https://orcid.org/0000-0003-2795-4325
Abstract
This article contextualises and examines the trajectory and legacy of Jorge Huneeus, an important nineteenth-century Chilean constitutional law professor and congressman who sought to reconcile important commitments of his generation of Latin American jurists, such as a deep belief in Catholicism and a loyalty to the liberal ideals of his era, revealing the complexities and tensions of a legal culture in transition from a more traditional to a more modern social and cultural environment.
1. Introduction
The historical study of liberalism, which has often succumbed to the temptation to classify the varieties of this complex political and intellectual current into rigid and timeless dichotomies such as “English liberalism” versus “French liberalism” or “individualist liberalism” versus “social liberalism”, has become aware, perhaps under the influence of contemporary trends in intellectual history, of the need to “highlight the ideological complexity and internal variability of liberalism” and to avoid “sweeping generalisations about it”, (Bell, Citation2016, p. 5) inviting us to be conscious of “the internal diversity of liberalism, its national and regional variation, and its polyphonic evolution” (Bell, Citation2016, p. 67). In this sense, Jaksić and Posada Carbó, building on Guerra’s reminder that the Hispanic revolutions of the early nineteenth century were the third great revolutionary wave in the Western world after those of France and North America (Guerra, Citation2004, p. 10), have asserted that understanding Latin American liberalism, in particular, requires “overcoming simple determinisms and delving deeper into the origin and development of the ideas themselves, exploring their sources, mechanisms of diffusion and their spatial and temporal unfolding”, and also “taking seriously those who sought to structure a body of liberal ideas, their texts and the institutions that sought to put them into practice” (Jaksić & Posada, Citation2011, p. 29); an effort that, in their view, involves an “exercise of semantic revision” in order to clarify, among the many actors of each period, who was actually a liberal, and in what sense.
In this regard, it is useful to recall that liberalism in Latin America in the nineteenth century, the age of its birth in the region, had to face various questions, such as what should be its relationship with religion, or how should the educational system be organised in order to fulfil liberal ideals and projects. To these questions, a variety of answers emerged, ranging from rabid anticlericalism to moderate or pragmatic accommodation with Catholic traditions, and from state-centred monopolies on cultural apparatuses to libertarian opposition to state regulation. Moreover, in this space and time, different types of actors coexisted, claiming the category of liberal or being labelled with it, with better or worse arguments. Each of their contributions was situated within a particular configuration of social networks and endowed with different forms of cultural and social capital. The diversity of liberal actors, and the diversity of arguably liberal answers they gave to a few crucial questions, seems to support Bell’s “summative” approach to liberalism, which calls for it to be understood as “the sum of the arguments that have been classified as liberal, and recognized as such by other self-proclaimed liberals, across time and space” (Bell, Citation2016, p. 70).
In order to contribute to a richer understanding of Latin American liberalism in the nineteenth century, I will focus here on the career of Jorge Segundo Huneeus Zegers (Santiago, 1835-1889), a prominent Chilean constitutional law professor and congressman whose professional career, political speeches and academic writings provide a useful introduction to some of the debates that structured the configuration of liberal discourses in Chile during the second half of the nineteenth century. Despite his centrality to his time and place, Huneeus has largely faded from memory, and in recent years - or rather decades - there have been no academic or popular publications on his life or work, either in Spanish or English.Footnote1 The recovery of his intellectual legacy, however, may prove to be a fruitful endeavour for different types of academic audiences. The study of this particular historical figure may appeal to intellectual historians interested in the development of seemingly European or North American ideals and ideas in zones of the Global South where intellectuals sought to emulate and locally adapt political, legal and institutional developments in those areas. It may also appeal to legal historians interested in the professional careers of jurists who were influential in their time and place, especially those neglected by the traditional canon. Finally, it may also be useful to students of religion and politics who are interested in how politicians of particular faiths navigate between their religious commitments and their pursuit of the public good in a context of perceived increasing religious pluralism and secularisation.
The bulk of the text is divided into three sections. I begin by placing Jorge Huneeus in his own historical context. He taught law and served as a congressman in an era, the Liberal Republic (1861-1891), characterised by elite consensus on most fundamental issues, but also by intense tensions and debates about the relationship between church and state, the so-called “theological” questions (Collier & Sater, Citation2004, p. 120). This leads us to the following section, in which I will explore how a Latin American jurist such as Jorge Huneeus, through his teaching and writing on constitutional law and his speeches as a congressman, sought to reconcile important intellectual and ideological commitments of his time, such as, in his case, a simultaneous commitment to Catholicism as the religion of Chilean society and to liberalism as the political project of his age. As we will see in the last of these three sections, his arguably moderate position on this matter gave way to a more radical antagonism against the ability of state authority to interfere in what he saw as the legitimate sphere of autonomy of civil society in the debate over state control of education, encapsulated in the idea of the teaching state (estado docente) (Collier & Sater, Citation2004, p. 191), the other major issue of ideological confrontation among Chile’s intellectual elite in the late nineteenth and early twentieth centuries. In the concluding section, I will briefly reflect on the legacy of Jorge Huneeus and on the importance of understanding the legal culture of the nineteenth century in order to understand the reality of the law today.
