Dialogue with Dictators: Judicial Resistance in Argentina and Brazil

Mark J. Osiel

doi:10.1111/j.1747-4469.1995.tb01069.x

1 Judge on Trial 340, 359, 361 (London: Chatto & Windus, 1993).Google Scholar

2 Examples of such judges, from the Argentine and Brazilian experiences, respectively, are offered by Lawrence Weschler, A Miracle, A Universe: Settling Accounts with Torturers 47 (New York: Pantheon, 1983) (“Weschler, Miracle”), and Alison Brysk, The Politics of Human Rights in Argentina 44 (Stanford, Cal.: Stanford University Press, 1994) (“Brysk, Politics of Human Rights”). The present article examines the decisions of several such judges from both countries.Google Scholar

3 The questions of how we are then to judge such a judge and of when resignation from office is morally required are examined in my forthcoming book, Lawful Atrocity, Tortured Legality: Assessing Judicial Response to Administrative Massacre (New Haven, Conn.: Yale University Press, 1996).Google Scholar

4 Both of the prosecutors and half of the judges on the court that convicted the Argentine juntas had held significant posts in the judicial system controlled by the defendants. Brysk, Politics of Human Rights 248.Google Scholar

5 This story is told by Edward Purcell, The Crisis of Democratic Theory 128–33 (Lexington: University of Kentucky Press, 1973).Google Scholar

6 Enrique Groisman, La Corte Suprema de Justicia dmante la Dictadura, 1976–1983 at 7–8 (Buenos Aires: CISEA, 1989) (“Groisman, La Corte Suprema”).Google Scholar

7 Encouraging judicial resistance to wicked law is only one legitimate aim of legal theory. Such resistance is not the be-all and end-all of legal theory, though some would wish to make it so. Even in an authoritarian regime, judges have ordinary disputes to resolve. The cases that most deeply engage the judge's political and moral attitudes are not the sole testing ground for legal theory. The best legal theory would be one that finds a common footing for resistance to oppression, on one hand, and the law's more conventional concerns, on the other, i.e., sustaining reasonable expectations, implementing legislation, enforcing promises, and so forth. It is possible that a legal theory which was perfectly wonderful from the perspective of fostering resistance to oppression might also weak havoc with other essential aspects of judicial roles.Google Scholar

8 The rationality of this approach is defended by Jon Elster, Ulysses and the Sirens (Cambridge: Cambridge University Press, 1984). In referring to judges under the authoritarian regimes examined here, I employ the masculine pronoun throughout, since all whose opinions I discuss are male.Google Scholar

9 “Politics and the English Language,” in Orwell, A Collection of Essays by George Orwell 156 (Garden City, N.Y.: Doubleday, 1954).Google Scholar

10 Snyder, Frederick, “State of Siege and Rule of Law in Argentina: The Politics and Rhetoric of Vindication,” 15 Lawyer of the America 503 (1984). The present article, which inquires into sources of judicial resistance, will not address a closely related question: How realistic must the prospects for effective resistance be to justify such a judicial strategy, rather than resignation?Google Scholar

11 João Rodriques Cerqueira, H.C. No. 46.881, 52 R.T.J. 160 (S.T.F., 1969).CrossRef Google Scholar

12 This general argument was first developed some years ago in the North American context. See Stuart Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change 13–39 (New Haven, Conn.: Yale University Press, 1974).Google Scholar

13 Snyder, 15 Lawyers of the Americas at 518–19. As I shall show, this view is incompatible with the fact that military leaders thought themselves compelled by demonstrations of judicial independence to implement their most repressive policies by evasion of the normal jurisdiction of civilian courts, i.e., by establishing a separate and otherwise redundant apparatus of state violence.Google Scholar

14 Jose Manuel Saravia, “El Caso Timerman,”La Prensa, 27 Nov. 1979. Professorial apologists in the legal academy made very similar statements. See, e.g., that of Horacio Garcia Belsunce, 9 Anales 115 (1980).Google Scholar

15 Adolfo Gabrielli, La Corte Suprema de Jucticia y la OPinión Publica, 1976–1983 at 64 (Buenos Aires: Abeledo-Perrot, 1986) (“Gabrielli, La Corte Suprema”). Reacting to the President's statement, the Chief Justice announced to the press that “the armed forces have thus understood the fundamental role that courts must play in our political system.”Id. Google Scholar

16 Groisman, La Corte Suprema 8 (cited in note 6). Groisman observes that the Court, while legitimating military rule through the appearance of judicial independence, “became, despite its paltry achievements, the last and only recourse for those who could nourish any hope of redress from the government's routine arbitrariness.”Id. at 41.Google Scholar

