Crime and the Administration of Justice in Buenos Aires, 1785-1853

5. The Emergence of Republican Penal Discourse in Buenos Aires

KimE — University of Nebraska Press / Page 69 / AUGUST . 31 . 2005 / Crime and the Administration of Justice in Buenos Aires, 1785–1853 / Osvaldo Barreneche 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 [First Page] [69], (1) Lines: 0 to 47 ——— -3.0pt PgVar ——— Normal Page PgEnds: TEX [69], (1) 5. The Emergence of Republican Penal Discourse in Buenos Aires Institutions, laws, reglamentos, and such, derive from the circulation of ideas among other factors. Although many ideas did not find their way into laws in the Río de la Plata, their circulation certainly informed the debates that took place in the last years of the colonial regime regarding changes in the criminal justice system. This chapter explores the diverse components of republican criminal discourse in early independent Buenos Aires. It examines the making of the republican penal discourse and its ideological roots. Lawyers, jurists, and intellectuals of the academia de jurisprudencia and the University of Buenos Aires contributed significantly to its elaboration but not necessarily to its application. Finally, the chapter explores specific issues of criminal law debated during these decades, many of which shaped the emerging penal system during the second half of the nineteenth century. At the beginning of the 1820s, after ten years of institutional experimentation , porteño leaders were disappointed with the outcome of the revolution for independence in the Río de la Plata region. Political disputes, territorial disintegration, economic stagnation, and war reminded them that the road to nationhood was not easy. The constitution was still an ongoing project, while diverse laws and reglamentos had failed to create the necessary conditions for the political organization of the United Provinces of the Río de la Plata (a denomination that eventually evolved into what we know today as Argentina). As a letter published in the liberal newspaper El Argos commented in 1823, “institutions are not consolidated yet,” and this was the cause of instability according to its anonymous author.1 The so-called generation of 1837, intellectuals gathered at the Salón Literario of Buenos Aires during the early years of Rosas’s second governorship, agreed with their porteño predecessors on what constituted barriers for political stability in the region. Esteban Echeverría, one of the founding members of this generation, pointed out: “our society, still covered by infant diapers [in 1810], was not in shape to take advantage of (new political) ideas.”2 KimE — University of Nebraska Press / Page 70 / AUGUST . 31 . 2005 / Crime and the Administration of Justice in Buenos Aires, 1785–1853 / Osvaldo Barreneche 70 emergence of republican penal discourse 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 [70], (2) Lines: 47 to 61 ——— 0.0pt PgVar ——— Normal Page PgEnds: TEX [70], (2) Although intellectually diverse, representatives of both the liberal experiment of the 1820s and the generation of 1837 blamed former Spanish colonial domination in the region for that failure. Praising the significance of English criminal legislation, an editorial by El Argos regretted that the inhabitants of the Río de la Plata region had to deal with laws of another kind:“the jurisprudence that we have inherited from Spain,”which was further defined as“barbarous”in another article.3 Moreover, members of the Salón Literario blamed the earlier criollo lawmakers for attempting to change colonial legal tradition by merely passing new laws based on republican principles. “They cheated themselves [Echeverría pointed out], believing that it was enough to write and pass laws so that these principles could take root in the country.”4 The retrospective evaluation by the generation of 1837 regarding the failure of legislation introduced after the 1810 revolution confirmed what was already known. Contradictions between the colonial legal tradition and republicanoriented principles were detected early on by politicians, jurists, intellectuals, and even officials from other countries in Buenos Aires.5 Intellectuals and jurists criticized partial results of the institutional experimentation through the 1820s and 1830s. While new ideas regarding criminal law reached Buenos Aires during those years, many of these jurists and law students debated and proposed various ways of reorienting the institutional changes under...