Carlos Nino was born in Buenos Aires, Argentina, on November 3, 1943, and died in La Paz, Bolivia, on August 29, 1993. He received his law degree at the University of Buenos Aires (UBA) in 1967 with honors and his DPhil at Oxford in 1977. Professors Finnis and Honoré were his supervisors and Hart and Skegg his examiners. Nino held a Philosophy of Law Chair at UBA and taught at New York, Yale, and Pompeu Fabra law schools; he was a visiting scholar in Harvard, UCLA, and Freiburg; and a speaker in conferences around the world.
He was also a public intellectual. After finishing his time at Oxford, he returned to Buenos Aires where the bloodiest dictatorship in the history of Argentina was kidnapping, torturing, disappearing, and killing thousands of people. Nino resumed teaching at UBA, became a researcher, and worked as a lawyer. Eventually, he will become together with Malamud Goti and Farrell one of the main legal minds behind Argentina’s transition to democracy in 1983.
He worked for President Alfonsín designing the human rights policies of the transition, providing the arguments to support the historical prosecution of those responsible for the atrocities, and later proposing a constitutional reform from a multiparty advisory body to the President, the Council for the Consolidation of Democracy.
Nino was part of a remarkable group of legal philosophers who gathered at SADAF, an association created to study and produce works from the perspective of analytic philosophy. Some of them had also studied at Oxford: Eugenio Bulygin, Eduardo Rabossi, and Genaro Carrió, who translated Hart’s The Concept of Law to Spanish. All of them, with very few exceptions, were legal positivists and discussed strongly with the authoritarian natural lawyers who supported military dictatorships.
As a professor, he was inexhaustible, staying long after classes or conferences to keep conversations going, no matter the quality of the questions or the age of the interlocutor. He helped many students to become professors of law creating for them jobs, institutions, and international networks.
Carlos Nino’s overall theory of law was expounded in the remarkable number of essays, conferences, articles, and books he was able to publish during his short life. The theory has an architectural design and it starts from a metaethical foundation moving on to normative ethics, political philosophy, constitutional law, legal theory, and legal adjudication. His writing style tended toward the dialogic and polemic, taking the arguments of other authors under their best light to better explain or further expand his own. Thinkers such as Hart, Warnock, Dworkin, Habermas, Alexy, Carrió, Alchourrón, Bulygin, Farrell, Nagle, Fiss, Ackerman, Taylor, and Walzer were some of his counterparts, and some of them were his friends.
The theory starts from Warnock’s notion of the human predicament.1 The combination of scarce resources and infinite human needs coupled with somewhat equal capabilities makes conflict inevitable. Hope lies on empathy, the capacity to put oneself in the place of the other, thus being able to find common ground to coordinate efforts. Ethics is the device we create in order to decrease conflict and increase coordination among people. It works developing discourses that regulate the way conversations administer our conflicts. Nino was a moral constructivist, a term that shows his debt to John Rawls.2
According to Nino, moral discourses are like scientific paradigms in the sense that they are created to solve problems, they expand if successful, and they decline as anomalies grow. The premodern moral discourse, for example, was organized around the authority principle: a person or a group held the capacity to end conflicts by uttering the last word. It prevailed until the world it governed became too complex, giving way eventually to the modern moral discourse (MMD).3
Discourses are incommensurable, there is no higher evaluative standing to choose among them, and they set the normative standard; thus, Nino’s theory is at this level an example of conceptual relativism. Moral evaluation happens within each discourse, and there is nothing to be done when differences arise among people who do not share the same one. Since by necessity moral discourses tend to expand in order to solve conflicts in wider communities, this imperialist drive creates tension on the borders.
The arguments used in MMD have some specific features. These features include generality (in the sense that I cannot say, for instance, that something is right because it is convenient for a certain person), universalizability (in the sense that I have to be willing to make my judgment universal, including against myself), a certain agreement on evidence (the idea about how we understand that a fact takes or does not take place and, correspondingly, the need for some procedural or intersubjective verification of this fact), and publicity (I cannot say something is right in accordance with a principle I cannot make explicit). According to Nino in MMD, we ideally assume that the best decision is the one in which all those affected by the outcome are present; every participant has the same amount of information, the same level of rationality, and the same persuasion skills; and it is reached unanimously.
