489
B. Aramayo ProtectedExpectations
The Court in Aramayo49 ° held that de facto laws were only
valid when Congress either expressly or tacitly ratified them. 491
The Court, in Godoy492 and Gaggiamo,493 feared that the lack of a
482. Nino, supra note 17, at 317.
483. See supra notes 351-55 and accompanying text (discussing restoration of de
facto doctrine in Godoy and Gaggiamo).
484. See supra notes 434-43 and accompanying text (presenting arguments finding
defacto governments illegitimate).
485. See supra notes 358-63 and accompanying text
Assembly's 1994 changes to Constitution)
486. CONST. ARG. art. 36; see supra note 359 and accompanying text (discussing
addition of Article 36 of Constitution nullifying future defacto governments).
487. Aramayo, 306 Fallos at 74 (describing democracy as return to constitutional
order); EditoraPopular,289 Fallos at 180; Gaggiamo, [1992-D] L.L. at 489 (Petracchi,J.,
488. See supranotes 386-91 and accompanying text (stating incidents where defacto
governments professed to recognize constitutional guarantees).
489. See supra notes440-41 and accompanying text (outlining disparity between de.
facto governments pledge to uphold constitutional guarantees and their actions).
490. Aramayo, 306 Fallos at 73-74; see supra notes 344-50 and accompanying text
(discussing Court's adoption in Aramayo of standard requiring express or tacit
congressional ratification of defacto laws).
491. Aramayo, 306 Fallos at 73-74.
492. Godoy, [1991-I] J.A. at 458.
clear definition of tacit ratification would lead to widespread
social chaos because of an uncertainty over what rights were vested
under it.4 94 Yet, this chaos never existed when the Aramayo
standard4 95 applied, nor did it appear likely to become a threat.4 9 6
The Court in Godoy4 9 7 and Gaggiamo4 98 changed the treatment of
defacto laws to solve a threat that did not exist. The cost of
solving this non-existent threat is the prevention of benefits under
the Aramayo standard.4 9 9
C. Aramayo Denounces Usurpation of Power
The Aramayo standard5 00 of express or tacit congressional
ratification 50 1 denounced rule by force and reiterated the
Argentina's commitment to the Constitution. Godoy50 2 and
Gaggiamo-0 3 have the opposite effect. By granting validity to every
law enacted by a de facto regime regardless of its content, the
Court in Godoy5 04 and Gaggiamo50 5 holds that de facto regimes
have the power to vest rights and bind others.50 6 The Court uses
people's expectations as a grounds for legitimacy without
considering whether those expectations were reasonable.50 7 By
indirectly stating that people are reasonably justified in expecting all
493. Gaggiamo, [1992-D] L.L. at 485.
494. Id.; Godoy, [1991-I] J.A. at 459.
495. Aramayo, 306 Failos at 73-74; see supra notes 344-50 and accompanying text
(discussing Court's adoption in Aramayo of standard requiring express or tacit
congressional ratification of defacto laws).
496. Gaggiamo, [1992-D] L.L. at 490 (Petracchi, J., dissenting); Nino, supra note
17, at 319; Vera Villalobos, supranote 18, at 466-67; see supra notes 463-69 and
accompanying text (discussing absence of societal fear over status of rights vested by defacto
de facto legislation to be legitimate, the Court in Godoy50° and
Gaggiamo0 9 implies that the legitimacy of de facto laws comes
from a legitimate source, a de facto government, and not from
equitable circumstances or the Constitution. The Aramayo
standard5-1 standard, in contrast, labels defacto governments and the
use of force as illegitimate" and defines the only legitimizing
source of laws as the constitutional legislature.5 1
D. Strengthening of Institutions
Argentina's democratic and constitutional institutions have
never had strong and deep popular support.5 13 The nation
emerged from a background steeped in authoritarianism and
control by the powerful. 1 4 A legacy of authoritarianism carried
over to the independent Argentine State5 15 and well into its
constitutional government.5"6 Although a constitution and an
institutional framework existed for much of this time, those in power
often circumvented or ignored it.51 7 A combination of
economic and political factors cut short the Nation's attempt at an
open democratic government in 1930.518 With the passing of
democratic and constitutional government in 1930,519 many of
508. Godoy, [1991-1I] J.A. at 458.
509. Gaggiamo, [1992-D] L.L. at 483.
510. Aramayo, 306 Fallos at 773-74; see supra notes 344-50 and accompanying text
(discussing Aramayo standard requiring express or tacit congressional ratification of de
511. Aramayo, 306 Fallos at 73-74.
513. Corporatism,supra note 176, at 129-30; ConstitutionalReform, supra note 83, at
635-38; Peralta-Ramos, supra note 176, at 46-47; see Garro, supra note 15, at 9 (stating,
"institutional problems have been a constant threat to the survival of democracy in
Argentina, but it is precisely at the junction of transition when governments must seize
the opportunity to strengthen the civic values that have never been in great supply").
514. See supra notes 43-58 and accompanying text (describing authoritarian
Spanish rule in colonial Argentina).
515. See supra notes 74-79 and accompanying text (detailing lack of political
change following independence).
