Juicio al Mal Absoluto

by Carlos Santiago Nino

In this book, Carlos Santiago Nino offers a provocative first-hand analysis of developments in Argentina during the 1980s, when a brutal military dictatorship gave way to a democratic government.

264 pages, Unknown Binding

First published September 25, 1996

About the author

Carlos Santiago Nino (1943–1993) was an Argentine moral, legal and political philosopher.

Nino studied law at the University of Buenos Aires and at Oxford, where he received his Ph.D. in 1977 with a thesis directed by John Finnis and Tony Honoré.

Nino began his academic activity in the early 1970s, concentrating on some traditional issues in jurisprudence, such as the concept of a legal system, the interpretation of the law, the debate between legal positivism and natural law, and the concept of validity.[1] After realizing the need to clarify the normative problems involved in some of those issues, he was led to embrace a model based on the explicit adoption of principles of justice and social morality, rejecting the predominant German-inspired "dogmatic" approach.[2] This signaled the beginning of his philosophical investigations, which were always oriented to practical issues, and marked by a distinctively analytical approach. His need to provide a liberal justification for criminal law practice thus lead him to moral philosophy, and to the development of an original "consensual" theory of punishment which combined the merits of the retributive and utilitarian (see deterrence) varieties while avoiding their respective difficulties.[3] Similarly, the problems presented by the characterization of criminal conduct stimulated his work in the field of philosophy of action.[4]

During the early 1980s, after the restoration of democracy, Nino became engaged in politics, serving as personal assistant to President Raúl Alfonsín and as coordinator of his newly created "Consejo para la consolidación de la democracia", a special committee for the study and design of institutional reforms. His theoretical activities, however, were not forgotten: in 1984 he published his monumental Ética y derechos humanos,[5] dedicated to Alfonsín, where he provided a comprehensive exposition of his moral thought; divided in three parts, it dealt with normative and applied ethics, as well as with meta-ethics. This last field he expanded in a separate volume,[6] where he adopted a constructivist approach that attempted to derive his fundamental ethical principles from the presuppositions of moral discourse, in a manner that put him, as he said, "between Rawls and Habermas". These substantive principles, comprising the nucleus of a theory that aspired to capture the essential components of political liberalism, were the principle of autonomy, the principle of inviolability, and the principle of dignity. The first expressed Nino's conception of the good: those things, and those things only, that were valued by the individual in question. The second imposed deontological restrictions to the pursuit of that good, prohibiting the sacrifice of some to achieve the benefit of others. The third principle allowed for individual consent, thus permitting persons to waive the rights recognized by the second one.

With this solid normative foundation, Nino went to tackle some practical issues, such as abortion, capital punishment, and drug regulation. On the former, he proposed a gradualist approach similar to the American one, recognizing rights to the fetuses only when they showed the cognitive and affective capacities necessary for considering them moral persons. As regards death penalty, he was firmly opposed to it—as he was to the criminalization of drug consumption.

While on trip to La Paz, Bolivia in 1993 to work on the reform of the Bolivian constitution, Nino had an asthma attack and subsequently died. This tragedy killed a man who appeared to be at the peak of his productivity: the year before he had published two books,[7] served as editor to two others,[8] and had given the manuscripts of a couple more to his friend Owen Fiss, who assumed the responsibility of readying them for publication. The Constitution of Deliberative Democracy and Radical Evil on Trial saw the light in 1996. In the first he developed his "epistemic justification" of deli

Reviews

[Gill · Rating 4 out of 5]

“You would think that a guy named Carlos Nino, from Argentina, would have written his book in Spanish. Turns out he wrote it in English and this is a translation. I have this problem occasionally not just on Amazon but on the Spanish, French, and German language websites as well. They for some reason don't make it clear whether a book is an original or a translation. Sometimes you can see it on the cover art, but I've been burned before. I always want the original if it is available.

That aside this book is an excellent view of the problems of dealing with massive evil after the fact. When a large part of a whole society is involved in genocide, and that is the only way it ever happens, what do you do afterward? You can't punish millions of people. You can't punish half of your army. Even if you tried, they might rebel and bring back the very dictatorship you just got rid of. Do you have trials, summary executions, truth commissions?

Nino looks at several historical instances and does a nice compare and contrast. The bulk of the book is about the situation in Argentina during the Alfonsin administration to which Nino was a senior advisor. There is a long section where Alfonsin explains himself. (I think this part is in the original Spanish.)

None of the options are good. Nothing approaching justice and a sense of closure for the victims is possible after a massive crime. This is something I didn't realize. The punishment of Nazi criminals in Germany and elsewhere was limited to very small numbers and generally little time served. The real task was to construct a democratic Germany respectful of human rights. That was done. As angry as I am about how almost everyone who committed atrocities got away with it, led a happy life, and died peacefully, there really wasn't a choice. Even if there were, the future is more important than the past. Not to forget the past but to prevent such crimes from recurring.

In Argentina events since the writing of the book are mixed. There is a spate of trials going on now (2008) but the criminals are quite old and it is not likely that there will be much satisfaction in seeing a few geezers inconvenienced for a few years before they die. They've already gotten away with it, and they covered their tracks well enough that we'll never know about a substantial fraction of the victims.


One has to credit Argentina for at least making a serious attempt at justice. No other Latin American country has and worldwide it is quite rare. Japan, Russia, and China, to take three of the worst offenders, have never dealt with their crimes. In Russia, they are back to covering them up and glorifying Stalin again after a brief democratic interlude, now ended. In Japan they were only dealt with by the victors. The Japanese, unlike the Germans, still have not admitted any guilt and never went after war criminals on their own.

The big question is whether Argentina can be changed from an authoritarian, clericalist, anti-Semitic country prone to military coups. The size and authority of the military has been reduced substantially and their recruitment and training has been altered to try to prevent the new officer corps from embodying the fascist values of the old military. Only time will tell.

Politically the country remains very divided with a substantial fraction approving of the 1970's coup, including the repression, and opposing the whole human rights movement in Argentina. Unlike Germany where we can be reasonably confident that human rights have deep enough roots not to be dislodged, it is not clear in Argentina if the next economic crisis won't bring back the storm troopers.

Since mass murder of civilians remains popular around the world, this question will come up again and again after each incident dies down. I am afraid this book will be relevant and instructive for a long time into the future.

[Maximo F-M · Rating 3 out of 5]

Really long academic paper on retroactive justice and creating the conditions to move on from a repressive military coup.