Today, the philosophical concepts that govern the development of Law are almost exclusively the work of experts who are inclined to give preponderance to Public Law over Private Law.
However, it would be unfair to blame them.
Most contemporary works of legal philosophy are saturated with economic prejudices such as: a) ” competition is ruinous,” b) “the market is flawed,” “c)” the regulatory intervention of the State is necessary “and d)” only the presence of the State can solve the complexity of the modern world. ”
These commonplaces reflect the preference for the nationalized economy, which invaded the world from 1917 to 1989 when the model of real socialism imploded.
After the collapse of the USSR, the same ideas that led to its collapse have been introduced into the intellectual world through the Frankfurt School whose creators – melancholic Marxists – have adhered to the theories of Hegel, Marx, Freud and Keynes to upset the late capitalism.
They have infiltrated our college faculties — Social, Law, Philosophy and Economic Sciences — as well as the state and clergy. In them the Marxist-Freudian-Keynesian approach has taken root, taught with fruition and fanaticism where no one dares to discuss it to avoid being accused of being academically incorrect despite its obvious errors and totalitarian implications. These graduates then hold important ministerial positions.
During the last 70 years, the avalanche of false economic principles had a huge channel of dissemination in the field of Law by certain self-styled “progressive”, “abolitionist” or “guarantee” jurists.
They are entangled in unfortunate contradictions between tolerance and blackmail.
On the one hand, they affirm tolerance: “in the fight against crime it is necessary to abolish or mitigate criminal law by placing strong limits on the punitive and sanctioning power of the State because criminals are victims of social inequities.” But at the same time and curiously they are intimidating: “fervent supporters of state intervention and control in the private activities of people and companies imposing severe sanctions if they do not act according to the dictates of the Government.”
Not everything must be regulated
Such absurd dichotomy is based on regrettable ideas that are repeated in many political areas of our day where they proclaim that: “to guarantee the common good it is inevitable to adopt measures by the State”, or “the State has the inalienable duty to regulate the economy at the service of the needy ”.
But they never put themselves in the factual situation that “legislator could have written perverse, sectarian, confusing, harmful or simply incoherent norms.” They confuse the Law with Legislation. They ignore that the Law is discovered and, with Hans Kelsen, they believe that the Law is only made by lawmakers.
Modern generations of lawyers do not think that positive Legislation can be fatal to the Economic Order. Therefore, they seek outside legal science the criteria to prosecute the fatal consequences of this deviation in legal thought. In reality, the problem lies in the intimacies of law itself when it is considered autonomous.
It should be reminded that many of the evils of today’s world are not the work of malicious people but of confused idealists.
Many times, the seeds of totalitarian barbarism have been sown by honest and well-meaning intellectuals, who never knew that their intellectual fruits were full of vices and fatal errors that led to servitude and loss of freedom:
Disparity between promotion and imposition
Politicized law and subordinate justice
Spontaneous order vs. subject to orders
The content of the laws determines the economic order
Since 1946, Argentine laws have created and sustained a closed, corporate, unproductive and deficit economy.