516. See supra notes 157-64 and accompanying text (describing maintenance of
non-democratic tendencies following founding of Constitution of 1853).
517. See supra notes 154-56 (examining caudillo defiance of government following
founding of Constitution); see supra notes 157-164 (commenting on restrictive
518. See supra notes 184-85 and accompanying text (outlining factors leading to
General Uriburu's Coup).
519. See supra notes 182-89 and accompanying text (discussing coup that
overthrew civilian rule in 1930).
the nascent institutions slowly ceased to exist. 520 The ensuing
five decades of defacto and civilian governments that followed
did not provide the stable background necessary for the creation
of strong institutions as the state persecuted political parties,522
tinkered with the judiciary,52 3 altered the
banded Congress,5 25 dismissed presidents,52
disand hampered the
freedom of the press.52 7 The lack of strong institutions often
forced those who could not otherwise participate in government
to resort to force to achieve their goals.528
Even though Argentina has had a democratic and
constitutional government since 1983,529 its democratic and
constitutional institutions are not yet stable. 530 The Menem
administration has decreased the independence of the Judicial Branch." 1
520. Alfonsin, supra note 2, at 43; see supra notes 282-83 and accompanying text
(describing need to construct new democratic and constitutional institutions upon
return to democratic government in 1983).
521. See supra notes 182-281 and accompanying text (discussing civilian and
military governments between 1930 and 1983).
522. See supra note 191 and accompanying text (discussing fraudulent elections
between 1932 and 1943); see supra note 212 and accompanying text (detailing
interference with political parties duringJuan Per6n's first era); see supranotes 226-55
(describing exclusion of Peronist party from political system between 1955 and 1973); see supra
note 269 and accompanying text (discussing political oppression during el proceso).
523. See supra notes 444-49 and accompanying text (detailing interference with
judiciary by defacto governments).
524. See supra note 210 and accompanying text (describing Peronist Constitution
of 1949); see supranotes 221-26 and accompanying text (discussing restoration of
Constitution of 1853); see supra notes 358-65 and accompanying text (detailing
constitutional changes made in 1994).
525. See supranotes 27-31 and accompanying text (listing coups where military
526. See supranotes 27-31 and accompanying text (listing coups where military
dismissed presidents); see supra notes 232-39 and accompanying text (discussing military's
removal of Argentine president when removal was not followed by military
527. See supra notes 213-15 and accompanying text (discussing press restrictions
during first Peronist era); see supranote 269 and accompanying text (discussing
repression of media during el proceso).
528. See supra note 193 and accompanying text (describing failure of political
system resulting in civilians using military to achieve their political goals).
529. See supranotes 282-300 and accompanying text (describing Argentine
democracy since 1983).
530. Corporatism,supra note 176, at 129-30; ConstitutionalReform, supra note 83, at
635-38; see Stotzky, supra note 32, at 127-28 (describing creation of Centro de Estudios
Institucionales [Center for Institutional Studies] devoted to study of growth and
strength of democratic institutions in Argentina).
531. See supra notes 294-95 (describing Menem Administration's expansion of
Supreme Court to include four new Justices aligned with President Menem).
DE FACTO LAWS
The increase in the use of executive decrees to legislate
encroaches upon the power of the Legislative Branch.53 2 The
constitutional amendments disrupt the stability of certain
institutions. 1 3 The Federal Government has infringed upon
provincial sovereignty by replacing the governors of several
The establishment of constitutional institutions is a
necessary step in Argentina's transition to democracy.5 35
Entrenchment of constitutional institutions, however, will not occur
without popular support.5 36 Granting validity to de facto laws and,
thus, treating de facto governments as equals to de jure
governments, hampers the establishment of a strong institutional legal
system by tarnishing the public's belief in the Constitution and
the rule of law.5 37 This particularly concerns Argentina because
the rule of law does not enjoy a strong confidence among the
public.5 3' Because the Aramayo standard 5 9 did not tarnish the
532. See supra note 297 (detailing President Menem's increase in use of executive
decrees of urgency and necessity as means to legislate).
533. See supra notes 104, 363-65 and accompanying text (explaining abandonment
of traditional one-term limit of president for two-term limit); see supra note 360
(detailing change in composition of Senate); see supranote 360 (discussing creation of Public
Ministry as independent branch of government).
534. See supra note 298 and accompanying text (discussing President Menem's
political intervention in provinces).
535. Alfonsin, supra note 2, at 43. President Alfonsin wrote, "only through
institutionalization of democratic procedures, dialogue, and participation [is it] possible to
lay the groundwork to establish the sovereignty of law." Id. See Corporatism,supra note
176, at 146 (defining strong democracy as involving "broad and deep popular
participation in decision making and control led by strong participative and ideologically
committed political parties and parliamentary bodies").
