The death of a public intellectual.

• Author: Fiss, Owen M.
• Position: Carlos Santiago Nino - Includes bibliography

In 1976 the military seized power in Argentina and, in the name of maintaining order and combating left-wing terrorism, established a heartless and brutal dictatorship that was without parallel in Argentine history. The reign of terror included kidnapping, torture, rape, and murder, and led to the death or disappearance of some 9000 persons suspected or accused of being subversive. In the early 1980's, the generals sought to counter a decline in their support by trying to retake the Malvinas Islands from the British by force, but they failed in that endeavor and were soon defeated at the hands of Margaret Thatcher. Embarrassed by this turn of events and burdened by a deteriorating economy, the generals then decided to relinquish power and call for national elections, always assuming that the presidency would be won by the candidate--a Peronist--who promised to leave them alone.

The election was held in October 1983 and, to the surprise of many, certainly the generals, the Radical Party candidate, Rafil Alfonsin, won. He had campaigned on a platform that promised to bring to justice those responsible for the human rights abuses of the past seven years and he was true to his word. In the spring of 1985, the leaders of the junta were put on trial before a civilian tribunal in downtown Buenos Aires. The spectacle that then ensued absorbed all the energy of the nation, and was an extraordinary event in the history of Argentina and, for that matter, the world. It was not the first time that a successor government put the leaders of a previous regime on trial for human rights abuses, but it was one of the very few times that such a feat was attempted without the assistance of a conquering army.

In the midst of that trial, I, along with a small group of lawyers and philosophers from the United States and England (Ronald Dworkin, Thomas Nagel, Thomas Scanlon, and Bernard Williams), was invited by the government to come to Argentina. I immediately accepted and began to prepare for the trip with a certain measure of eagerness, although, to be perfectly frank, I did not have the least idea what lay in store for me. I did not know the language, I hadn't a clue about the legal system, and my impressions of Argentine history were based entirely on a quick read of Joseph Page's then-recent book on Peron. Among close friends, I was at a loss to explain the purpose of the trip. I also found it difficult to form a concrete picture of our host and the person who had conceived of this odd academic junket--Carlos Nino. When I innocently inquired of Thomas Nagel and Samuel Isaacharoff--the two I always assumed were most responsible for this extraordinary turn in my life--they simply described Carlos as an advisor to the President.

My own image of a presidential advisor was shaped during the Watergate era. At that time I was working for the Committee on the Judiciary for the House of Representatives, which was trying to determine whether there were grounds to impeach President Nixon. I spent a great deal of my time during the summer of 1974 inquiring into the activities of two of the most notorious presidential advisors in American history, John Ehrlichman and Robert Haldeman--dour, cynical political opportunists, who were intensely faithful to Richard Nixon the man, but not to the nation nor even to the office they served. Some ten years later, on that first plane ride to Buenos Aires, interrupted by a short stop on the beach in Rio, I kept wondering who this advisor to President Alfonsin might be. How far would he fall from the American standard? Little, little did I know.

At our first meeting, Carlos bubbled with conversation. There was a warmth and openness that immediately drew me to him. He was curious about his visitors, attentive to their every need, and always in the best of humor. He loved to tease and joke. He seemed to be the embodiment of life itself. These personal qualities immediately distinguished him from his American counterparts (I'll put to one side the chaos and confusion that seemed to emerge spontaneously from his desk). Even more significant was Carlos' love of philosophy. I found in Carlos Nino an advisor to the President who loved ideas--big ideas, abstract ideas, deep ideas, sometimes even strange ideas, but always ideas--and who, by his devotion to speculative thought, distanced himself from everything American, not just the Ehrlichmans and Haldemans of the world, but even our most honorable officials.

Carlos believed in moral truth. He believed that there were certain principles that were right, and others wrong, and that these principles could be used by an individual or a nation for choosing the proper course of conduct. These principles were set forth in The Ethics of Human Rights, first published in Spanish in 1984, revised and published in English in 1991. This belief of Carlos' in the objectivity of ethical judgments was entirely admirable, and also much to my liking, but at times difficult to reconcile with the two other ideas that were foundational for him--a belief in deliberative democracy and the rule of law. What value can democratic politics have if there is an objective moral truth? The same question could be asked about law.

Carlos was not the first philosopher who made his career by embracing a number of contradictory propositions, but like the very best, he openly confronted the contradictions and tried to reconcile them. He was always so honest. The result was his epistemic theory of democracy, which assigned a value to democratic politics because it enlarged the range of interests that would be taken into account in the formulation of public policy. He spoke movingly of "the difficulty each of us has in representing vividly the situations and interests of people very different from ourselves" and saw the democratic process as a means of transcending those limits and achieving a measure of impartiality. For Carlos, democracy was a surrogate of the informal practice of moral discussion and, in a fallible world, democracy was the best means available for discovering moral truth. Similarly, he embraced law as an indication of moral truth and gave it a value insofar, and only insofar, as it was the product of democratic deliberation.

Theories like this are grist for the classroom and academic journals. Indeed, Carlos explored these ideas for over a decade in countless articles in academic journals and in one of his final books, The Constitution of Deliberative Democracy. Remarkably, Carlos did not confine these inquiries to the academy. He also pursued them when he served the President. Carlos conducted his meetings within government as though they were graduate school seminars, analytically tough, but also speculative and broadly inquisitive. He assumed that every participant--even the President--had just...