2. From legal education to congressional government: the life of Jorge Huneeus
Partly obscured by the mists of time, it seems necessary to emphasise the importance of Jorge Huneeus in his own historical context. Although today he may seem a peripheral figure in the broader context of Latin American intellectuals active in the second half of the nineteenth century, the centrality of his figure in the development of a Chilean constitutional culture was not lost on his contemporaries, who mourned his death and celebrated his achievements, as evidenced by the large and rich book that his former law student and poet, Narciso Tondreau, compiled and published in his memory a year after his death, collecting countless testimonies of admiration for Huneeus and mournful laments for his departure (Tondreau, Citation1890). They remembered him as the first and for a long time the only professor of constitutional law in the country, and particularly as a fatherly teacher who was close to his students, many of whom became judges, congressmen, or important lawyers; and as a parliamentarian who, detached from the electoral passions and party machinations of the time, was known for his thoughtful speeches in Congress and for the thorough legal preparation he demonstrated when justifying his positions on government and legislative matters. It is not difficult to see that his central position within the centralised Chilean legal education of the time, in an era described by Bernardino Bravo Lira as one of “the predominance of lawyers” (Bravo Lira, Citation1998), allowed him gradual but relatively easy access to positions of power in Congress, which then evolved into various positions and roles in the presidential cabinet. Yet his own ability to capitalise on his social and cultural capital and convert it into political capital should not be overlooked.
In this section, I will first briefly examine some family and personal aspects of Jorge Huneeus’s life that are necessary to understand his academic and political career. I will then discuss his activity as a professor of constitutional law and as the author of a treatise on the subject, placing his work in relation to other similar literary products of this period. I will conclude with a brief reference to his parliamentary career, in order to present the context in which some of his interventions in the ideological debates that we will later focus on took place.
Jorge Segundo Huneeus Zegers was born in 1835 from the marriage between two immigrants that rapidly found their way into the Chilean elite, the German merchant Jorge Huneeus Lippman and Isidora Zegers, a young piano composer and performer of Belgian and Spanish ascent. The integration of European immigrant families into the Chilean elite was certainly not unprecedented, but what is remarkable about the case of the Huneeus Zegers family is the speed of their integration. This can be largely explained by the fact that Isidora Zegers, the widow of an English soldier who died fighting for the Liberal side in the Civil War of 1829-1830, managed to cultivate a circle of prominent friends and social relations in her salon thanks to her musical talent and attractive personality. Regular guests included Domingo Sarmiento, the Argentine intellectual and future president of his country; Johann Moritz Rugendas, the German painter and traveller; and Andrés Bello, the Venezuelan grammarian, self-taught jurist and first rector of the University of Chile (Urrutia, Citation1971, pp. 4-7).
While it can be said that the younger Jorge grew up rubbing shoulders with the small elite at the forefront of the intellectual and political life of the country, it must also be added that he proved himself worthy through hard work. Like most of the scions of the elite, he attended the National Institute, where he excelled in his studies; and while studying to become a lawyer, a profession chosen by most talented men of his social class at the time, he simultaneously began teaching mathematics at his former high school. And in a time when dissertations for the Bachelor of Laws degree were often concerned with the technicalities of legal practice, his thesis, entitled “The Legal Condition of Foreigners in Chile in Comparison with England and France”, published in the Annals of the University, showed his interest in adopting a comparative perspective to study fundamental questions about the status of persons, i.e., questions that today we would consider constitutional law questions (Huneeus, Citation1858). At the age of 23, he took the oath before the Supreme Court, which officially made him a licensed lawyer, and he spent the next two years working in the judicial system, first as a court clerk (relator) and then as a substitute judge of first instance.
It was then, at the age of 26, that Jorge Huneeus became the first professor to hold a chair of constitutional law and actually teach the subject in Chile, and the only one to do so for much of the second half of the nineteenth century until his sudden and untimely death from illness in 1889. The Chair of Constitutional and Administrative Law had officially been created in 1853. It had replaced the Chair of the Principles of Legislation, which had been created in 1832 after the course that Andrés Bello had taught in 1830 at the College of Santiago, a private school (Bello, Citation2021).Footnote2 It was not until 1859 that a professor was appointed to the chair, but he was not able to teach regularly. To solve this problem, in February 1861 the University Council, at the behest of the powerful Minister of the Interior Antonio Varas, appointed the young lawyer Jorge Huneeus, by then an experienced high school teacher, as substitute professor of constitutional law.Footnote3 To put this event in a regional perspective, constitutional law began to be taught effectively at both the University of San Marcos in Lima, Peru, and the University of Buenos Aires, Argentina in 1868 (Carpio, Citation1995, p. 226; Tanzi, Citation2011, p. 88).
In March 1866, Jorge Huneeus became the titular holder of the professorship. Years later, in 1888, the name of the chair he held was changed to Positive and Comparative Constitutional Law, reflecting the methodological orientation he had given to his teaching. His classes offered a clause-by-clause exegesis of Chile’s existing constitutional text, the 1833 Constitution adopted after the conservative victory in the 1829 Civil War. But his explanation of the system created by the text was not originalist, to put it in contemporary theoretical terms; rather, his view of the political regime created by the Constitution was deeply influenced by the parliamentary consensus that had emerged among the Chilean political elite, including both conservatives and liberals, in the second half of the nineteenth century. His lessons also included references to the constitutional texts and political regimes of various European and American countries that were considered exemplary in terms of the solidity of their institutions and their political development.