Assuming those are the regulating principles we should all obey when entering into moral discussions, there are things we cannot say unless we violate the very practice we share. This is what Nino calls a pragmatic inconsistency. In a moral discussion, people assume some common principles. Otherwise, they would not be discussing or at least not discussing in this particular way. And if what is said is in conflict with the premises of the practice, their discourse becomes pragmatically inconsistent.
Thus, once we agree to belong to a community that shares MMD to diminish conflicts and increase coordination, we should accept, if we do not want to be considered pragmatically inconsistent, that some moral principles arise from the premises of the ideal discussion. First, the principle of personal autonomy: each individual should freely decide how to develop his or her life. If I deliberate with somebody else in order to persuade and be persuaded, I cannot force my arguments upon her. Perfectionism is not an option.
Second, the principle of personal inviolability: no one should increase her autonomy diminishing the autonomy of others. I cannot turn my partner into an instrument of my will. This is no other than the harm principle and a Kantian, antiholistic stance.
Third, the principle of personal dignity: the will of others should be respected even if this implies a decrease in her own autonomy. We can only increase our autonomy by diminishing the autonomy of others if they consent. If I do not take seriously what the other person tells me, why would I be speaking with her? It is in this way that we can agree on a contract, for example.
However, this conception of moral deliberation is ideal in at least two senses. Firstly, in the ideal deliberation, all those affected by the result of the discussion are present, which most of the time becomes impossible when the subject is relevant enough and affects a large number of people. Secondly, ideal deliberation requires unanimity, that is, it requires that we have enough time so that all of us who are interested in the outcome try to persuade one another until an agreement is reached, at least temporarily. Not to mention asymmetry of access to relevant information or the rhetorical inequality of the participants.
Are these flaws of real deliberation reason enough to reject it? Let us remember that the deliberative ideal is a critical one; its purpose is not to describe reality but to reveal the normative principles of a social practice. This is why it constitutes a legitimate utopianism with the capacity to suggest and evaluate courses of action.4
The political proposal consists in a deliberative justification of constitutional democracy. In other words, in the level of reality, democracy is the best option to make this ideal effective; it is the imperfect political substitute of the modern ideal of moral deliberation. Thus, we rely on democracy because it reproduces certain conditions of impartiality to help us take better decisions than any other process of collective decision-making. It has epistemic, not ontological, value.
In Nino’s account, democracy approaches ideal deliberation by creating the best political arrangements so that as many opinions as possible are expressed, and the best arguments are heard. Thus, decisions are made with the highest level of agreement available, taking into consideration as much relevant information as possible.
Nevertheless, since democracy is only a substitute to ideal moral deliberation, what makes it imperfect generates several problems. In the first place, not all of us can be present in the process of deliberation. Secondly, since we do not have enough time for unanimity, or are not willing to give minorities too much veto power, we settle for majority rule.
Democratic representation requires the creation of adequate political party systems, electoral mechanisms, mechanisms of parliamentary design, freedom of expression, and access to information. In all these fields, Nino proposed institutional reforms for Argentina and other countries, prominently the replacement of hyperpresidential constitutions in Latin America to parliamentary ones to promote deliberation a more flexible way of dealing with recurrent legitimacy crisis. The proposals he designed were the basis of many of the reforms introduced in the Argentine Constitution in 1994.
Nevertheless, no matter how well designed these mechanisms could be, they do not remove the threats of majority rule, like the possibility that decisions taken by those who win the democratic game violate rights, i.e., the premises on which we justify the democratic system as a whole (the moral principles assumed in the ideal deliberation). Therefore, it is necessary to create an agency that defends democratic deliberative procedures and the substantive principles of the system even against the will of the majority without risking political retaliation. The most important of these mechanisms is the judiciary, specifically its judicial review capacity.
However, this instrument seems at first sight contrary to the principles of deliberative democracy. The elitist idea that only one person (or a few) understands the principles of a constitution better than the people’s representatives is far from the deliberative ideal. Nino proposes three exceptions to the unrestricted respect of the popular will. First, its decisions evidently violate the principles assumed by ideal moral deliberation, and second, judicial review is also justified to control the rules that allow democracy to produce legislation justified by deliberation. Thus, judicial interference is justified according to Nino if it preserves a justified (by the principles) game (the deliberative processes).