536. Jean-Bertrand Aristide, The Role of theJudiciay in the Transition to Democracy, in
TRANSITION TO DEMOCRACY, supra note 2, at 35, 39-40. In regard to constitutional
institutions, the former President of Haiti warned, "we must not be naive about the
institutions of government. The institutions as we have painfully learned, are extraordinarily
fragile." Id. He continues that justice and the institutions that bring it about must be,
"accepted and furthered at all levels of society." Id.; see also Garro, supra note 15, at 4
(warning, "the most troubling issues posed by the transition to democracy in Latin
America are therefore centered not so much on the creation of new legal institutions,
but rather on the need to develop the necessary degree of consensus in support of
537. See Nino, supra note 17, at 317 (calling acceptance of defacto laws "the most
obvious contribution to the impairment of the democratic process on the part of the
538. Garro, supra note 15, at 76-78. In a 1992 poll, 70.5% of Argentina felt that
there was no judicial security in the nation and 63.3% believed that the judicial branch
was not independent from the executive branch. Editorial, Legal Integrity?, BUENOS
AIRES HERALD, Nov. 1, 1992, at 14. In a different poll in 1992, only 30% believed that
rule of law by recognizing validity in the rule of force, it is more
beneficial to the creation of legal institutions in Argentina than
the standard set forth in Godoy5 40 and Gaggiamo.5 41
E. Validity and the DangerousPrecedent
Defacto governments kept the courts open for two reasons,
to help govern 542 and to validate their regimes.54 3
governments of Argentina viewed themselves as the vanguard of
the society that they were trying to protect.5 44 These
governments sought a seal of legitimacy from the courts, an institution
of logic and order.545 To obtain legitimacy, the de facto
governments kept the courts open and tinkered with the judiciary,
ensuring that the de facto governments controlled the courts and,
subsequently, the granting of legitimacy.5
The acceptance of de facto laws indirectly grants legitimacy
to de facto governments. Recognizing that de facto governments
have the ability to create a law that binds society as thoroughly as
a de jure government, bestows upon the de facto government a
judicial equality with a de jure government, and, thus, a certain
legitimacy. Ajudicial standard, such as Argentina's current
standard on defacto laws, that grants legitimacy to any aspect of a de
facto government, accomplishes what de facto governments were
the rule of law was healthy in Argentina and 20% that the executive branch treated the
judiciary as an independent branch of government. Segin una encuesta, la mayoria duda
de laJusticia,CLARIN, Mar. 26, 1992, at 5.
539. Aramayo, 306 Fallos at 74; see supra notes 344-50 and accompanying text
(discussing Court's adoption in Aramayo of standard requiring express or tacit
congressional ratification of defacto laws).
540. Goday, [1991-1I] JA. at 458; see supra notes 409-17 and accompanying text
(discussing standard Court suggests in Godoy of treating all defacto laws as valid).
541. Gaggiamo, [1992-D] L.L. at 483; see supra notes 418-30 and accompanying text
(discussing Gaggiamo majority treating all defacto laws as legitimate).
542. Owen M. Fiss, The Limits ofJudicialIndependence,25 U. MiAMi INrTER-AM. L. REv.
57, 68 (1993).
543. Snyder, supra note 269, at 519.
544. See supra note 196 and accompanying text (describing Nationalist military
government's perception of self as savior of Argentina); see supra note 247 and
accompanying text (describing de facto government of 1966 to 1973 view of self as national
savior); Snyder, supra note 269, at 510 (noting that junta during el proceso saw itself as
"the guardian of the national heritage, the exponent of the noblest values of Argentine
society and the true defenders of its Constitution").
545. Snyder, supra note 269, at 519.
546. Id. The defacto governments used the courts to appear as an "actual player in
the game of legal rhetoric, a partner with court, petitioner, and legal analysis in the
search for legality and justification." Id.
unable to accomplish on their own, veiling their authoritarian
regimes behind a facade of legitimacy. .. ,.M
Granting legitimacy to a defacto government creates a
dangerous precedent. The more legitimate defacto governments
appear to Argentines, the less repulsive these governments seem.
The standard in Godoy547 and Gaggiamo5 48 suggests that if the
Supreme Court found past defacto governments to be legitimate,
they might find future ones to be as well. The removal of the
stigma of illegitimacy creates a precedent that casts a shadow
over Argentina's transition to democracy.
The Argentine Supreme Court's treatment of defacto laws as
legitimate endangers Argentina's transition to democracy
with.out achieving the intended greater protection of the public's
expectations based on those laws. By failing to reject the validity of
laws born from authoritarian rule, the current treatment of de
facto laws weakens Argentina's constitutional institutions by
allowing for methods of legislation not enumerated in the
Constitution and eroding public confidence in the legal system. The
Supreme Court's retreat from a standard requiring express or
tacit congressional ratification of all de facto laws before the
Court would recognize them as valid, sets a dangerous precedent
by recognizing the ability to legislate by force. In order to best
denounce rule by force and to strengthen the rule of law, the
Argentine Supreme Court must stress the inability of defacto
governments to bind constitutional rule by returning to a standard
requiring congressional ratification of de facto laws. Failure to
return to a standard requiring congressional ratification of de
facto laws bodes ill for the health of Argentina's democracy and
serves as a poor example for other nations undergoing similar
transformations from authoritarian to democratic government.
