‘The universal rhythm of justice’: the Argentine Supreme Court and labor law before, during, and after Peronism

ABSTRACTThe birth of labor law in Argentina is as intricate as it is fascinating. The emergence of a regulatory mosaic in the country occurred in the shadow of extreme institutional instability and ideological change. This process included the country’s first military coup; the rise of J.D. Perón, under whose aegis labor protections gushed; and the fierce backlash against his regime. In this story, the Supreme Court played a somewhat secondary but significant role, which this article, at the intersection of legal history and judicial politics, explores. The article uses an original dataset of 539 Court decisions in labor disputes from 1935 to 1960. It draws on descriptive statistics, a discussion of the main trends in the Court’s decision making, and network analysis. What emerges from the study is a saga of increasing protection of workers’ rights, punctuated by episodic retraction that did not amount to a denial of them. The Court under Perón was prominent in the vindication of workers’ rights. Even under the more restrictive periods before and after Perón, however, the Court recognized labor law as an emerging field for the protection of workers. While the Court’s work displays this combination of oscillation and permanence in its substantive output, it shows a more radical break in a more symbolic respect. After the coup that deposed Perón, the Court was adamant about neglecting the Perón Court’s role and intervention. This shows that legal ideology can manifest itself in diverging ways, particularly in times of regime and judicial instability. It can emerge in justices’ substantive opinions, but also in the recognition of their previous colleagues’ work.KEYWORDS: Argentine labor lawPeronismlabor law adjudicationSupreme Court of Argentinaregime instability Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1. For recent reviews of works focused on Latin America, see González-Ocantos (Citation2019) and González-Bertomeu (Citation2019).2. For a summary of these discussions concerning Latin America, see ibid.3. The employer could contract insurance.4. The La Plata University, nationalized in 1905 by J.V. González, who then became its president, featured as lectures key figures in the field of labor law, prominently including Alfredo Palacios, Leónidas Anastasi, and Alejandro Unsain (Palacio, Citation2013, 2–4).5. In 1945, the Supreme Court also refused to swear in the members of a newly created national appeals court in the north of the country, ruling that the military government’s decision to create this body exceeded its declared objectives (Tanzi, Citation2005a, 18).6. Since 1994, the Senate must consent again when a federal judge turns 75, and every five years thereafter.7. The demand – partly fueled by the government’s hesitancy to condemn the now defeated Axis during World War II – was based on the statute regulating temporary succession in the absence of both the president and vice-president. The Supreme Court’s president was listed after the leaders of both houses of Congress, but Congress was shut down. The Court indirectly involved itself in this process, partly because the Attorney General, a figure close to the tribunal, accepted a request by the beleaguered de facto president to select new secretaries of state. This did not materialize before elections brought Perón to the presidency. The Attorney General would later be impeached and removed jointly with the Court justices (Pellet Lastra, Citation2001, 97–108; Pugliese, Citation2014, 430–2; Tanzi, Citation2005a, 76–7).8. e.g., Fallos 213:5 (1949); Fallos 216:5 (1950); Fallos 219:5 (1951); Fallos 222:5 (1952); Fallos 225:5 (1953); Fallos 228:5 (1954); Fallos 231:5 (1955).9. Justices R. Colombres, P. Aberastury, and E. Imaz (or Ymaz). Pellet Lastra highlights their ‘technical profile’; the first two had served under the 1955–1958 dictatorship (Pellet Lastra, Citation2001, 236–240).10. While this period began before 1935, in this study it is observed mainly from that year onwards, as explained below.11. The first decisions under the expanded composition were preserved to have further information for comparison with previous periods. The third justice to join the now seven-member Court in 1960 (Imaz) only did so in October. These three justices could not form a majority, but this situation changed in 1962 when an additional appointment was made.12. A decision was coded as favorable to the employee’s claim if the Court granted an appeal by the employee (even partially) or denied an appeal by the employer. A decision was coded as unfavorable to the employee’s claim if the Court granted an appeal by the employer (even partially) or denied an appeal by the employee.13. This criterion was in place since the early 1920s (Mansilla, 1923). As an exception, the Court had confirmed a decision ordering direct payment by refusing to reanalyze the lower court’s interpretation of the legislation (Galindez, 1931).14. Terán said that Catholic teachings were ‘the law of the land’.15. In 1944, the Court had annulled the imposition of a fine by a local office (of Santiago del Estero) for violation of labor regulations. In its view, the office’s claimed objective of defending oppressed workers could not justify the many procedural irregularities it had committed (Compagno, 1944; Grubisic, Citation2016).16. Pellet Lastra cites an exchange from 1946 between the Minister of Justice and Justice Sagarna, who suggested the convenience of such ratification (2001, 117).17. The Court was formed in this case by Justice Casares and two appellate judges acting as justices, since the Perón appointees only joined the Court in August.18. The Court explicitly assigned the courts’ statutory interpretation as much force as legislation had, something unusual in a country steeped in the civil-law tradition.19. The dataset features seven such decisions.20. In period 3, the Court would hear a similar appeal in the case against the lower court’s new decision. The Court sided with the employer (Martínez, 1956). In another decision that the Court considered arbitrary, an appeals court had reopened a dismissed case by calling two witnesses proposed by plaintiff (Koruza, 1947).21. This claim is also made in Tanzi (Citation2006, 53–4).22. Tanzi (Citation2006, 21) criticizes this decision.23. Yet, as noted, even the Perón Court had overturned a few decisions that originally benefitted workers because of their arbitrariness.24. However, in Sosa (1957), the Court seemingly refused to review a lower court’s decision which had ruled that the new regulation could apply retroactively.25. The Court also reaffirmed the view, announced in the previous period (e.g. Guarducci, 1948), that a change in case law after termination did not give the right to request readjustment if the termination payment had been made in accordance with the existing case law (e.g. Arias, 1956; Velardez, 1956) [dismissing employee’s claim].26. The Court was also distinguishing between directly operative constitutional clauses and those in need of legislative activation.27. The Court had not yet made widespread use of the ‘arbitrariness’ doctrine during the years covered by period 1.28. Similarly, Tanzi (Citation2006, 53) cites the de facto President Lonardi’s promises to ‘maintain social achievements.’ He criticizes the Court’s hostile view towards labor law expressed in a handful of cases.29. A similar strategy relating to a different subject and a partially different period is attempted in González Bertomeu (forthcoming, 2023).30. The network does not introduce any nuance considering the degree of similarity in the arguments discussed. Given that the three observed Courts acted within a relatively short time frame, the tendency of courts to disproportionately cite recent decisions can be overlooked. This tendency has been discussed in the U.S. context (Black & Spriggs, Citation2013).31. The Post-Perón I Court, which sat for two and a half years, cited the Perón Court, which sat for eight years, in 6 decisions in the dataset (out of 116). This compares to 43 decisions in which the former cited itself and 63 in which it did not include any citations. These citations are not mutually exclusive.32. Justice J. Oyhanarte (Pellet Lastra, Citation2001, 192, citing; Oyhanarte, Citation1972, 109).33. The Post-Perón II Court (which featured Justice Oyhanarte) cited the Post-Perón I Court in around 50 decisions in the dataset, but it virtually never cited the Perón Court.34. Ibid., 88–9; Collier and Collier, Shaping the Political Arena, 484–6.Additional informationNotes on contributorsJuan F. Gonzalez-BertomeuJuan F. Gonzalez-Bertomeu is affiliated with Conicet, Instituto Gioja, Universidad de Buenos Aires, Buenos Aires, Argentina