Housing Protection in the Province of Buenos Aires and the Supreme Court of Argentina’s Decision: A Missed Opportunity

Abstract

This paper analyzes the declaration of unconstitutionality of Law No. 14,432 of the Province of Buenos Aires by the Supreme Court of Justice of the Nation (C.S.J.N.) and its negative impact on the effective protection of the right to inembargability and unseizability of a single, permanently occupied family dwelling. It argues that this regulation constituted a legitimate and reasonable response to structural inequalities, within the framework of concurrent powers of Provincial States and the National State and in accordance with the prevailing constitutional and conventional block. The opinion of the Procurador Fiscal before the C.S.J.N., in favor of the law’s validity, is interpreted as the expression of a progressive socio-legal interpretation aimed at guaranteeing the social function of property and human dignity. Through the contributions of leading Latin American socio-legal scholars, it becomes evident how the Court’s decision reproduces patrimonialist and formalist logics characteristic of a conservative legal culture that tends to hinder the effective realization of social rights. In addition, it incorporates the new paradigm of private law and the constitutionalization of its regime as from the Civil and Commercial Code of the Nation (Argentina, 2015) [C.C.C.N.], which demands a systematic and integrated interpretation of regulated institutions, in harmony with the principles of dignity and protection of the human person. Finally, it proposes reclaiming the transformative function of counter-hegemonic legalities and the democratizing and inclusive potential of provincial legislation on social rights.