24. SUSAN CALVERT & PETER CALVERT , ARGENTINA: POLITICAL CULTURE AND STA . BILITY 14 ( 1989 ) [hereinafter CALVERT]; Keith S. Rosenn, The Success of Constitutionalism in the United States and Its FailureinLatin America: An Explanation ,22 U. MIAMI INTER-AM. L. REv . 1 , 22 - 23 ( 1990 ). Spanish explorers first arrived in what is now Argentina in 1516 . DAVID RocK, ARGENTINA: 1516 - 1987 , at 8 ( 1987 ). It took nearly 70 years before the Spanish colonies in Argentina were advanced enough to engage in significant internal and external trade . Id. at 6.
31. Robert D. Kartheiser , Jr., De Facto Governments, State of Siege Powers, and Freedom of the Pressin Argentina , 18 U. MIAMI INTER-AM. L. REv . 243 , 248 ( 1986 ).
32. Irwin P. Stotzky , The FragileBloom of Democracy , 44 U. MIAMI L. REV. 105 , 113 ( 1989 ) (describing history of Argentina as "that of a nation caught in a never ending cycle between hope for democracy and fear of authoritarian rule"). 1 . The Authoritarian Origins of Argentina: 1513 - 1810
35. ARMY STUDY , supra note 30 , at 17. The people of Argentina established their autonomy in 1810 and declared their independence in 1816 . Id.
36. CALVERT, supra note 24, at 17; Rosenn, supra note 24, at 21.
37. CONST. ARG.
38. Gisbert H. Flanz , Comparative Notes on the New Constitution of Argentina, in CONSTITUTIONS, supra note 8 , at xi
39. ROCK, supra note 24, at 129- 31 . By 1870, the disputes among the provinces that had marred the years following Argentina's independence from Spain, ceased to create national fragmentation . Id.
40. Id . at 131-52 ( detailing economic growth between 1852 and 1890); id . at 163- 69 ( detailing economic growth between 1890 and 1913 ). Between 1861 and 1889, the combined value of imports and exports rose from 47 million gold pesos to 250 million gold pesos . Id. at 132. Cultivated land in Argentina expanded from 600 ,000 hectares in 1872 to 2, 500 ,000 hectares in 1888 . Id. at 136. While Argentina only exported 77 metric tons of wheat between 1870 and 1874, that number increased to 782,000 between 1890 and 1894 . Id. The value of exports increased fivefold between 1893 and 1913 . Id. at 167. The tonnage of goods that passed through Argentine ports tripled in the two decades from 1893 to 1913 . Id. at 168-69.
41. Id . at 184-90 ( discussing expansion of electorate, greater role of political parties, and strengthening of constitutional institutions).
42. ARTHUR P. WHITAKER , ARGENTINA 65 ( 1965 ). In 1912, the Argentine Congress enacted legislation requiring universal male suffrage . ROcK, supra note 24 , at 189- 90 . The most blatant types of electoral fraud had disappeared by the 1920's . Id. at 190.
63. Kartheiser , supra note 31, at 244.
64. CONST. ARC. The Constitution states that the "Argentine Nation adopts for its government the federal, republican, representative form as established by the present Constitution." Id. art. 1.
65. Cristina Bonasegna , BuenosAires Law puts Falklands in Argentine State, DAILY TEL, . EGRAPH, Apr. 27 , 1990 , at 13. The Argentine nation is divided into provinces . Id.
66. CONST. ARG. art. 1.
67. Id . arts. 87 - 107 . Articles 87 to 107 of the Argentine Constitution enumerate the powers of the Executive Branch . Id.
68. Id . arts. 44 - 86 . Articles 44 to 86 of the Argentine Constitution describe the powers of the Legislative Branch . Id.
69. Id . art. 44. Article 44 of the Constitution declares, "[a] Congress consisting of two Chambers, one of Deputies of the nation and the other of Senators of the Provinces and the City of Buenos Aires, is vested with the Legislative Power of the Nation." Id.
70. Id .
71. Id . arts. 108 - 19 . Articles 108 to 119 detail the nature and competence of the Judicial Branch . Id.
72. Id . art. 108. Article 108 of the Constitution states, "[t]he Judicial Power of the Nation shall be vested in a Supreme Court ofJustice." Id.
73. Id . arts. 1- 43 . The Constitution guarantees, amongst other liberties, the right to work, free speech, free religion, and the right to learn . Id. art. 14.
74. ARmy STUDY , supra note 30 , at 16- 17 . Napoleon's removal of the Spanish King in 1808 catalyzed the independence movement . Id . The Argentines who overthrew the colonial powers in Buenos Aires initially intended to rule until the King returned to the Spanish throne . CALVERT, supra note 24 , at 17.
75. ARw STUDY , supra note 30 , at 17.
76. CALVERT, supra note 24, at 17- 18 . Independence changed neither the class structure nor the position of the church in government . Id. at 18 . Among the traits carried over into post-independence Argentina were the reliance on individuals, rather than parties, for leadership, the extraction of forced loans from political opponents, and provincial allegiances that discouraged compromise with opposition . Id. at 38-40.
77. FERNS, supra note 44, at 14. The elites in colonial Argentina were first merchants and then the owners of vast tracts of land. Id. The Argentine elites sought to consolidate the monopoly of power . RocK, supra note 24 , at 38. The monopolies of the Argentine elites existed in land ownership, trade, smuggling, and mule breeding . Id. at 117 . The Argentine elites tended to be urban . Id.
