Constitutional aspects of a New Legal-Political Paradigm

The world has declared itself in emergency. An emergency which is different than the ones known so far. It has not been caused by a natural catastrophe, a coup, a war, nor it is a consequence of an economic or financial crisis. A virus, COVID-19, invisible to the human eye, has put all humanity in check, which unexpectedly faces the idea of an apocalypse.

States, that legal-political category born in the shadow of the Peace of Westphalia of 1648, do not find in their legal structures mechanisms to deal with this situation. Neither does international law, nor in particular, international human rights law, its branch developed during the second half of the twentieth century after the Holocaust, provide answers. The “public emergency situation” provided for by national legal systems and recognized by international law do not appear to be adequate tools to confront this new and surprising reality.

In the face of the emergency, states, including our country, have severely restricted the exercise of civil and political rights, that conquest of classical political liberalism. Thus, personal movement is restricted, contractual deadlines are extended, enforcement of judicial decisions and legal proceedings are suspended, the movement of goods and services is restricted, etc. As a result of these restrictions, the actual possibility of enjoying economic, social and cultural rights has also been resented.  All legal relationships are impacted by state action on a global scale. The notions of property, commerce, contract, interpersonal relationships, and even family relationships are called into question in the face of the unexpected situation. Our Supreme Court, in 1934, in the face of an emergency of another nature, sustained, in words that resonate strongly these days: “emergency does not create power, but gives occasion to the exercise of power”.

At the moment, few voices question the measures being taken, almost on the basis of a mechanism of trial and error. “The emergency must be conjured at any cost.” At any? This is the question that some people are beginning to ask themselves. What is the necessary balance between the urgent need to protect the health of the population and allow the inhabitants to continue to enjoy their individual freedom, ultimate end of the state, without their conduct causing harm to others? On this point, individuals and companies who consider that their rights are unreasonably restricted by government action, from any level of government, have the option to sue in court in defense of their rights. For these cases, the suspension of judicial activity does not apply. As both the American Convention on Human Rights and the International Covenant on Civil and Political Rights, both legal documents having constitutional hierarchy in our country, point out, the existence of a state of emergency does not allow the suspension of judicial guarantees, and it must be remembered that under Article 18 of our Constitution, “the defence in judgment of the person and of rights is inviolable”.  The rod to overcome is, however, high: according to peaceful case law, when economic freedoms are at stake, only the  manifest unreasonability  of the measures taken would make the claim viable.  As the Argentine Supreme Court has pointed out, as long as there is an adequacy between the committed public purpose and the means used to achieve it, the regulation will be considered constitutional. In this regard, it was noted that “invalidating an act of a public authority is a matter of notorious gravity, so that the mere allegation of difficulties [created by regulation] and the economic prejudice that it generates is not sufficient to do so, if it is not demonstrated that those circumstances have enough entity to deprive the contested regulation of constitutional support”.

Now, together with the measures taken every day to overcome the crisis, it is necessary to plan for the future. A future that will undoubtedly be impacted by today’s events. How can we restore, once the crisis has been overcome, the validity of the contracts, which are strongly impacted by the measures taken? How to reset production chains, unfailingly cut? How to deal with the loss of purchasing power of families and businesses that will undoubtedly generate an aggravation of structural poverty that our country and much of the world already suffer?

With regard to contracts, it may be said that, because this is a situation of force majeure, parties must stand to what the contracts provided, in accordance with applicable law. Is it indeed so? Will the freedom of contract continue to be sovereign? We don’t think so. The scale of the crisis is such that the application of orthodox parameters does not seem reasonably  possible. In the face of this situation, there cannot be “winners and losers”. We’re all aboard the same boat.

Decades ago, the emergence of the civil law theory “Teoría de la Imprevisión” (hardship theory) sought to provide responses to sudden emergencies that substantially alter the contract economics. However, this doctrine was neither endorsed nor recognized by the legal systems of the central countries, which preferred -even in contexts of economic emergency or even in the face of terrorist action such as the attack to the Twin Towers in 2001- to uphold the strict performance of contractual obligations and the will of the parties. In countries like Argentina, it was often chosen to incorporate in contracts -usually required by the strongest party in the relationship- a waiver to the possibility of invoking such a theory. We believe that both these solutions, as well as trying to place the burden of the situation on one of the parties to the contract, even when such burden has been agreed, would find today in courts (not only of our country)  serious difficulties for them to be recognized.

What will be the future of broken labour and production relations as an unforeseen consequence of the current crisis? In the face of economic crises, measures adopted by governments during the twentieth century, in the protection of workers and employees, included strong commerce regulations and broad state intervention in industrial relations, giving rise to the “social state”. These mechanisms have been put into crisis because of the current situation. It is not possible, without limitation, to maintain the fiction that the entrepreneur can accept any sacrifice, nor believe that the state alone will be able to provide the solution.

International law will also be affected. The classic idea of national sovereignty, which had already been strongly impacted by the developments of international human rights law, is -once again- challenged. The crisis hit not only peripheral countries, but also central ones. So far, the answers to the crisis have been exclusively national, even in the most integrated systems such as the European Union. Will the crisis reinforce the sovereignty principle, on the basis of a “save who can” or will we go to a strengthening of the community of nations and the search for a common destiny as a human race?

In short, if, as a common place, every crisis is, in turn, an opportunity, the crisis unleashed by the COVID-19 pandemic leads us to the need to be creative and seek long-term solutions that will enable us to achieve -with the least possible impacts, which impacts will undoubtedly exist- the full development of our potential. And in this, the men and women of law, together with politicians, face us as an unparalleled challenge.