RECENSIONES

Santiago, Alfonso y Boulin, Ignacio A., Derecho constitucional y políticas públicas. El derecho como guía del buen gobierno. Buenos Aires. Astrea, 2023

Lau Alberdi, Jerónimo

Jerónimo Lau Alberdi

jlaualberdi@austral.edu.ar

Universidad Austral Argentina

Santiago Alfonso. Derecho constitucional y políticas públicas. El derecho como guía del buen gobierno. 2023. Buenos Aires. Astrea

Prudentia Iuris

Pontificia Universidad Católica Argentina Santa María de los Buenos Aires, Argentina

ISSN: 0326-2774

ISSN-e: 2524-9525

Periodicidad: Semestral

núm. 96, 2023

prudentia_iuris@uca.edu.ar

URL: http://portal.amelica.org/ameli/journal/797/79746597974659020/

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Santiago, Alfonso y Boulin, Ignacio A., Derecho constitucional y políticas públicas. El derecho como guía del buen gobierno. Buenos Aires. Astrea, 2023

Constitutional law has firmly established itself as the guiding compass for countries. At the very core of constitutional law lies the duality of outlining the framework for governance while ensuring that every citizen’s fundamental rights are inviolable. Within this foundational structure, policy-making emerges as the bridge between constitutional ideals and their practical realization. Scholars Santiago and Boulin, in their latest work, delve deep into this nexus, offering not just an academic analysis but a comprehensive dissection of Argentina’s constitutional dynamics and its implications for policy-making. Their insights, while rooted in Argentina’s unique legal milieu, provide a fresh perspective, challenging conventional paradigms and redefining the contours of the nation's policy discourse.

The essence of true academic understanding lies not in passive observation but in active immersion. Santiago and Boulin’s book is a testament to this principle. Rather than a mere addition to the literature, their work stands as a beacon in Argentine public policy studies, pushing boundaries and pioneering new methodologies. This review aims not just to recapitulate their findings but to engage in a meaningful dialogue, reflecting on their profound insights and situating them within the broader landscape of policy evolution in Argentina.

Literature on public policy has traditionally been compartmentalized, often delving into specific areas such as economics, security, environment, or healthcare. However, the underlying theories that anchor these policies have often been overlooked. Santiago and Boulin break from this norm, offering a comprehensive exploration that intertwines public policy with constitutional law principles. Their work transcends mere academic addition; it presents an integrated perspective, bridging segmented views and laying the groundwork for a holistic understanding of policy-making.

This review has two aims: to render the insights of Santiago and Boulin accessible, particularly to non-Spanish audiences, and to critically engage with their arguments. The intent is not mere scholarly recapitulation but to position their work within a broader academic and pragmatic context. By doing so, this review seeks to amplify the book's essence, assess its contributions and limitations, and underscore its potential to reshape policy discourse, especially in the context of Argentina’s regional significance.

In Argentina, like many Latin American countries, an occasionally dominant executive has sometimes overshadowed the legislative process, underscoring the need for a more participatory approach. Santiago and Boulin emphasize that while the judiciary plays a vital role in upholding the Constitution, policy-making should predominantly be the domain of elected representatives. However, there’s a growing trend where politicians utilize courts not only as mediators but also as shields, offloading the political and electoral costs of contentious decisions onto the judiciary, given that judges aren’t subject to electoral pressures. This delineation, while seemingly clear-cut, becomes nuanced when courts, in their constitutional duty, review and sometimes overturn legislative decisions, leading to perceptions of judicial overreach in policy domains and further complicating the interplay between the branches of government.

The challenge for Argentina and the broader region lies in restoring this balance among state powers and ensuring public policies genuinely reflect citizens’ needs, concerns, and rights. This equilibrium is not merely a bureaucratic necessity for the smooth functioning of administrative entities; it’s a cornerstone for crafting policies that resonate deeply with the lived experiences and aspirations of the people.

To address this challenge, a profound introspection into the existing decision-making processes is necessary. Such a self-examining process demands more than a cursory glance; it requires a meticulous examination of the mechanisms in place, identifying inefficiencies, redundancies, and areas where transparency might be lacking. This rigorous scrutiny serves as a foundation for reforms, ensuring that the machinery of governance is both responsive and accountable.

The authors further emphasize the importance of grounding policies in empirical evidence. In a rapidly evolving socio-political landscape like Argentina’s, policies must be anchored in robust research, ensuring they are not only theoretically sound but also pragmatically equipped to navigate the nation’s unique challenges. This evidence-based approach, coupled with a commitment from all political and social stakeholders, is pivotal for cultivating an inclusive, transparent, and evidence-driven governance system, one that stands resilient in the face of challenges and remains attuned to the evolving needs of its citizenry.

All things considered, the relationship between public policy and constitutional law can be likened to the symbiotic relationship between a tree and its roots. While public policy, like the branches and leaves, is ever-changing and reacts to the external environment, adapting to shifting needs and challenges, constitutional law, much like the tree’s roots, offers stability and grounding. It anchors the entire structure, providing the foundational principles and boundaries within which the dynamic policies can evolve and flourish. Just as a tree requires its roots for nourishment and stability while allowing its branches to reach out, a well-integrated blend of adaptable public policy and steadfast constitutional law ensures a governance system that's both responsive and anchored, always striving for the betterment of its citizenry and the resilience of the country.