78. CALVERT, supra note 24, at 17.
79. Id . at 17. One of the benefits that the elite sought was the power, prestige, and profit that came with the filling of governmental posts previously reserved for those born in Spain. Id. This concept applies to Latin America as a whole . Rosenn, supra note 24 , at 21- 22 . Land based elites initiated the independence movements not as a means to overturn the traditional economic and social orders, but rather as a means to increase their betterment from those structures . Id.
80. ARMY STUDY , supra note 30 , at 21. The Federalists were a political force aligned with provincial leaders who sought greater autonomy for the individual provinces and wanted to create a loose federation that would unite them . Id.
81. Id .
82. Id . at 22. The Unitarists base of support was in Buenos Aires. Id. The Unitarists sought greater and less restrictive trade . ROCK, supra note 24 , at 36. The Unitarists advocated "administrative and political centralism." Id.
83. Carlos S. Nino , The Debate Over ConstitutionalReform in Latin America, 16 FORDHAM INT'L LJ . 635 , 639 ( 1993 ) [hereinafter ConstitutionalReform]. The exclusion of Federalist concerns from both the Constitution of 1819 and the Constitution of 1824 created deep divisions in Argentina . Id.; RoCK, supra note 24, at 93- 94 . The Constitution of 1819 fell victim to disagreements between the provinces . Id.; Forces representing the Province of Buenos Aires mounted a failed invasion of the Province of Santa Fe in an attempt to force the Constitution of 1819 upon the local government of Santa Fe. Id. The Constitution of 1826 collapsed in the face of disputes between the provinces . Id. at 101-04. In 1828 ,Juan Manuel de Rosas emerged from the provincial disputes as a national dictator based in Buenos Aires, a position that he would effectively hold until 1852 . Id. at 103-04.
84. SMITH, supra note 61, at 121. During this period, the Argentine population's resources and "primary loyalties were devoted to the provinces rather than the Republic." Id. There was no unified government that could exert control over the entire nation . Id.
85. RoCK, supra note 24, at 101- 04 . A caudillo is the term used for any local strongman who has a private military and rules by force . Id. at 93 . Caudillos are "[p]rovincial warlords." Id.
86. Id . at 121 -22 The Unitarists in Buenos Aires felt excluded from the Constitution of 1853. Id. Among other things, they were concerned over the status of the city of
89. ARMY STUDY , supra note 30 , at 31. To entice Buenos Aires to ratify the Constitution of 1853, the other provinces made concessions such as granting a special status to the city of Buenos Aires and delaying the date customs' revenue collected at the port in Buenos Aires became domain of the national government . Id.
90. LEVENE, supra note 60, at 463. The Battle of Pav6n was the ultimate conflict between Unitarist and Federalist forces in Argentina . Id.
91. Id . at 459. General Bartolom6 Mitre was the Minister of War of the Province of Buenos Aires during the period when it resisted adoption of the Constitution of 1853. Id. In the late 1850's, Mitre also became the Governor of the Province of Buenos Aires . Id. at 460-61
92. ARMY STUDY , supra note 30 , at 33.
93. Id .; ROCK, supra note 24, at 125; see LEVENE , supranote 60 , at 464-67 (discussing Mitre Government between 1861 and 1862 ).
94. ARMY STUDY , supra note 30 , at 30. In 1852, the Federalist forces that defeated the caudilloJuanManuel de Rosas organized a Constitutional Constituent Assembly. Id. The most influential delegate was Juan Bautista Aberdi . Id.; Segundo V. Linares Quintana , Comparison of the ConstitutionalBasis of the United States and Argentine Political Systems , 97 U. PA. L. REv . 641 , 642 ( 1949 ).
95. CONST. ARG. The Constitutional Constituent Assembly began in 1852 . ARMY STUDY, supra note 30 , at 30. The delegates from all the provinces but Buenos Aires ratified the Constitution at the Constitutional Constituent Assembly of 1853 . Linares Quintana, supra note 94 , at 642. It was not until the other provinces agreed to some constitutional modifications in 1860, that Buenos Aires adopted the Constitution of 1853 . ARMY STUDY, supra note 30 , at 31; Alberto F. Garay , Federalism, theJudiciay, and ConstitutionalAdjudicationin Argentina: A Comparison with the U.S . ConstitutionalModel, 22 U. Mits m INTER-AM. L. REv . 161 ,162 n. 2 ( 1991 ). To avoid confusion about the different dates involved, many scholars refer to the Argentine Constitution as the 1853-60 Constitution . Id.
107. Id . art. 44 . The number of deputies that each province sends is contingent upon that province's population . Id. art. 45 . The term of the deputies is for four years . Id. art. 50.
108. Id . arts. 108 - 19 (enumerating Judicial Power).
109. Id . The Supreme Court is the "guardian and final and definitive interpreter of the Constitution." Linares Quintana, supra note 94 , at 656. The members of the Supreme Court are Supreme Court Justices . CONST. ARG. art. 110.
110. CONST. ARc. arts. 1 -43 (listing constitutional guarantees). Among the guarantees in the Constitution are freedom of speech, the right to unionize and strike, freedom of religion, and the right to own property . Id.
