On the arbitrium in criminalibus in the Spanish colonial order and the problematic enforcement of the legality principle in the early criminal law in Argentina (18th – 19th centuries).

AGÜERO, ALEJANDRO

Gante

Conferencia; From the Judge's Arbitrium to the Legality Principle. Legislation as a Source of Law in Criminal Trials.; 2010

Department of Legal Theory and Legal History, Universiteit Gent

The Spanish legal culture of the Ancien Régime, the Castilian one to be more precise, had a particular stage in the colonial world. According to the ancient Roman principle that the accessory should follow the fortunes of the principal, the Castilian jurists understood that the Spanish American colonies, as incorporated territory by accession to the Crown of Castile, should be governed by Castilian law. Consequently, the study of colonial institutional practice can serve not only to know the local adaptations of the Castilian legal culture, but also to review some aspects of its own settings. Through an extensive analysis of records of criminal trial led by local judges of a colonial peripheral region (Cordoba del Tucuman), I will try to show that the exercise of arbitrium was an essential feature for a legal culture in which institutional justice operated, by definition, as a device for community governance. Hence, the long tradition of written law in the Castilian legal culture was not contradictory with the possibility, even with the need to adapt the judicial decisions to the circumstances of the case and its context. In this process of adaptation, other normative fields and values regarded as superior to written law, such as the very notion of justice, equity, mercy and the duty to keep the peace and prevent damage, operated to leave local justices a wide range of “discretionary” power. In the transition from the colonial order to the formation of new states, a new rhetoric based on the European liberal discourse was adopted, introducing in this context the formulation of the legality principle for criminal matters. However, in the case of colonial territories to form the new Argentinean State, the weight of the colonial legacy in institutional practice, based on that idea of government by judges, made its implementation take a long time. The introduction of the legality principle in the new legal texts passed by the new governments that emerged after the breakdown of the colonial order, ratified thereafter by the new constitutional order, was not immediately followed by the setting up of the necessary devices to ensure its validity (like a codified legislation and the obligation for judges to express the positive law foundation of their decisions), at least until the first decades of the twentieth century. From this point of view, the difficulties in establishing the legality principle in this particular experience, can serve to reflect on the strong persistence of colonial culture and the limited impact of the emancipation in the institutional practice of the new Argentinean state.