Alfonso Santiago is a rare breed among constitutional scholars in Argentina. While many of us oscillate between periods of fertility and drought, and our writing flow or ebb accordingly, Santiago’s intellectual vigor remains consistent. Unlike many writers, like journalists or novelists, who occasionally retreat from the pressures of deadlines, Santiago's dedication to his craft is unwavering, producing work consistently throughout his academic career. This book is a testament to his interdisciplinary prowess, crafted in collaboration with Ignacio Boulin, who has been doing research and teaching in public international law, human rights, constitutional law, and administrative law –an all-terrain versatile scholar. This partnership offers readers a synthesis of domestic and international perspectives, crucial for comprehending governance in today’s globalized context.

The central idea of their book revolves around the “common good”, rooted in the philosophy of personalist solidarism. The authors champion a central philosophy: every public policy, at its core, must place the human being in the center. The individual stands as the anchor, the driving force, and the ultimate beneficiary of all orchestrated activities. And it's not just about rights protection; it’s about sculpting an environment that cultivates individual growth and collective prosperity. The “political common good” concept offers a lens to reevaluate public policies, their role in the state’s political and constitutional fabric, and their ripple effects in broader societal contexts. In light of this assertion, the initial two chapters are devoted to laying down the foundational underpinnings of the book.

As the authors explain, the “political common good” transcends mere human rights protection and becomes the ultimate goal of the state and any political community. This needs a broader conversation –not just about the right to life or freedom but about the public safety policies that are being implemented; not just about the right to education but about the encompassing educational policies; not just about property rights but about the economic policies ensuring stability and wealth creation; and so forth. As the authors explain, it is vital to rediscover and emphasize the concept of public policies and the “political common good” to strike a balance between personal goods and community goods, human rights, and public policies that make them actionable and effective. This also leads to a balanced dynamic between the legislative and executive branches –architects and managers of public policies– and the judiciary. In their view, judicial processes have proven inadequate for executing policies that should be decided through ordinary legislative procedures. This principle sheds light on the challenging issue of judicial activism and the effective implementation of so-called “structural remedies”, facilitating a mature and rational inter-branches checks and balances.

Designed to be a rich academic resource and a guide for policy makers, the book explores the multi-dimensional arena of policy-making. While the executive branch formulates and propels policies, the legislative branch shapes and enacts them, and the judiciary ensures they align with legal norms, providing interpretations as needed. Yet, the process of policy creation extends beyond these branches of government. Numerous participants, including agencies, advocacy groups, research institutions, and the informed public, play pivotal roles in guiding policy direction. Together, their collaborative efforts construct the societal strategies that address current issues and anticipate future challenges.

The role of the judiciary, particularly apex institutions like the Supreme Court, in policy-making has been a longstanding subject of debate. While policy-making is often attributed to the executive and legislative branches, judicial interpretations have undeniably shaped policy directions. It’s recognized that judges, influenced by societal dynamics, can inadvertently impact political and policy outcomes, as evidenced by landmark cases on civil rights, abortion, and economic emergency events. However, the judiciary operates within certain limitations, including reliance on the executive for enforcement and a reactive rather than proactive stance compared to legislatures.

In recent years, Latin American judiciaries have progressively incorporated public hearings into their decision-making, a move that shows a more participatory approach to justice. These hearings serve as platforms where stakeholders, experts, and the general public can voice their perspectives, ensuring that judicial decisions are informed by a broader range of insights. The Supreme Court of Argentina, in particular, has been engaging in a few high-profile cases with public participation mechanisms in an attempt to enhance sociological legitimacy. A notable aspect of this participatory approach is the increasing acceptance and utilization of amicus curiae briefs.

While the authors delve into the complexities of judicial review and express reservations about courts acting as policy-makers, their discourse could benefit from a broader examination of the judiciary’s evolving role in diverse areas, from environmental concerns to socio-economic policies. A comprehensive exploration of the judiciary’s jurisdiction, its engagement with sociopolitical movements, its relationship with administrative bodies, and its increasing openness to external inputs, such as amicus curiae briefs, would offer readers a more nuanced understanding of the judiciary’s multifaceted involvement in policy matters. The aspiration is that such a delve will spark more rigorous studies and incisive discussions.

In essence, it is long been said that one never really gets to know a subject until one has to teach it. If this is true, it is doubly true that one really learns a subject when one writes a book about it. This work written by Santiago and Boulin is a starting point in what I hope will find to be an interesting and fruitful lifetime of thinking about and engaging in public policy making. This book not only pushes the boundaries of established knowledge but takes bold strides in creating a robust structure for a domain that, up until now, has seen limited exploration in Argentina.

With this book available, law schools no longer have an excuse for relegating public policy to the periphery of the constitutional law school curriculum. Their book demonstrates not only that there is much to be said of great interest to the legal profession about the relation of constitutional law and public policy, but also that this material can be conveyed effectively with well-chosen cases and insightful scholarly discussions. The contribution of this book to public policy can be likened to the impact Martin Shapiro had on judicial politics, Richard Posner to Economic Analysis of Law or, in Argentina, the influence Néstor Pedro Sagüés wielded in the area of Constitutional Litigation, known locally as “Derecho Procesal Constitucional”. Through their rigorous study and thorough presentation, Santiago and Boulin have not just written a book –they have demonstrated the existence of a subject.

Notas

Jerónimo Lau Alberdi Universidad Austral. Doctor of Juridical Science (S.J.D.). Candidate at the University of Virginia School of Law. Master of Laws (LL.M.), Georgetown University. Master of Laws (LL.M.) in Constitutional Law, Universidad Austral. Juris Doctor (J.D.) (equivalent), Universidad Austral. President of the Legal Research Forum at the University of Virginia School of Law.