111. Id . arts. 87 - 107 . Articles 87 to 107 establishes the Executive Branch and enumerate its authority to execute the law and create government policy . Id . The president holds the powers vested to the Executive Branch . Id. art. 87.
112. Linares Quintana, supra note 94 , at 665.
113. CONST. ARG. art. 99 , cl. 12 .
114. Id . art. 99 , cl . 4.
115. Id . The president's nominees for the Supreme Court are contingent upon a two-thirds majority vote of the Senate . Id.
116. Id . art. 78 .
117. Id . art. 80. A bill that the executive rejects returns to Congress . Id. art. 83 . The legislature may override the executive by a two-thirds majority . Id.
118. Id . art. 99 , cl . 2.
119. Id . art. 99 , cl . 3. Presidents have declared the existence of exceptional circumstances in an array of situations including internal security problems, economic crises, the need for new national identification documents, and Bolivia's shortage of cement . HoRAcio VERBITSKY , HACER LA CORTE 164-65 ( 1993 ).
120. CONST. ARG. art. 99. cl. 3 . The Constitution states:
131. Id . arts. 59 - 60 .
132. Id .
133. Id . art. 53 . The Chamber of Deputies may only impeach the president or a Supreme Court Justice by a two-thirds majority . Id.
134. Linares Quintana, supranote 94 , at 643. In the 1860' s and 1870's, as a recognition of the influence of the U.S. legal system in Argentina, Congress ordered the translation into Spanish of books on U.S. constitutional law . Garay, supra note 95 , at 176 n.100.
135. See CONST . ARc. art. 108 ( establishing Supreme Court possessing Argentina's judicial power); Id . arts. 108 - 19 ( describing nature and competence ofjudicial branch).
136. See id. art. 108 (allowing Congress to create federal courts inferior to Supreme Court) .
137. Nino , supra note 17, at 316. The Supreme Court has the power of judicial review, the authority to determine whether a piece of legislation exceeds the constitutional powers of Congress or the president . Id . While the power of judicial review is not enumerated in the Constitution, it has grown out of Supreme Court case law . Id.; Rios, 1 Fallos 36 , 36 ( 1863 ) (finding president may not ascribe judicial functions to administrators ); Calavete, 1 Fallos 345 , 349 ( 1864 ) (asserting Supreme Court is final interpreter of Constitution); Sojo, 32 Fallos 125 , 141 ( 1887 ) (holding congressional legislation to be unconstitutional); La Municipalidad de la Capital c . Elortondo , 33 Fallos 162, 184 ( 1888 ) (establishing Supreme Court's duty to find legislation unconstitutional if outside of Constitution's mandate) .
138. Irizarry y Puente, supra note 4 , at 33- 34 . The Supreme Court releases Acordadas, declarations and comments that have no binding legal effect . Id.
139. Garay , supra note 95, at 187-201; Alejandro M. Garro , Eficacia y autoridad del precedente constitucional en america latina: las lecciones del derecho comparado, 20 U. MIAMI INTER-AM . L. Rav. 480 , 486 ( 1989 ) [hereinafter Precedente constitucional] .
140. Garay , supra note 95, at 187-201; Precedente constitucional, supra note 139 , at 1158. SeeJulio Oyharante, Cuestiones nojusticiables , in TEMAS DE CASACI6N V RECURSOS EXTRAORDINARIOS 143 , 143 - 54 ( 1982 ).
142. Arlandini , 208 Fallos 184, 186 ( 1947 ); Acordada sobre reconocimiento del Gobierno surgido de )a Revoluci6n del 4 deJunio de 1943 , 196 Fallos at 6-7 ( 1943 ); Acordada sobre reconocimiento del Gobierno Provincial de la Naci6n , 158 Fallos at 290, 291 ( 1930 ) ; GERMAN J. BIDART CAMPOS , THE ARGENTINE SUPREME COURT: THE COURT OF CONSTITUTIONAL GUARANTEES 10 ( 1982 ).
143. CONST. ARC. art. 110 .
144. Id . arts. 1- 43 . Articles 1 through 43 enumerate constitutionally guaranteed liberties . Id.; see Linares Quintana, supra note 94 , at 645-49 (summarizing constitutional guarantees).
145. CONST. ARG. art. 14. Article 14 enumerates several rights, including rights: [Of] working in and practicing any lawful industry; of navigating and trading; of petitioning the authorities; of entering, remaining in, travelling through and leaving Argentine territory; of publishing their ideas through the press without previous censorship; of using and disposing of their property; of associating for useful purposes; of freely professing their religion; of teaching and learning .
146. Id . art. 14 bis.
147. Id . art. 18 .
148. Id . (stating that "defense, by trial, of the person and of rights is inviolable").
149. Id . art. 17. Article 17 establishes that property is "inviolable, and no inhabitant of the nation can be deprived thereof except by virtue of a sentence founded on law. Expropriation for reasons of public utility must be authorized by law and previously compensated." Id.
150. BIDART CAMPOS , supra note 142, at 52. Vested rights are rights to property arising from judgements, laws, contracts, or administrative rights. Id. A vested right is a right granted in law and "of which an individual could not be deprived without injustice, or of which he could not bejustiy deprived otherwise than by the established methods of procedure and for the public welfare . " BLACK, supra note 7 , at 1564.