17 Arguments that preserving judicial independence requires retaining such judges were offered by Horacio Lynch, “El Gobierno de Los Jueces o los Jueces Tambi'en Gobieman?”La Nación, 5 Oct. 1983, and Dardo Perez Guilhou, Los Jueces de Facto (Buenos Aires: Ediciones Depalma, 1983); Jorge Francisco Cholvis, “Jueces con Investidura de facto,” D La Ley 1033 (1983).Google Scholar

18 Groisman, La Corte Suprema 39. Its first serious discussion in the jurisprudential literature arose regarding the famous “grudge informer” cases in postwar West Germany, over which Hart and Fuller (and many later jurisprudents) sparred.Google Scholar

19 Juan Linz, “An Authoritarian Regime: Spain,” in E. Allardt & Y. Littunen, eds., Cleavages, Ideologies and Parties (Helsinki: Academic Press, 1964); see also José J. Toharia, “The Spanish Judiciary: A Sociological Study” (Ph.D. diss., Yale University, 1974).Google Scholar

20 I here adopt the pragmatic approach to political and legal theory recently defended by Marion Smiley, Moral Responsibility and the Boundaries of Community: Power and Accountability fiom a Pragmatic Point of View (Chicago: University of Chicago Press, 1992).Google Scholar

21 This was a central point of contention in the famous exchange between H. L. A. Hart and Lon Fuller. Hart, , “Positivism and the Separation of Law and Morals,” 71 Harv. L. Rev. 593 (1958); Fuller, , “Positivism and Fidelity to Law—A Reply to Professor Hart,” 71 Harv. L. Rev. 630 (1958).CrossRef Google Scholar

22 See, e.g., Michael Martin, The Legal Philosophy of H. L. A. Hart 227–231 (Philadelphia: Temple University Press, 1987) (showing how Hart and Fuller equivocated on whether the connection each alleged to exist between the legal theory he opposed, on one hand, and the fact of judicial capitulation to wicked law, on the other, was conceptual and logically necessary, or historically contingent and probabilistic); arguing for the latter reading of Fuller is Brudney, Daniel, “Two Links of Law and Morality,” 103 Ethics 280 (1992).CrossRef Google Scholar

23 The most notable exceptions are Robert Cover, Justice Accused: Antishuery and the Judicial Press (New Haven, Conn.: Yale University Press, 1975) (Cover, Jutice Accused”) (analyzing the jurisprudential assumptions of Massachusetts judges in the Fugitive Slave cases); and David Dyzenhaus, Hard Cases in Wicked Legal Systems: South Afican Law in the Perspectiue of Legal Philosophy (Oxford: Oxford University Press, 1991) (“Dyzenhaus, Hard Cases”) (exploring the jurisprudential suppositions of South African appellate courts in cases concerning apartheid and the state of emergency).Google Scholar

24 Ronald Dworkin, Taking Rights Seriourly (Cambridge: Harvard University Press, 1978) (“Dworkin, Taking Rights”) (suggesting the reliance of courts in Riggs v Palmer and McPherson v. Bloomfield Motors on nonpositivist accounts of law and judicial role). Legal realists rightly respond, to be sure, that much of importance about deliberation and decision making, such as a judge's unconscious mental processes, is not apparent from the public language of a judicial opinion. I accept aspects of this realist thesis herein. See infra text accompanying notes 236–39.Google Scholar

25 Wonnell, Christopher, “Problems in the Application of Political Philosophy to Law,” 86 Mich. L. Rev. 123 (1987).CrossRef Google Scholar

26 See, e.g., Ronald Dworkin, Law's Empire 62–65, 184–87, 204 (Cambridge: Harvard University Press, 1986) (“Dworkin, Law's Empire”) (disavowing this aspiration and claiming instead to offer only an interpretation of the legal practices of the Anglo-American systems).Google Scholar

27 A “rule,” according to a leading account on which I rely, is an entrenched prescriptive generalization, inevitably somewhat over- and underinclusive vis-à-vis its background justifications, that nevertheless determines judicial decision making within its intended scope, at least presumptively. The presumption is effectively rebutted only when the rule threatens to produce consequences significantly at odds with its background justifications or with the full range of applicable moral norms. See Frederick Schauer, Playing by the Rules 38–52 (New York: Oxford University Press, 1991). On the difference between NIS, principles, and policies, see Dworkin, Taking Rights 22–28, 71–80, 90–100.Google Scholar

28 “Hard” cases should be understood, following Dworkin, as consisting not only of those in which settled rules provide no dispositive answer to the dispute but also cases where settled rules provide a dispositive answer that is deeply at odds with the background justifications for such rules or with the full range of relevant reasons and norms.Google Scholar

