Let us start by understanding Law as that construction of evolution for the peaceful coexistence of human beings who live in community; That is to say, that kind of "common unity" that brings us together but also contains us and forces us to give ourselves a social organization for the development and development of that community. The State, that construction of evolution that starts from a territory and its population, is built around a cultural identity that then requires a political and legal organization; otherwise, we would only be a bunch of individuals scattered over a territory.
When living in a community there will always be conflicting interests; and much more between the individual and the social. To what extent can the state regulate the exercise of rights without affecting individual freedom and to what extent that individual freedom can be exercised without affecting the community as a whole. Let us begin with a properly Christian concept, taking into account that Christianity has left in humanity something that transcends the sphere of the confessional and that has to do with a culture; a reason for being and living. That concept is none other than respect for one's neighbor, consideration for the other, in addition to ourselves. Translated to the legal world, this was translated into the various declarations of rights considering the person as the center of dignity and subject recipient of rights and obligations.
The science of law then emerges, that legal tool that regulates human beings, that is why law is the coercive social order of human actions and with a criterion of justice (Giuseppe Graneris). This criterion of justice takes into consideration giving each person what corresponds to them for their actions, with which we arrive at the possibility of sanction. This sanction evolves in such a way that its application is through organs that the State itself places at the service of the community. Once again, State and Community, not separated but together, imposing the law for the maintenance of social peace and thus safeguarding the interests of the whole. In our case, the law cannot be capricious or violate rights and guarantees enshrined in the National Constitution, our Supreme Law that establishes the political and legal organization of the Nation. Rights and guarantees are enshrined there that cannot be affected by any law, even if voted by a majority in the National Congress.
However, how do we analyze these rights and guarantees; that is, on their own, only in their wording and solitary application, or taking into account the purposes and objectives set forth in the constitutional norm itself? I believe that its articles must be interpreted based on these parameters, which are expressed in its preamble. This means that our rule of law and the National Constitution must have as permanent objectives, to establish the union, strengthen justice, consolidate peace, provide for defense, promote well-being and ensure freedom.
Based on this, specific rules are drawn up that are generated by the social interest, even reaching penal rules that deprive a subject of his freedom due to his antisocial and anti-legal behavior and that is serious enough for such a sanction. And then the idea of recidivism appears, which is the repetition over time of various antisocial and anti-legal behaviors that seriously affect the guarantees of other citizens and of the entire community. Because the guarantees are not only intended to protect the accused from repressive excesses (and it is welcome that this protection is so), but also to protect the rest of the individuals from the criminal behaviors of which they could be the object. Because when the exercise of the individual guarantees of some affects those of others, then something fails in its application; even more so when the affected party is the public interest represented by the general objectives mentioned in the preamble of our CN that put union, justice, peace, defense, well-being and freedom at risk. Thus, the repeat offender is not punished for a previous crime, only that the continued repetition has shown that the previous punishment has been insufficient in the face of the contempt shown by the subject towards the norms of social coexistence, so that the freedom and guarantees of those who live within the law are seriously affected by the action of a subject who shows contempt for his neighbor and for the law.
An individual guarantee cannot be exercised in a way that affects, violates or restricts the freedoms of the rest of society, nor can the State impose rules that violate or restrict individual freedom. For this reason, when the continued repetition of antisocial and unlawful conduct seriously endangers the union, justice, peace, defense, well-being and freedom of a community, over which the State has the duty to care, we would cease to be an organized state and would return to being just a bunch of individuals scattered across a territory, each saving themselves as best they can. For this reason, recidivism is not unconstitutional.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