The Supreme Court has interpreted Article 17 as a guarantee to retain a vested right when Congress repeals the law granting it . Gaggiamo, [ 1992 -D] L.L. at 483 (finding that right vested by law is protected under Article 17 of Constitution); Horta c . Harguindeguy , 137 Fallos 47, 61 ( 1922 ) (stating "ni el legislador ni eljuez pueden, en virtud de una ley nueva o de su interpretaci6n arrebatar o alterar un derecho patrimonial adquirido al amparo de la legislaci6n anterior." ["neither legislator nor judge can,
157. Id . By 1870 , the political struggle between Federalists and Unitarists was over . Id . The Unitarist's goal of creating a strong centralized government prevailed over the Federalists goal of a loose coalition with greater autonomy for the provinces . Id.
158. Id . at 131-52 ( detailing economic growth between 1852 and 1890); FERNS , supra note 44, at 54. In the 20 years from 1870 to 1890 , the total length of Argentine railway track in kilometers increased from 836 to 3300 . Id. at 55. During this same period exports of wheat increased from 9 tons a year to 327,894 tons, wool from 6.8 million pesos to 35.5 million, and animal hide from 10.3 million pesos to 20 million . Id. at 67. The value of Argentine exports increased form under 100 million gold pesos in 1893 to over 500 million gold pesos in 1913 . ROCK, supra note 24, at 167.
159. ROCK, supra note 24, at 131. During this period, Argentina became a more educated, urban, and wealthy nation . Id. at 118 , 143 . In 1850, Argentina had an estimated population of a little under one million . FERNS, supra note 44 , at 38. By 1890, Argentina's population had risen to 3.4 million . ROCK, supra note 24, at 153. During this period, Argentina experienced its first major wave of immigration with a net immigration of over 1.1 million people between 1870 and 1890 . Id.
160. RocK, supranote 24 , at 160.
161. ARMY STUDY , supra note 30 , at 216. The Conservative Party governed Argentina from the founding of the Constitution until 1916 . Id. The Conservatives stressed "free trade, export led growth, openness to foreign investment, and a further integration into the global trade and monetary system" while opposing "government intervention in the economy . " Id. at 216-17 . The Conservative Party was the party of the upperclass with strong ties to Argentina's agrarian interests . Carlos H. Waisman, The Legitimation of Democracy UnderAdverse Conditions: The Caseof Argentina , in LIBERAL DEMOCRACY, supra note 13 , at 97 , 98 .
162. RocK, supranote 24 , at 184. Among the problems hampering open elections were that only a portion of the population was enfranchised and that local bosses intimidated opposition and bribed voters . Id.
163. Id . at 189-90.
164. Id . at 188-90.
165. Id . at 190. In addition to the new election laws doubling voter turnout, "the worst kinds of political skulduggery were banished." Id.
166. WHITAKER, supra note 42, at 65.
167. AtMy ST'UD , supra note 30, at 218. The Radical Party began in the 1890's as a political party devoted to breaking up the oligarchical rule of the Conservatives. Id. The Radical Party has traditionally been the party of the middle-class . WHITAKER, supra 354 . Gaggiamo, [1992-D] L.L. at 484. The Court held that:
358. Gisbert H. Flanz , IntroductoryNotes to CONSTITUTIONS, supranote 8, at iii, v. In April 1994 , the Constitutional Constituent Assembly met to draft constitutional changes and ultimately enacted those changes in August 1994 . Id.
359. CONST. ARG. art. 36. Article 36 states that the Constitution "remains in power even when its observance is interrupted by acts of force against the institutional order and the democratic system . These acts are irredeemably null." Id.
360. Barham , supra note 294, at 5. Among those measures added to give more power to opposition parties are the establishment of the Attorney General as an independent branch of government, the addition of one senator from each province who must be from an opposition party, and the assignment of more control to the legislature on matters ofjudiciary and investigative matters . Id.
361. CONST. ARG. art. 54. Each province sends three senators to Cotgress, two of whom belong to "the political party obtaining the greatest number of votes and the rest, to the political party receiving the next largest number of votes." Id.
362. Id . art. 120 .
363. Barham , supra note 295, at 5; Stephen Fidler , Survey of Argentina, FIN. TIMEs, July 13 , 1994 , at 11; Paula L. Green , Argentine PoliticiansBens to Popular Will, CHRISTIAN SCL MoNrroR, June 1 , 1994 , at 4. Until 1994 , the president could not seek consecutive re-election . CONSTITUTIONS, supra note 8 , at xii.
364. CONST. ARG. art. 90 .
365. Ellison , supra note 300, at A15. President Menem started his second term in 1995. Id. President Menem's term is set to expire in December 1999 . CONST . ARG. Transitional Provision 10 .
366. Gaggiamo , [ 1992 -)] L.L. at 484 (stating that de facto laws "debe ser juzgada
368. 1943 Acordada, 196 Fallos at 6; 1930 Acordada, 158 Fallos at 290 ( citing unnamed international practices as authority for supporting use of defacto doctrine); AL . BERT CONSTANTINEAU , A TREATISE ON THE DE FACTO DOCTRINE 3- 6 , 409 ( 1910 ).
