Carlos Santiago Nino

Nino studied law at the University of Buenos Aires and at Oxford, where he received his Ph.D. in 1977 with a thesis directed by Profs. J. M. Finnis and A. M. (Tony) Honoré.

Nino began his academic activity in the early 1970s, concentrating on some traditional legal issues, such as the concept of a legal system, the interpretation[?] of the law, the debate between legal positivism and natural law, and the concept of validity (see Notas de introducción al derecho, Buenos Aires, 1973, expanded in Introducción al análisis del derecho, Buenos Aires, 1980). After realizing the need to clarify the normative problems implied by some of those issues, he was lead to embrace a model based on the explicit adoption of principles of justice and social morality, rejecting the predominant German-inspired "dogmatic" approach (see Consideraciones sobre la dogmática jurídica, México, 1974; and Algunos modelos metodológicos de "ciencia" jurídica, Valencia, 1980). This signaled the beginning of his philosophical investigations, which were always oriented to practical issues, and characterized by analytical tendencies. Thus, his need to provide a liberal justification for criminal law practice lead him to moral philosophy, developing an original "consensual" theory of punishment which combined the merits of the retributive and utilitarian (see deterrence) varieties while avoiding their respective difficulties (see Towards a General Strategy for Criminal Law Adjudication, unpublished Ph.D. thesis1977; Spanish translation, Los límites de la responsabilidad penal, Buenos Aires, 1980). Similarly, the problems presented by the characterization of criminal conduct stimulated his work in the field of philosophy of action (see Introducción a la filosofía de la acción humana, Buenos Aires, 1987).

During the early 1980s, after the restoration of democracy, Nino became engaged in politics, serving as personal assistant to President Raúl Alfonsín and as coordinator of his newly created "Consejo para la consolidación de la democracia", an ad hoc committee for constitutional reform. His theoretical activities, however, were not forgotten: in 1984 he published his monumental Ética y derechos humanos (Buenos Aires; English revised translation, The Ethics of Human Rights, Oxford, 1991), dedicated to Alfonsín, where he provided a comprehensive exposition of his moral thought; divided in three parts, it dealt with normative and applied ethics, as well as with meta-ethics. This last field he expanded in a separate volume (El constructivismo ético, Madrid, 1989), where he adopted a constructivist approach that attempted to derive his fundamental ethical principles from the presuppositions of moral discourse, in a manner that put him, as he said, "between Ralws and Habermas". These substantive principles, comprising the nucleus of a theory that aspired to capture the essential components of political liberalism, were the principle of autonomy, the principle of inviolability, and the principle of dignity. The first expressed Nino's conception of the good: those things, and those things only, that were valued by the individual in question. The second imposed deontological restrictions to the perusal of that good, prohibiting the sacrifice of some to achieve the benefit of others. The third principle allowed for individual consent, thus permitting persons to waive the rights recognized by the second one.

With this solid normative foundation, Nino went to tackle some practical issues, such as abortion, capital punishment, and drug regulation. On the former, he proposed a gradualist approach similar to the United States one (but far more sophisticated), recognizing rights to the fetuses only when they showed the cognitive and affective capacities necessary for considering them persons. As regards death penalty, he was firmly opposed to it --as he was to the prohibition of drugs.

While on trip to La Paz in 1993 to work on the reform of the Bolivian constitution, Nino had an asthma attack and subsequently died. This tragedy killed a brilliant man at the peak of his powers: the year before he had published two books (Un país al margen de la ley, Buenos Aires; and Fundamentos de derecho constitucional, Buenos Aires), served as editor to two others (El presidencialismo puesto a prueba, Madrid; and Rights, New York), and had given the manuscripts of a couple more to his friend Owen Fiss, who assumed the responsibility of readying them for publication. The Constitution of Deliberative Democracy and Radical Evil on Trial saw the light in 1996. In the first he exposed with detail his view of deliberative democracy as having an epistemic[?] value; the second is a moving personal description of the military junta trials, providing an extremely interesting account of how a theoretical scholar tackled hot political issues with the utmost commitment and responsibility.

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