There is, however, a third problem. Legal adjudication can change both in time and space, thus threatening the consistency of the language and confusing the expectations of the people about what their rights and duties are. Nino, who was specially worried about the lack of respect for rules in Argentina (what he called the tendency toward anomie) allowed for a third exception, given that they must maintain and protect the consistency of the language of law. Thus, for him to honor a constitution means preserving the social hermeneutical practice it consists of while improving it in accordance with the values that each generation understands are expressed in society’s basic institutional agreement.
Nino was thus able to take a stand in the classic discussion of legal theory between positivism, natural law, and legal realism. Against natural lawyers, he agreed with analytic positivists that the term “law” could be defined in neutral, empirical terms. But if law is a set of rules, it opens up to the realist paradox (what he called radical indeterminacy): if the language of law is ambiguous, vague, its rules are contradictory, and the systems filled with gaps it cannot exercise social control. Nino solved the paradox bringing back ethics into law, showing how law is a province of the moral discourse, how in order to create justified legal decisions lawyers need to resort to moral principles.
The reaction to this solution poses another paradox (what he called the moral superfluousness of law): if ethics is the final arbiter, why do we need law? His answer brings back politics to ethics and law: in modern ethical discussions, the best solution is deliberation, and since the best deliberation we can achieve is through constitutional democracy, law is relevant if it is a product of morally justified, epistemically valuable democratic deliberations.
The three schools of legal thought were bitterly embattled in Latin America not only in academic circles but also politically. Nino’s theory of law, ethics, and politics shows the new generations a way forward that stresses the importance of law as a complex social practice necessarily connected to democracy and the best aspirations of modernity.
The productivity of Nino’s theory is apparent in the way it helped him tackle recurrent and pressing problems of his time and place, mainly the emergence of radical evil in Argentina, incarnated in the 1976 coup d’état and the terrorist dictatorship that ensued. To explain it and to exorcise its demons were Nino’s main task.
The 1976 coup was the sixth in Argentine history. Since 1930, military interventions were welcomed or at least tolerated not only by the people but also by the judiciary. The Supreme Court created the de facto doctrine to provide the military regimes with legitimacy enough to function and their rules validity enough to be enforced. Before stepping down, the last dictatorship established a self-amnesty decree in order to avoid prosecutions. Nino’s theory of democracy as a more legitimate deliberate process allowed President Alfonsín and the democratic judiciary to overrule the decree and the de facto doctrine. His theory of criminal punishment justified the prosecution of those responsible for the atrocities. Nino was thus a key actor in the historical set of trials that started what later would be called transitional justice and the first scholar to produce a theory to explain and justify it, as early as 1983.5
Nino was adamant in pushing for institutional change in order to consolidate the transitions from dictatorships to democratic systems. The need to increase the epistemic quality of politics clashed with old Latin-American traditions of concentration of powers, hyperpresidentialism, corporatism, and antiliberalism. His efforts at institutional change such as his advocacy for a more parliamentary system, an increase in participatory mechanisms, and the democratization of the media are some of his proposals that eventually bore fruit in Argentine law.
Another feature of Latin-American culture is its tendency toward anomie, and Nino was a path breaker in bringing this issue into the conversation, both among scholars (disregard of rules as an obstacle for development and democracy, the relevance of game theory to explain problems of coordination, and the need to increase the legitimacy of the system in order to create enforceable rules) and the public in general (showing the impact of anomic behavior in road safety, the problems that conflicts of interests create in legal scholarship, or the weight of corruption on public policy).
August 29 is lawyers’ day in Argentina to commemorate the passing of Alberdi, the father of the first Argentine Constitution. Nino died on the same day. Alberdi had said that the 1853 Constitution was a transient one. It created a restricted republic to set the stage for a future true one once the conditions allowed. It took more than a hundred years, and Nino was a key player in that transition, no wonder he was celebrated as a public intellectual.6
Warnock GJ (1971), The object of morality. Methuen & Co., London.
Rawls J (1971) A theory of justice. Harvard University Press. Cambridge, Mass.
Nino CS (1991) The ethics of human rights. Clarendon Press, Oxford.
Nino CS (1996) The constitution of deliberative democracy. Yale University Press, New Haven.
Nino CS (1996) Radical evil on trial. Yale University Press, New Haven.
Fiss O (1995) The Death of a Public Intellectual, Yale Law Journal 104:1187–1200. It contains a selected bibliography of Nino’s work.