Dentro de la ley, todo: La justicia criminal de Buenos Aires en la etapa formativa del sistema penal moderno de la Argentina (review)

During the last two decades, crime, the criminalization process, and criminals have become stars of Latin American social history. A brief look at recent books shows the growing presence of hustlers, inmates, policemen, and pettifoggers. This important change, however, offers a weakness: the role of institutions and of the men and women who are part of them. Osvaldo Barreneche has perceived these lacunae in his study of the emergence of the modern penal system in the city of Buenos Aires from the creation of the Viceroyalty of Río de la Plata (1776) until the promulgation of the national constitution (1853). His interpretative path tries to complement traditional, institution-centered legal history with the more modern and social history concern with subaltern actors in order to understand the different levels of the penal system.

The key hypothesis of Dentro de la ley is that the main features of Buenos Aires' modern judicial system emerged during this transitional period. These include institutional fragility and subordination, police interference in the relationships between civil society and the judicial system, manipulation of the initial stages of the judicial process by high-ranking police officers, and institutionalization of malleable procedures as part of the system. Barreneche believes that these characteristics remain untouched today and act as obstacles to a democratic reform of the judicial system and police force. He underlines the deep continuities between colonial and early republican judicial and police practices. The incorporation of Enlightenment and liberal principles in postrevolutionary justice is understood as part of the composite of penal procedures that combines ideological innovations with particular and more urgent needs of social control.

The first chapters of the book focus on the legal architecture of colonial justice in Buenos Aires and take into account long-term research on Spanish laws from the seventh century until the Novísima Recopilación (1805). This legal corpus, as much as the one specifically produced for the Latin American colonies, was continuously (and selectively) adapted to the necessities of Buenos Aires authorities. In Barreneche's words, it was about "Spanish laws, Buenos Aires procedures" (p. 50). Criminal justice initially rested on colonial institutions—such as the Audiencia—that after 1810 were replaced by an intense judicial experimentation. The book's portrait of the Buenos Aires legal system is much less benevolent than that of traditional Argentine legal history: a caste-based system of punishment and the use of torture were common practices in the Buenos Aires judicial system.

Independence, the author argues, prompted an intense adaptation of colonial law and of institutional experimentation. This process was a curious and ambiguous mix of continuities and changes that are portrayed in the last chapters of the book. In the violent days after the Revolución de Mayo, according to Barreneche, the eternal dichotomy of Argentina's judicial system seems to have been established. On one hand we have the principle of guarantee of individual rights, linked to the new republican and liberal regime and opposed to the fueros. On the other hand we have the claim for efficiency in judicial activities. For Barreneche, the last 150 years have sustained a strong discourse that intended to reduce judges' participation and stimulate and empower the police with this sensitive task. The result is the enlargement of arbitrary policing and impotence of rule of law.

The author has consulted early-nineteenth-century theses and judicial archives at the Universidad de Buenos Aires. This documentation allows Barreneche to ground his main ideas in solid evidence. His methodology consists mainly of the analysis of judicial files pertaining to the understanding of institutional participation of the judicial system in the politics of social control.

The clear and ascetic...