Judicial Law Conference

Among the activities that stand out in the Department are the Judicial Law Conferences that are held every year. This year, in which we will have the honor of your participation, the central objective of which is  “Vulnerability, Justice and Law. New Challenges”

• In the year 2008 The first Judicial Law Conference was held, and in that case, its purpose was “Efficiency in the justice system.” On that occasion, we enjoyed a significant qualitative and quantitative presence of various members of the national and international judiciary. The conference was opened by the President of the Supreme Court of Justice of Argentina, Dr. Ricardo Lorenzetti, and closed by the then President of the Council of the Magistracy of Argentina, Dr. Mariano Candiotti, among other prominent figures from the national and international judiciary. Judge Bohdan A. Futey of the United States Federal Court of Claims participated as a speaker. It is also worth noting that the Judicial Law Notebooks collection, which compiles the best Master's theses from graduates of the Master's Program in Judicial Magistracy, was launched during this event. Universidad Austral.

• On the other hand, in the year 2009 The second Judicial Law Conference was held, the central theme of which was, “Selection and removal of judicial magistrates. Present and future”, with the participation of Federal Judge Edward Charles Prado of the Fifth Circuit Court of Appeals of the United States of America.

• In the year 2010 The third Judicial Law Conference was organized, the theme of which was “Science and technology at the service of the Judiciary and the Judicial Law” and were chaired by the president of CONICET, Dr. Marta Rovira. On that occasion, a teleconference was held with the Honorary President of the Justice Management Institute, located in Denver, Colorado, United States of America, Dr. Barry Mahoney.

• The IV Judicial Law Conference was held in the 2011the subject of these “Right to jurisdiction and effective judicial protection”.

• The conferences held in the year 2012 They focused on “Judicial Power, communication and society: judicial journalism; transparency, access to information and communication policy”.

• In the year 2013 The theme of the Conference was “Structure and argumentation in judicial rulings”
• 2014 the topic was “Judicial Responsibilities: Political or Constitutional, Administrative, Civil and Criminal Responsibility.”
• 2015 “Conventionality control and interjurisdictional dialogue”
• On 2016 "Legitimacy and credibility in the justice system"
• 2017 The 10th Judicial Law Conference was held under the theme: "Judicial Precedent: Independence, Predictability and Judicial Activism"
• 2018 The XI Judicial Law Conference had as its central theme: "Social Rights: Concept, effectiveness and problems."
• 2021 The XV Judicial Law Conference had as its central theme: “Interjurisdictional dialogue and control of conventionality.”
• 2023 The XVI Judicial Law Conference had as its central theme: “Vulnerability, Justice and Law. New Challenges”

The aim of these conferences is to enrich the discussion not only with international experiences but also with Argentine institutional perspectives, academic contributions, and best practices related to the judiciary and society. The organizers intend to hold similar Judicial Law Conferences annually to continue addressing various topics that contribute to the improvement of the judiciary, such as applied judicial ethics, the political and institutional role of the judiciary, the institutional framework of the judiciary, and so on.

Conclusions from the 2018 workshops

First workshop: “Conceptual aspects of social rights: content, economic aspects and interdisciplinarity of social rights”

The large turnout and active participation of the workshop attendees demonstrated the relevance of the topic, regarding which the following conclusions were agreed upon:

1. To consider the role of the Judiciary in the operation of Social Rights, three triggers were established that gave rise to the analysis and debate of: 1) How the public policies and the actions of the other branches of government condition and motivate judicial work; 2) Progressivity and non-regression of social rights; and 3) The economic scope and limitations of the ESCR.
2. In this regard, it was concluded that the judge must consider the real interests of both parties, either by hearing them or by granting them limited periods to respond to the action before deciding on the matter. the bilateralization of the process "It is the fairest measure for a solution tailored to the case…"that the action is self-satisfying does not mean that it should not be bilateral."
3. Also the motivation behind the sentences It is a fundamental axis in the search for the reasonableness of decisions, since the argumentation of the reasons clearly reveals the judge's involvement in the special circumstances of the case, determining an active work focused on a precise and fair solution, far from extravagant and irresponsible super-activism.
4. Furthermore, and without disregarding the legal issues imposed by the case, the judge must take into account the reverberation of their failures both in economic and social aspects and avoid becoming a distributing judge who assumes powers that do not belong to him and correspond to other powers of the State.
5. For a better understanding and interpretation of the parties' claims, the judge must obtain the necessary technical information prior to sentencing, through the inter-institutional dialogue and consultation with specific organizations, such as ANMAT in the health field, to ensure that medicines, food, and medical technology are effective, safe, and of high quality.
6. In order to address the constant demand for economic, social, and cultural rights (ESCR) and considering their progressive and non-regressive nature, the necessary means must be provided to ensure compliance with the judgments that decide on them. monitoring and execution.
7. Using the same criteria and in the pursuit of proportionality, the workshop participants agreed on the need to have a Record of Judgments in matters of ESCR, which serves as a guide and reference for the current minimum standard.
8. Likewise, the judge must be aware of the common deviations in claims regarding economic, social, and cultural rights (ESCR) in order to exercise a professional ethical control of the case, preserving the budgetary and contractual balance, focused on the effectiveness and reasonableness of the measure it dictates.
9. Finally, and highlighting the words of Dr. Alfonso Santiago, the participants agreed that the Judiciary is not designed to implement public policies, but it does have the obligation to mobilize and awaken the other powers through the persuasiveness of their rulings.