369. Gaggiamo , [1992-D] L.L. at 483-84; Godoy, [ 1991 - I1 ] JA. at 458-59.
370. Aramayo , 306 Fallos at 73-74 ( describing democracy as return to constitutional order); Gaggiamo , [ 1992 -D] L.L. at 489 (PetracchiJ ., dissenting)
405. See supra notes 149-50 and accompanying text (explaining guarantees of vested rights in Argentine Constitution's protection of property under Article 17) .
406. Godoy , [ 1991 -I] J.A. at 459; Gaggiamo, [1992-D] at 483-84; see supranotes 344- 50 and accompanying text (discussing Aramayo standard requiring express or tacit congressional ratification of defacto laws); see supra notes 351-55 and accompanying text (describing overturning of Aramayo standard and restoration of defacto doctrine).
407. Godoy , [ 1991 -1I] J.A. at 459
408. Gaggiamo , [1992-D] L.L. at 483-84.
409. Godoy , [ 1991 -Il] J.A. at 457.
410. Id . In Godoy, Oscar Godoy, a teacher who the University of La Plata fired for political reasons in 1974, sued to be reinstated in his post . Id. In 1984 , Congress enacted legislation reinstating teachers who had been dismissed from their posts for political reasons, but left the execution of the law to the schools' discretion. Id. The University of La Plata limited recovery to those teachers who the defacto government during el proceso dismissed for political reasons . Id . Because the school system did not dismiss Oscar Godoy during elproceso, the University refused to reinstate him. Id. Oscar Godoy sued on the grounds that the University's application of the law was too narrow . Id.
411. Id .; see supra notes 149-50 and accompanying text (explaining guarantees of vested rights in Argentine Constitution's protection of property under Article 17) .
412. Godoy , [ 1991 - I1 ] J.A. at 459. The Court addressed the issue of uncertainty by stating:
426. Gaggiamo , [1992-D] L.L. at 485. The Justices Dr . Levene, Dr. Nazareno, Dr. Molin6 O'Connor , Dr. Baggiano, and Dr . Barra voted in favor of Hect6r Gaggiamo. Id. Each of these five Justices was appointed to the Supreme Court after the Peronist expansion of the Court under President Menem in 1990 . VERBITSKv, supranote 119 , at 53- 68; see supra notes 294-95 and accompanying text (describing expansion of Supreme Court from five Justices to nine Justices in 1990 ).
427. Gaggiamo , [1992-D] L.L. at 485. The Justices Dr . Fayt, Dr. Belluscio, and Dr . Petracchi voted against Hect6r Gaggiamo. Id. Each of these Justices was on the Court before the Peronist expansion of the Supreme Court under President Menem . VERBrrsKY, supra note 119, at 53-68; see supra notes 294-95 and accompanying text (describing expansion of Supreme Court from five Justices to nine Justices in 1990 ).
428. Arlandini , 208 Fallos at 186.
429. Gaggiamo , [ 1992 -D) L .L. at 484.
430. Id . (restating precedent for accepting defacto laws "como fue especialmente destacado en el caso 'Godoy.'" ["as was especially noted in the Godoy case."] (translation by Note author )).
431. Nino , supra note 17, at 310; Snyder, supra note 269, at 512; Alfonsin, supra note 2, at 42-43; VERBrrsKY, supra note 119, at 154-58.
432. Gaggiamo , [1992-D] L.L. at 490 (Petrachhi, J., dissenting); Alfonsin, supra note 2 , at 44; Marvin E. Frankel , Concerningthe Role theJudiciary May Serve in the Proper Functioningofa Democracy, in TRANSITION TO DEMOCRACV, supranote 2 , at 23, 28; Stotzky & Nino, supra note 16, at 12; PAGE, supra note 208, at 167.
433. Gaggiamo , [1992-D] L.L. at 490 (Petracchi, J., dissenting); Nino, supra note 17, at 319; Vera Villalobos, supra note 18 , at 466-67.
434. See supra notes 392-95 and accompanying text (presenting proposition that de facto governments are most effective means of governing Argentina) .
435. Nino , supra note 17, at 310; see supra notes 392-95 and accompanying text (outlining argument that de facto government is most effective form of government in Argentina) .
436. Nino , supra note 17, at 310.
437. Id .; see supra notes 267-71 and accompanying text (describing methods authoritarian regime in el proceso used to achieve state goals).
438. Aramayo , 306 Fallos at 73-74 ( describing democracy as return to constitutional order); Gaggiamo , [1992-D] L.L. at 489 (Petracchi, J., dissenting).
439. Alfonsin , supra note 2, at 42-43; VERBITSKY, supra note 119, at 154-58; Snyder, supra note 269, at 512.
440. 1930 Acordada, 158 Fallos at 290.
441. Snyder , supra note 269, at 512. In his first speech after his usurpation of power in 1976, the first leader of the military junta during el proceso stressed that his government would be based upon "the permanence and stability of juridical norms which will guarantee the primacy of law and the observance of it by the governors and