His long tenure on the professorship allowed him to teach Constitutional Law, and thus the existing regime of government and the civil and political rights associated with it, for almost three decades, to everyone who graduated in law from the University of Chile, at that time the only institution in the country legally authorised to award a law degree. In addition to teaching, from which he almost never took a leave of absence, during those years he practised law, worked in the university and educational system, and pursued a political career in Congress that took him to the presidential cabinet.
According to his biographer Mario Correa, from the moment he began teaching constitutional law, Jorge Huneeus began to prepare a monograph that would not only serve as a study text for his students, but would also project his own vision of the proper methodological foundations of this field of knowledge (Correa, Citation1969, p. 110). This led to the publication in 1879 of the first volume of The Constitution before Congress, or Positive Commentary on the Chilean Constitution (Huneeus, Citation1879), a treatise whose second part appeared the following year. After the death of Huneeus, the Council of Public Instruction asked the government to fund a new edition of his works, leading to the posthumous printing of a hitherto unpublished third volume, entitled Studies on Comparative Constitutional Law (Huneeus, Citation1891), in which the author compared the text of the Chilean constitutional text with those of the United States of America, Switzerland, France, England, Brazil, Spain and occasionally those of other Latin American republics.
In order to situate Huneeus’s written work in relation to other similar literary works written in the Southern Cone during the same period, we can start by looking at his own opinions on two works that preceded him in the analysis of the Chilean constitutional text, Elements of Constitutional Public Law by José Victorino Lastarria (1846) and Comments on the Political Constitution of 1833 (1858) by Manuel Carrasco Albano, texts that, in Huneeus’s opinion, were of a “theoretical and critical” nature and did not offer constitutional law “in a very practical sense” (Huneeus, Citation1890, p. 15). It is not surprising that Huneeus was critical of his predecessors; Lastarria himself had also criticised the content of the manuscript dictated by Andrés Bello and used to teach the old Principles of Legislation class, which he denounced for concentrating on explaining the theories of political philosophers rather than critically examining the constitution in force.
We thus have different possible models of pedagogical literature devoted to the intertwined fields of political philosophy, state theory and constitutional law in the historical setting of the mid to late nineteenth century Latin America. Although there is a certain sequentiality to these models, and in the Chilean case the examples follow each other, they do not necessarily displace each other, and it is possible that they can coexist.
One, for example, is devoted to the local reception of modern philosophical theories, often those of late iusrationalism and early liberalism, which they use to provide general explanations of politics, the state and law. It is represented in Chile by Bello’s Principles of Legislation (1830) and in Argentina by Lessons on Constitutional Law (1869), a work prepared by the first professor of the University of Buenos Aires, the Colombian Florentino González, to introduce students to the thought of North American, English and French authors (Tanzi, Citation2011, p. 89).
Another is devoted to critical-ideological commentary on existing constitutional texts and regimes, represented in Chile by the works of Lastarria (1846) and Carrasco Albano (1853); in Argentina by the Comments on the Constitution of the Argentinean Confederation (1853) by Domingo Sarmiento and Studies on the Argentinean Constitution (1853) by Juan B. Alberdi (Dolabjian, Citation2015, p. 158); and in Perú by Constitutional Questions (1854) by Toribio Pacheco (García Belaunde, Citation1999, p. 388).
Yet another, while more concerned with explaining the specific constitutional text of the country and the peculiarities of its historical configuration, does so by presenting it in the best light, to use the terminology of the legal philosopher Ronald Dworkin (Citation1988), offering an interpretation that corresponds to the beliefs and values that the author considers to be the most correct in his own space and time. From here, it is possible to imagine works that reach a higher level of systematisation and abstraction in the presentation of the contents of positive constitutional law, a type of academic literature that appeared in the Southern Cone in the transition between the nineteenth and twentieth centuries. While this is what Huneeus wrote in Chile, it can be argued that this model finds analogous examples in Peru and Argentina in the work of two intellectuals who were not lawyers: in the former case, Manuel A. Fuentes with his Universal Constitutional Law and History of Peruvian Public Law (1874) (García Belaunde, Citation1999, p. 389); in the latter, José Manuel Estrada’s Lessons, published in pamphlet form from 1877 and collected in a book in 1895 (Tanzi, Citation2011, pp. 91-92).
A final point that should be mentioned, but which cannot be explored in depth, is the extent to which the research and writing work carried out by Jorge Huneeus on The Constitution before Congress, in which, according to his own admission (Huneeus, Citation1879, 1:vii), he was assisted by a young law graduate, Luis Claro Solar, influenced the latter to become the first and most prestigious treatise on civil law in Chile at the beginning of the 20th century. Until then, since the promulgation of the Code in 1855, this branch of law had been studied with this legal text itself, as prescribed by the presidential decree that ordered its study, and therefore the only two study texts written in the second half of the 19th century, by José Victorino Lastarria and Clemente Fabres, were nothing more than a summary of the Code itself (Guzmán Brito, Citation1986). The curriculum reform of 1902 at the University of Chile called for a more systematic study of the legal institutions in order to grasp the central elements of the legal institutions, demonstrating a distant inspiration from German legal conceptualism (Álvarez & Manuel, Citation1955). Claro Solar, however, seems to have found inspiration closer to home. Indeed, there are many similarities between the works of Huneeus and Claro, Explanations of Chilean and Comparative Civil Law, the first of eighteen volumes of which was published in 1898 (Claro Solar, Citation1898), in the sense that both took as their starting point the individual provisions of the text, the Constitution in the one case and the Civil Code in the other, as prescribed by the so-called French school of exegesis, but then supplemented the explanation of the text with references to legal practice, comparative doctrine, and an underlying liberal philosophy that took for granted key liberal legal values of the time, such as the protection of individual rights, the guarantee of property, and the sanctity of contracts as an extension of individual autonomy.