Coordinators: Verónica Alvarez – Paz Barousse – Matías Morel Quirno – Juan José Rumi – Mara Scarpati

Second workshop: “Conceptual aspects of social rights: content, economic aspects and interdisciplinarity of social rights”

The debate among workshop participants highlighted the complexity of precisely defining the content of social rights from a purely legal perspective. It was pointed out that delimiting their content transcends the strictly legal realm, as it also involves the interaction of various social science disciplines and the adoption of public policies that extend beyond the strictly judicial sphere. In this regard, the need to convene diverse actors in society with functional competence in fulfilling social rights was emphasized, in order to construct a multidisciplinary dialogue to define a minimum normative framework that would allow for the judicial branch to operate effectively. Despite this conceptual difficulty, the workshop attempted to approach a definition of the legal content of social rights, understood as human rights related to the basic social and economic conditions necessary for a dignified life in society.

The attempted definition, however, does not resolve the difficulty of establishing concrete guarantee guidelines, given the breadth, progressive nature, and unique dynamics inherent in social rights. The debate proposed resorting to the principles of real equality of opportunity and reasonableness (more recently specified in constitutional doctrine as the principle of proportionality) in order to define the minimum content of the right in each particular case. Ultimately, it was concluded that it is the task of judges to establish specific guidelines, taking into account the circumstances of each individual case.

The proposed approach deemed it necessary to develop a proper categorization of the minimum content established by jurisprudence regarding the various social rights. Specifically, reference was made to the records on other topics held by the Supreme Court of Justice of the Nation, the Supreme Court of the Province of Buenos Aires, and the Public Prosecutor's and Public Defender's Offices. This registry consists of a systematization of cases that allows for the visualization of the minimum content of the rights involved, from which the principles of progressivity and non-regression apply. Each right has its own specific characteristics: health, education, housing, work, human development, etc. The aim is to systematize and design a true vademecun of standards used in jurisprudence on social rights.

Furthermore, defining social rights requires the use of a burden of proof, and in this regard, it becomes necessary for the judge to demand that the various parties in conflict justify their reasons and, with particular rigor, provide the necessary justification for why they intend to withhold the benefit. This allows for a deliberate decision that contributes to the predictability and effectiveness of the recognition of the right. The baseline should be based on the standards established in the rulings of international bodies that set minimum guidelines regarding the right, especially for the State in question. In conclusion, the need for specific training for judges and lawyers in argumentation was raised in order to reasonably award the benefits claimed.

Social rights in general present a greater degree of the problem of normative indeterminacy. This indeterminacy opens up an interpretive space for the judge to assess whether the benefits provided for in the legislation—or its sub-legal regulations—are suitable, necessary, and proportionate for the satisfaction of the rights involved in the case. This assessment of reasonableness refers to prudential knowledge, which again requires the interaction of legal and extra-legal knowledge to precisely define the required benefit. A new epistemic and dialogical space is opened. Nevertheless, mention was also made of the need to develop precise regulations on mandatory benefits in order to reduce normative indeterminacy and improve their effectiveness.

During the workshop discussions, the need for dialogue among the various stakeholders in the system and the public authorities involved in guaranteeing the fulfillment of social rights at their different levels was emphasized. Mechanisms for citizen participation were also promoted through intermediary civil society organizations and institutional bodies responsible for ensuring legality (Public Prosecutor's Offices, the Ombudsman's Office, the National Audit Office), such as facilitating collective injunctions, class action lawsuits, or representative participation in public policies related to social rights. The necessary link between the individual and the state was highlighted. Open government is crucial for understanding policies promoting social rights in order to establish a standard of compliance that should not be lowered.

In conclusion, it was determined that the indirect beneficiary of social rights is the community as a whole, represented by the national government and the provincial governments. Nevertheless, mention was made of the important role played by intermediary organizations (prepaid healthcare providers, cooperatives, mutual societies) and, especially, the family, in meeting social needs. The workshop revisited the idea proposed by Dr. Úrsula Basset during the XI Judicial Law Conference, which relates to the necessary interdependence of human relationships, which entails theresponsibility for affectionThis responsibility impliesApproaching others (neighbors) from a place of humanity, understanding that we are all vulnerable and in need of care and empathy from others.On this issue, regulatory frameworks were proposed to promote cooperation and mutual assistance to foster social protection.

Another topic addressed in the workshop concerned the actual effectiveness of social rights and the contrast between reality and the rights enshrined in the Constitution. First, it was deemed necessary to have accurate public data and statistics on the social situation. In this regard, social rights are linked to the right to access information, given the complementary nature of human rights.

Effectiveness also relates to the need to define the roles of the legislative and judicial branches in operationalizing social rights. On this point, the conclusion was reached to promote the idea of ​​responsible judicial activism. This characterization of responsible activism can be defined as rulings that include a consequentialist analysis of their decisions and that are feasible to implement. A ruling that does not foresee the consequences is an arbitrary decision. Another characteristic that can define responsible activism is the need to reject extravagant claims. An extravagant claim can be defined as one that exceeds a reasonable standard for the fulfillment of social rights.

Another problem associated with judicial activism is that judges resolve individual cases of those who access the justice system, leaving out of the social rights protection system all those problems linked to situations of structural vulnerability. This raises the question of whether the judiciary should act on the causes of vulnerability or, in other words, whether it should act in response to policy failures. To address this issue, the workshop emphasized the importance of dialogue among the different branches of government. An individual claim to a social right is related to a failure of the state; this claim can be conceived as a preventative measure and, once satisfied, can be redirected to improve other analogous structural situations. In this regard, exhortative judgments that order appropriate preventative measures or declare structural situations of unconstitutionality were valued.

The preceding conclusions attempt to document as faithfully as possible the active participation of all members of the workshop and the various contributions made during the plenary session.

Coordinators: Federico Feldtmann, Claudia Katok, Juan Carlos Ponce, José Virginis, Gustavo Sá Zeichen.

Judicial Law Notebooks