By Barbero, Ariel
Freeman , Vol. 62, No. 5
Argentina's former president Eduardo Duhalde - elected by Congress in 2002 after a coup toppled the candidate who had defeated him in the regular elections - once said that Argentina was condemned to success. Indeed a country with fertile land, a mild climate, mighty rivers, a small population that used to be well educated, no major conflicts, and no racial rifts would seem difficult to sink. It must inevitably rise. Nevertheless, we Argentines have demonstrated a rare ability to avoid success. Fortunately destiny - good or bad - is never inevitable.
People often point out that the two Koreas provide (as the two Germanys once did) good examples of what the rule of law means for the life of a nation. Argentina provides yet another example of the changes that take place when respect for rights - including property - is no longer considered relevant. Except that in the case of Argentina, the division doesn't concern space but time.
We Argentines started very well. People tend to forget that by 1928 Argentina had the sixth- highest gross domestic product (GDP) in the world. Income per capita was similar to Germany's. Literature and music flourished.
Immigrants viewed Argentina as a place where hard work made people prosper. It was considered as promising as Canada but with a milder climate. People voted with their feet - the most honest and thoughtful way of voting - and they came to Argentina by the thousands. They came from Spain and Italy, but also from Wales and Denmark. Jews arrived and found that they enjoyed equal protection under the law. One of their sons wrote a novel describing the lives of what he called "gauchos judíos," Jewish gauchos. They could buy land like anyone else and work it. Colombian poet Rubén Darío dedicated a poem to Argentina, in which he admired the Jewish settlers: "youth of strong figure, and sweet Rebeccas of honest eyes!'
What made that flourishing possible? Good land and hard work, of course. But also wise principles and noble ideals. After a period of civil wars, Argentina adopted a reasonable Constitution, largely copied from that of the United States. In fact when the Constitution was amended in 1860, it was considered necessary to add some provisions that "ignorant hands" - as it was said at the Convention - had forgotten to copy from the model.
Since then Argentina's Constitution has declared property "inviolable." Now that these principles have been abandoned, few people realize that this Constitution today is still more open to free trade than the U.S. Constitution. It declares that Argentine rivers are open to all ships, no matter the flag. That constitutional clause is the result of a lesson from history. Years before the Constitution was adopted, the tyrant General Rosas - who once executed a pregnant girl - had closed the rivers to those nations willing to trade with provinces that defied his orders. The tool he had used for strangling the economy of some regions and favoring that of others was banned by the Constitution.
We copied from other nations, but we chose good models. Why reinvent the wheel? It was said at the Constitutional Convention in 1860: Why should we design again the institutions that protect freedom when we have the example of the United States? Today you won't find similar declarations in the mouths of Argentine politicians.
But the copying wasn't blind: It was always in favor of liberty. For instance, in 1871 Congress adopted a Civil Code based on the French one. However, the rules about torts were completely different, and for many years they secured Argentines against the whims of judges fond of being generous at the expense of others. Unfortunately, in the 1930s we started to copy bad ideas, and Argentine law professors began a relentless fight against those restrictions on the powers of judges. They won. The wise rules about torts are still in the code, but nobody about them.
Before that ideological shift, the men who governed and Argentina had embraced free trade and had thought that no progress was possible without respect for property rights. …