The career of Jorge Huneeus in education, apart from teaching, was very active and fruitful. For a number of years he was a member of the Council of Public Instruction, set up by the Secondary and Higher Education Act of 1879 to oversee public education. Having served as general secretary of the University of Chile, Huneeus was elected president of the university from 1883 to 1888, twice defeating the influential liberal historian Diego Barros Arana. From this position he led an important modernisation of the statutes and organisation of the university. He resigned in 1888 in protest at the decision of President José Manuel Balmaceda, the university’s ex-officio patron, to ignore the faculty’s proposal to appoint the conservative civil law professor José Clemente Fabres as Dean of Law, instead appointing José María Barceló, professor of legal practice, the second name on the faculty’s shortlist.
On the political level, Huneeus entered the Chamber of Deputies as a substitute congressman for the legislature of 1861-1864, in the last months of the conservative but, as we have seen, meritocratic Montt administration. This period was marked by political tensions between the president and his opposition, a coalition of conservatives and liberals critical of what they saw as the authoritarianism of Montt and his favoured successor, Antonio Varas. This political juncture favoured the election of figures close to the government, but also the adoption of clearer and more progressive ideological positions than had been possible in what historians have retrospectively called the Conservative Republic (1831-1861). Thus, in the same year that he became a young professor of constitutional law thanks to the intervention of Minister Varas, and perhaps with the help of the same patron, Jorge Huneeus entered Congress for the first time. His biographer, Mario Correa, repeatedly points out that Huneeus entered politics as a liberal, but one who did not formally belong to the existing political clubs or parties of that name, and who did not follow party orders or orientations (Correa, Citation1969, pp. 38-41).
Jorge Huneeus returned to the Chamber of Deputies again as a substitute in 1867, and in 1873 he became the principal holder of a seat, a position he held until 1888. In the latter year he was elected senator, but his term was cut short by his premature death. During his intense legislative career, Huneeus participated in the drafting of the 1875 Statute on the Organisation and Powers of the Judiciary, among other important legislative landmarks of the period. As President Aníbal Pinto’s Minister of Justice, Worship and Public Instruction, he served in the cabinet headed by Antonio Varas as Minister of the Interior during the War of the Pacific with Perú and Bolivia in 1879. Due to the critical circumstances, Varas had returned to the same post from which he had insisted that Huneeus be appointed professor of constitutional law almost two decades earlier.
It was in this ministerial capacity that Jorge Huneeus delivered to the people of Santiago the first news of the soon-to-be-legendary naval battle off the coast of Iquique on 21 May 1879, which turned his former student Arturo Prat, a naval captain who had graduated in law with a thesis on electoral freedom and who had died leading an assault on the enemy, into a myth of the Chilean nation-state. Interestingly, Huneeus died on 21 May 1889, exactly ten years after his famous student. Fortunately, Jorge Huneeus did not live long enough to see the world he had helped to create torn apart by the civil war that broke out between President José Manuel Balmaceda and Congress in 1891 (San Francisco, Citation2007), a conflict that pitted many of his former students, such as Julio Bañados and Valentín Letelier, against each other.
3. A liberal understanding of faith: Jorge Huneeus against the confessional state
Chile was no stranger to the complex and not always linear processes that, during the nineteenth century, accelerated the transition from societies deeply structured by religion at various levels to others that were comparatively more secularised, both in their institutional processes and in their everyday social life. The relationship between church and state, often referred to at the time as the “theological” question, became one of the central ideological-political conflicts of the second half of the nineteenth century in Chile (Serrano, Citation2008). These debates had to take as their starting point the Constitution of 1833, a text that established Catholicism as the state religion and forbade the practice of any other denomination, drafted and enacted after a conservative victory in a civil war. The fact that this constitutional text was difficult to amend perpetuated a situation that had ceased to exist, both ideologically and socially.
Half a century later, when Huneeus was a law professor and congressman, there was less religious fervour in Chilean society and more Lutheran and Anglican immigrants who, as a result of their economic success, had often married into the upper classes. Born into a religiously mixed family, the son of a Lutheran father and a Catholic mother, Huneeus was imbued with both a sincere Catholic faith and an equally sincere belief in the liberal creed of his age. As such, he exemplified the cultural transitions of the era and the tensions and contradictions inherent in them. In this context, his reflections are a valuable testimony to the attempts made at the time to explain the cultural and symbolic transitions that allowed, as Carl Schmitt put it (Schmitt, Citation2009, p. 37), the gradual emergence of our modern theories of the state from systems of thought that were intimately shaped by the theological. With reference to another of Schmitt’s concerns, the multiple forms that Catholicism takes in the political field throughout history (Schmitt, Citation1996), it should be noted that Jorge Huneeus embraced a peculiar style of political Catholicism that combined a deep personal faith and acceptance of the central theological and jurisprudential beliefs of the Catholic Church with an independent attitude as a politician and intellectual, where he tended to opt for solutions that expanded the margins of individual autonomy, even in religious matters. In this sense, his political Catholicism was a liberal Catholicism.
In order to give an account of Huneeus’s liberal Catholicism, I will first examine in broad outline his adherence to the central tenets of the Catholic philosophical tradition. I will then summarise the arrangement that the Chilean Constitution of 1833 established to unite church and state. Finally, I will examine what Jorge Huneeus said and wrote, as a congressman and as a scholar, in relation to the confessional nature of the Chilean state established in Article 5 of the 1833 Constitution.
A first question that needs to be addressed is the extent to which Jorge Huneeus was, as I have argued, a Catholic in the philosophical sense of the term, beyond the mere fact of having formally professed that faith. Since he was a jurist, the question is what was his position on natural law, a central concept in the Catholic intellectual tradition with profound implications for the relationship between divine reason and will and the earthly political order.
In this sense, it is worth noting that Huneeus, like Andrés Bello, a jurist of a previous generation, recognised the existence of natural law, which he also called “Philosophical Law”, within the realm of “objective law”. He did not hesitate to describe it as “Law that exists in itself”, as opposed to “Law created by man”. (Huneeus, Citation1890, 1: 21). For Huneeus, Natural Law differed from what he called Positive, Human or Relative Law by “its nature or origin”. In his view, Natural Law “results from the constitution of our being and from the order established by God himself”; for this reason, he described it as “Divine”, because of its origin, and as “Absolute”, because “it is the same in all times and among all peoples” (Huneeus, Citation1890, 1: 21).
Huneeus also believed that some precepts of Natural Law, among which he mentioned the prohibition of murder or theft and the duty to honour contracts, were “so closely connected with morality” that not only did the legislature not need to promulgate them, it did not even have the power to repeal them (Huneeus, Citation1890, 1: 21). Natural Law, Huneeus concluded, should be for Public Law an “ideal Law which determines the way in which the relations of the authorities with the citizens should be regulated in order to be in conformity with the idea of moral and social justice” (Huneeus, Citation1890, 1: 26).
In sum, and beyond the recognised ductility of the concept, it seems reasonable to conclude from the above that the legal thought of Huneeus was consistent with the conception of law prevailing in the long tradition of Catholic natural law. He therefore deserves to be characterised as a Catholic intellectual; nevertheless, as I have suggested, his political Catholicism was a distinctly liberal one.
In Chile, the relationship between church and state at that time was defined by the Constitution of 1833, promulgated in the name of “Almighty God, Creator and Supreme Lawgiver of the Universe”. It established an arrangement consisting of two elements: the confessional character of the state, which gave the Catholic religion a privileged position within the Chilean legal system; and the right of patronage, which gave the President of the Republic and his advisers a certain control over the Catholic church.
With regard to the confessional state, Article 5 of the Chilean Constitution declared Roman Catholicism to be the religion of the Republic of Chile “to the exclusion of the public practice of any other”, thus placing the majority Catholic faith in a situation of institutional privilege over other religious manifestations. This constitutional declaration had profound legal consequences for the regulation of relevant and sensitive areas of social life, such as the family, the school system, the validity of ecclesiastical jurisdiction and, of course, religious worship.
One consequence of this intimate constitutional union between church and state was that, according to Article 80 of the Constitution, the President of the Republic, on taking office, had to swear an oath, invoking “God our Lord and the Holy Gospels”, that he would “observe and protect” the Catholic religion. Consistently, the constitution reserved a seat for a high cleric on the Council of State, an important advisory body to the president; and freedom of religion or conscience was absent from the short, spartan catalogue of constitutional rights.
On the other hand, and in continuity with the royal patronage exercised by the Spanish monarchs in their American possessions, the Chilean Constitution of 1833 granted the President of the Republic the right of patronage, which gave him a degree of control over the ecclesiastical structure. An important constitutional manifestation of this patronage was that the President, on the proposal of the Council of State and with the approval of the Senate, appointed a wide range of ecclesiastical authorities and officials. Also, as monarchs had done in colonial times, the constitution declared that the president had the power to validate or veto the enforcement of a wide range of papal proclamations and edicts in the territory under his jurisdiction.
This constitutional arrangement was challenged by various forces in the second half of the nineteenth century. Secularist intellectuals wanted to end the union between church and state. Catholics opposed state interference in church affairs. To complicate matters, Lutheran and Anglican immigrants, often openly welcomed by the national elite, expected greater autonomy in the exercise of their own religious beliefs.
It is interesting to note that although Jorge Huneeus was a Catholic in the philosophical sense already mentioned, his position on the confessional character of the Chilean state was critical, demonstrating the depth of his liberal commitments. He expressed these views in relation to two sets of constitutional provisions. The first were those that dealt with the constitutional office of the President of the Republic; the second were those that dealt directly with the confessional character of the Chilean state, mainly Article 5 of the Constitution, which he examined both as a congressman and as a scholar.
His position on the confessional nature of the Chilean state became clear when he dealt with the constitutional regulation of the head of state. Commenting on the article of the Constitution that set out the requirements for the office of President of the Republic, which only required formalities such as being born on Chilean territory or being at least thirty years old, Huneeus warned that, although the text did not say so, in his opinion it was clear that whoever assumed the office should be Catholic. He based his argument on Article 80 of the Constitution. It required the president-elect, on taking office, to swear an oath to “observe” and “protect” the Catholic religion. It was impossible, he wrote, that any constitution could require anyone to swear an oath to “observe a religion which is not his own” (Huneeus, Citation1891, 2:11). However, Huneeus emphasised that since the constitutional text only requires the head of state to “observe” the Catholic religion, “it is clear that such a condition is constitutionally required only to be able to be President of the Republic” (Huneeus, Citation1891, 2:12), giving a restrictive scope to this constitutional duty of religious fidelity.
Article 5 of the Constitution, as we have seen, was the foundation of the Chilean confessional state. Huneeus dealt with it in various ways. As a congressman, he participated in the debate on the bill that became the Constitutional Interpretation Act of 1865, which redefined the scope of the clause in Article 5 that prohibited the “public practice” of any religion other than Catholicism. As a scholar, in The Constitution before Congress he presented an interpretation of Article 5 that showed his critical attitude towards the confessional nature of the State.
In July 1865, the Chamber of Deputies debated a bill interpreting Article 5 of the Constitution, in a chaotic session interrupted several times by calls to order from the public present. Once passed, it declared that “dissidents”, the term used in the bill for those who did not profess Catholicism, were allowed to practise their religion in privately owned buildings and to open private schools to educate their own children. The debate that day shows that the Executive sent this bill, and the Senate quickly approved it, to stop the debate in the Chamber of Deputies on something more ambitious: to reform or even repeal Article 5 and declare freedom of conscience a constitutional right. The executive bill defused this complex debate by offering a compromise solution that maintained the Catholic character of the state but granted greater autonomy and legal certainty to Lutheran and Anglican immigrants who had been practising their religion and educating their children without constitutional safeguards.
At the time, Jorge Huneeus was only acting as a substitute member. Being able to attend the meeting in the absence of the holder of the seat was therefore a great stroke of luck for him. It was an opportunity for him to make public both his particular sensitivity to religious issues, due to his family history, and his critical and instrumental support for the proposal of the Executive. Huneeus, echoing apparently derogatory remarks made by other deputies in previous sessions, declared himself to be “one of those persons” (emphasis added), the “son of one of those mixed marriages”, and also took the opportunity to declare his Catholic, Apostolic, Roman faith (Diario de Sesiones del Congreso Nacional, Citation1865, p. 91). His position at the time of the vote was pragmatic: while the Executive’s bill was not the ideal solution for him, he recognised the limits of what was politically possible. As he put it, “I am content to accept the little that is offered to us, without giving up the aim of achieving the rest later” (Diario de Sesiones del Congreso Nacional, Citation1865, p. 91). However, he did not fail to express his opinion; on the contrary, he asserted that “when the question is considered in the light of the strict principles of public law”, States, being concerned with earthly interests, “cannot have a religion” (Diario de Sesiones del Congreso Nacional, Citation1865, p. 86). He also criticised the executive’s solution from a legal point of view, pointing to the legal weakness of the guarantees provided by a law interpreting the Constitution rather than a constitutional reform. Huneeus lamented that rights as important as freedom of conscience would be regulated “in a law that is subject to infinite variations and irregularities” (Diario de Sesiones del Congreso Nacional, Citation1865, p. 86). On the other hand, he recognised that a law interpreting the Constitution was the quickest solution. Given the cumbersome nature of the constitutional reform process at the time, any outcome would have taken at least five years.
Jorge Huneeus returned to the issue of Article 5 in his academic writings. In The Constitution before Congress, he presented an interpretation of the text that widened the normative space for religious tolerance. Explaining the article that established Roman Catholicism as the religion of the Republic of Chile, Huneeus expressed his conviction that “the scope of the Fundamental Code is limited only to temporal interests” (Huneeus, Citation1890, 1:68-69), from which no reason could be derived to impose a religion on the State. In his view, the only way to interpret this constitutional provision correctly was to understand that it had established Catholicism as the only religion “protected by the Constituted Authorities” (Huneeus, Citation1890, 1:70).
In short, the position of Jorge Huneeus at the time of the publication of his lectures on constitutional law was to advocate “the separation of Church and State, which we accepted in 1865 only in principle and which very few defended at that time” (Huneeus, Citation1890, 1:74-75). For Huneeus, this position was entirely consistent with a deep commitment to Catholicism, for he did not see the union of church and state as beneficial to either. In his words, the right of patronage required “a perfect harmony between political and ecclesiastical authority”, which was “not infrequently difficult to maintain”, resulting in a system in which “neither the State nor the Church gains anything” (Huneeus, Citation1890, 1:75). In his opinion, their separation would take place “more or less in the near future, without the need to hasten a solution that the force of events will impose on the country” (Huneeus, Citation1890, 1:76). He was wrong. It was not until the collapse of the parliamentary regime and the adoption of a new constitution in 1925 that the separation of church and state took place in Chile.
4. A liberal view of knowledge: Jorge Huneeus against state control of education and the professions
Liberalism has never been a homogeneous set of beliefs. Historically, different thinkers and actors have given shape to a wide variety of liberal ideas, programmes and projects. Nineteenth-century Latin American liberalism was no exception (Estefane, Citation2021; Jaksić & Posada, Citation2011). In this context, Jorge Huneeus emerges as an intellectual who was able to articulate a clear theoretical account of his liberal creed, and who sought to translate these high ideals into policy positions dealing with some of the most hotly debated issues of his time. He espoused a liberalism that sought, in his words, to recognise “the greatest possible latitude for individual action, without subjecting it to other restrictions than those demanded by respect for the rights of others and for the interests of the State” (Huneeus, Citation1890, 1:30). These ideas, I argue, allow us to qualify his brand of liberalism as libertarian. In order to present this interpretation of his thought, I will first outline Huneeus’s libertarian creed in his own words. I will then look at how his libertarian ideals were embodied in the political debates of his time, in particular on the meaning of critical constitutional concepts such as the estado docente or teaching state, freedom of education, and the free exercise of learned professions.
It does not seem to stretch the category in question too much to qualify the liberalism of Jorge Huneeus as libertarian, in the sense that it is openly sensitive and averse to state interference in the sphere of free individual choices and the social organisations to which those choices give form. To prove this, and although it is an extensive quotation, it is worth transcribing a paragraph from the “Preliminary Lesson to the Study of Positive and Comparative Constitutional Law”, included by the editors of the second edition of his works. This is what he says about the fundamental principles of the organisation of a state:
In the organisation of sovereign authority it is necessary to bear in mind that it must not become a substitute for the will and legitimate power of individuals, except in cases where they cannot exercise them themselves without danger. It is always necessary to leave the greatest possible scope for individual action, without subjecting it to restrictions other than those required by respect for the rights of others and for the interests of the State. The duty of authority is to protect the spontaneity of thought and action in the individual, not to hinder him by interfering in every act of his life. In other words, it is the duty of authority to maintain the balance between individual forces, which tend towards anarchic independence, and social forces, which tend towards despotic concentration; that is, to reconcile Order with Freedom (Huneeus, Citation1890, 1:30).
As an academic and congressman, Huneeus had the opportunity to take positions based on his libertarian perspective in various important debates of his time, often involving fundamental constitutional concepts. An important area of controversy in Chile, as in many other places at the time, was education. In particular, the concepts of the estado docente or teaching state and the freedom to teach had acquired a controversial and sometimes even partisan use. After describing Huneeus’s understanding of these two fundamental concepts, I will examine his position on a debate that was also linked to the freedom of education, namely the right to the free exercise of the learned professions. In this latter matter, as we shall see, Huneeus went so far as to advocate the free, unregulated exercise of the legal profession.
In the first volume of The Constitution before Congress, Huneeus defined freedom of education in terms similar to those used in Article 3 of the 1879 Statute of Instruction. In his words, it was the right of everyone “to teach what he wants, where he wants, and with the texts or methods he wants” (Huneeus, Citation1890, 1:120). He added that it could be understood in the same way as the freedom to “establish primary and secondary schools or universities” (Huneeus, Citation1890, 1:120). It is worth noting, however, that while the freedom to establish primary and secondary schools existed at the time, the freedom to establish universities was not constitutionally or legislatively recognised in Chile until 1981.
He returned to the subject, this time from the point of view of the concept of the estado docente, or teaching state, in Volume II of The Constitution before Congress. Huneeus reviewed what the Constitution said about public education and concluded that it simply characterised state-funded education as a “preferential concern” of the government and directed Congress to formulate a general plan of education. In short, Huneeus concluded that the concept of an estado docente did not mean a state that directed the goals and controlled the content of all education, as radical intellectuals like Valentín Letelier argued (Letelier, Citation1895, pp. 50–51; 167–68; 173–74). Rather, for Huneeus, it meant simply a state that teaches, a state that provides education; something that “in no way contradicts the freedom of education” (Huneeus, Citation1891, 2:372). Huneeus reminded his readers that freedom of education was one of the constitutional guarantees recognised by the constitutional reform of 1874. This amendment included freedom of education in the section that guaranteed the right to petition, through a brief mention that simply enunciated this freedom, without defining it or explicitly establishing its content or limitations.
Linked to this debate was that on the free exercise of the professions, to which he referred both in his congressional speeches and in his academic writings. In his Discourse on Freedom of Education of 1873, Jorge Huneeus took the floor of the Chamber of Deputies to express his ideas on both freedom of education and the free exercise of learned professions. Huneeus argued that any restrictions on the freedom of private education should be repressive, i.e. ex post, rather than preventive, i.e. ex ante, since the authority should accept “as a general rule that civilised man tends to good and not to evil”, a premise that was incompatible with systems of the preventive type, where “it is assumed that it is necessary to watch over people so that they do not commit crimes: there everything is regulated, everything is under the watchful eye of the authority” (Huneeus, Citation1890, 1:437). Expressing a classic theme of natural law discourse, Huneeus added in this speech that even if a constitution “does not recognise certain rights in man”, such as the right to think and express himself, “this does not mean that he does not have them”, and that no one can take these rights away from him, because it is not the constitution that grants these rights, but God himself (Huneeus, Citation1890, 1:437.
In The Constitution before the Congress, Jorge Huneeus presented his views on the free exercise of professions through his explanation of Article 151 of the Constitution of 1833. This constitutional provision stated that “no type of work or industry may be prohibited unless it is contrary to good morals, safety or public health, or unless the national interest so requires, if a law so declares”. Huneeus explained that this article guaranteed the “freedom of work or industry”, and therefore the freedom of any “profession, art or trade”, and that it set out four hypotheses or situations “in which the prohibition of work or industry may be constitutionally carried out” (Huneeus, Citation1891, 2:362). In his view, the first three restrictions - those relating to morals, safety or public health - were unquestionable, since they were based on the fact that the individual right to pursue the industry of our free choice “cannot be exercised to the detriment of the community or of the country as a whole” (Huneeus, Citation1891, 2:362). The fourth hypothesis, however, seemed problematic to Huneeus because, as he explained in a doubtful manner that seemed to advance themes of twentieth-century legal theory, the concept of national interest “is so elastic that everyone understands it in his own way” (Huneeus, Citation1891, 2:363).
The law that created the University of Chile in 1843 stipulated, in article 17, that “no scientific profession may be practised” without a bachelor’s degree awarded by this institution. In the case of the legal profession, in addition to a law degree from the university, one also had to be expressly authorised by the Supreme Court of the Republic, the only institution legally authorised to confer the professional title of abogado, or lawyer. For Huneeus, this regulation amounted to nothing more than a prohibition on Peter entrusting his legal defence to John “unless he has a law degree” (Huneeus, Citation1891, 2:363). Had he spoken the language of modern economics, he might have called it a monopoly that only benefited the special interest group formed by those who already had a valid law degree.
Huneeus argued that while a title could be required for the exercise of public functions or offices, such a requirement was not justified for the private exercise of such professions. It was an ex ante, preventive interference with individual autonomy, more specifically with the right to work freely, not justified by the protection of good morals, safety or public health. The example chosen by Huneeus to discuss and criticise this interference with the right to work and the freedom to contract, in this case of both the provider and the client of professional services, could not be more paradigmatic. It concerned the most important profession of the elite of the time, the legal profession. Faced with this kind of state intervention in the freedom of the individual, Huneeus argued, in general terms, that state action “should be limited to the administration of general interests which cannot be adequately satisfied by individual action” (Huneeus, Citation1891, 2:363). The requirement of academic qualifications or professional titles for the private practice of liberal professions constitutes an interference in the “relations between the private and the particular, between the one who provides the service and the one who requests it”, which exceeds the legitimate scope of the authority (Huneeus, Citation1891, 2:363).
In addition, Huneeus considered that the prohibition of the free exercise of the professions constituted a violation of the freedom of education guaranteed by Article 12 of the Constitution of 1833, which had recently been reformed as part of an extension of constitutional guarantees promoted by the liberal sectors. In his opinion, the amendment enacted implied “as a precise consequence” the “absolute freedom of the professions” (Huneeus, Citation1891, 2:365). He quoted another congressman, Pedro León Gallo, who, speaking in the Senate shortly before his death, affirmed in defence of the free exercise of the professions that those who study in secondary and higher education do so with the aim of acquiring a certain “knowledge that will provide them with the means to live as comfortably as possible in the exercise of a profession”, an objective that the law should not obstruct without good reason (Huneeus, Citation1891, 2:365).
5. Conclusion
Jorge Huneeus was a figure deeply involved in the intellectual and political life of the second half of the nineteenth century in Chile. The admiration and respect he aroused in his time make it advisable to pay attention to his activity and thought in order to understand how Chilean society, in dialogue with other regions, developed a legal culture of its own. As we have seen, he was an important protagonist in the political and intellectual life of Chile in the second half of the 19th century. His long tenure as arguably the only, or at least the most important, professor of constitutional law in Chile during that period gave him a spotlight that he used to produce a well-crafted treatise on constitutional law that, at the time, pointed the way to the professionalisation of academic literature. He has perhaps been overshadowed in historical memory and contemporary scholarship by other larger-than-life Chilean figures of the second half of the 19th century, such as José Victorino Lastarria, Benjamín Vicuña Mackenna or Diego Barros Arana. In his time, however, he commanded great admiration and respect. He taught several generations of Chilean law students, helping them to understand and accept the constitutional regime in which they lived, which was becoming increasingly parliamentary and culturally modern. Examining the trajectory and legacy of jurists like Jorge Huneeus Zegers allows us to better understand the transitions within legal culture that have shaped our modern age.
Acknowledgements
A previous version of this paper was presented in Spanish at the first Seminar on Constitutional History held on October 4, 2023, at Facultad de Ciencias Jurídicas y Sociales, Universidad San Sebastián, Campus Bellavista, Santiago, Chile. I thank the organizers and participants of this activity for their feedback.
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Fernando Muñoz León
Fernando Muñoz León. is an Associate Professor at the History Department of Universidad San Sebastián. He holds a JSD from Yale and a Ph.D. in History from Universidad de Chile. The author of Introducción a la Historia del Derecho Chileno (Santiago, 2021), his research currently focuses on legal education during the long 19th century.
Notes
1 While some of the specific legal doctrines articulated in his publications are sometimes cited by contemporary Chilean public law scholars, only a few monographs between the late 1960s and the 1990s have examined his parliamentary and university activity in its historical context (Correa, Citation1969; Zelaya, Citation1986; Zelaya, Citation1988; Montenegro, Citation1996). More recently, the constitutionalist Pablo Ruiz-Tagle, in a work in Spanish translated into English, has included a brief characterisation of Huneeus’s two-volume treatise on Chilean constitutional law in his broad overview of Chilean constitutional history. Ruiz-Tagle, Five Republics and One Tradition, 82–85.
2 This course has come to us in the manuscript version written by Ramón Briseño.
3 Varas might have met him on 1856, when he was heading the Ministry of the Interior and Foreign Relations and Huneeus worked in an administrative position while still studying law. Correa, Jorge Huneeus Zegers, 28. A protégé of his former teacher, President Manuel Montt, who himself had been a protégé of the powerful late Minister Diego Portales, Varas understood that an important task of a statesman was to attract talented young people into public service, a field that for Varas, a former rector of the National Institute, included both education and politics.
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