29 There are notable exceptions to the ensuing generalizations. Any author faces an insurmountable dilemma here: he may construct his own models of positivism, naturalism, and realism, leaving himself exposed to the valid charge that no one actually holds these views. Alternatively, he can invoke actual theorists as exemplifying such schools of thought, capturing at least some of the diversity of views within each tradition and the gray borders between them. But this approach leaves him vulnerable to the charge that he has crudely oversimplified the debate through abbreviated summaries that are necessarily misleading, especially by grouping under a single label the complex and differing positions of the most sophisticated thinkers. The first of these charges—that one is fighting a (nonexistent) straw man—is surely the more damning of the two, and for that reason I have favored the second strategy. Even so, each theory as depicted here must be treated as something of an ideal type. Hence a particular theorist often will not hold all the views ascribed to the jurisprudential tradition with which he may be generally associated, and within which I discuss his work for present purposes.Google Scholar

30 Consistent with this definition, a legal system may nevertheless authorize courts, at least in some areas, to engage in particularized decision making requiring an all-things-considered assessment of the best result under the circumstances. Even where positive law widely incorporates general principles and informal social norms to this end, positivists insist that the connection between legal validity and moral defensibility is not one of logical necessity, hardwired into the concept of law or of a legal system. Rather, the link remains contingent on whether, and in what manner, lawmakers see fit to assign such morality testing to courts. Soper, Philip, “Legal Theory and the Obligation of the Judge: The Hart/Dworkin Dispute,” 75 Mich, L. Rev. 511 (1977); Lyons, David, “Principles, Positivism, and Legal Theory,” 87 Yale L. J. 424 (1977); Coleman, Jules, “Positive and Negative Positivism,” 11 J. Legal Stud. 139 (1982).CrossRef Google Scholar

31 Hart, 71 Harv. L. Rev. at 597–98, 617–18 (cited in note 21).Google Scholar

32 Joseph Raz, The Authority of Law: Essays on Law and Morality 37–52 (New York: Oxford University Press, 1979) (“Raz, Authority of Law”).Google Scholar

33 Thomas Hobbes, Leviathan (London: Dent, 1974); Jeremy Bentham, Of Laws in General (London: Anthone Press, 1970); John Austin, The Province Of Jurisprudence Determined (London: Weidenfeld & Nicholson, 1954).Google Scholar

34 Legislative enactments are still sometimes viewed as “sovereign” in legal systems, like that of South Africa, where parliamentary supremacy is unchecked by judicial review of the constitutionality of legislation.Google Scholar

35 H. L. A. Hart, The Concept of Law 77–96 (Oxford: Clarendon Press, 1961) (“Hart, Concept of Law”).Google Scholar

36 This may be contrasted with the view of many legal realists, who view legal rules not as imposing legal duties of actual compliance but merely assigning costs for noncompliance, costs that a potential violator may legitimately choose to incur. On the positivist account of law's “internal aspect,” see Hart, Concept of Law 79–88; J. C. Smith, “Obligation in Hart's Theory of Law,”in his Legal Obligation 22, 25–26 (Toronto: University of Toronto Press, 1976) (observing that to adopt the internal point of view with respect to a given law, a judge need not believe that the particular rule is just, merely that it ought to be obeyed, barring exculpatory circumstances also recognized by law).Google Scholar

37 Hart, Concept Of Law 138–44, Raz, Aurhority Of Law 70–77.Google Scholar

38 This view may be contrasted with that of many naturalists, such as Ronald Dworkin and his sympathizer;, who view judicial decision making, especially in “hard cases,” as consisting of the effort to uncover and assess the relative weight of competing principles already present within the legal materials binding on the judge. See also Steven Burton, Judging in Good Faith (New York: Cambridge University Press, 1992) (“Burton, Judging”).Google Scholar

39 Raz, Joseph, “Dworkin: A New Link in the Chain,” 74 Cal. L. Rev. 1111 (1986); G. Marshall, “Positivism, Adjudication, and Democracy,” in P. Hacker & J. Raz, eds., Law, Morality, and Society: Essays in Honor of H. L. A. Hart 132, 142–44 (Oxford: Clarendon Press, 1977).Google Scholar

40 See, e.g., Schauer, “Rules and the Rule of Law,” 14 Harv. J.L. & Pub. Pol'y 645, 676 (1991) (arguing that “there is plainly a close affinity between legal positivism and rule-based decisionmaking”); Scalia, Antonin, “The Rule of Law as a Law of Rules,” 56 U. Chi. L. Rev. 1175 (1989) (contending that the rule of law is impossible unless judges treat preexisting legal rules as conclusively, not merely presumptively, binding on them, even when background justifications may suggest a contrary result).CrossRef Google Scholar

41 Schauer, a leading positivist, thus also embraces the label “formalist,” if taken to mean that judges should decide cases according to preexisting rules, where these exist, even if the result is slightly (but not greatly) wrong, from the perspective of their background justifications or of all relevant reasons and moral norms. “Formalism” is to be condemned, Schauer contends, only if taken to mean a judicial denial of lawmaking discretion and choice, when one faces a legal question that is genuinely unsettled.Google Scholar

42 MacCormick, Neil, “A Moralistic Case for A-Moralistic Law,” 20 Val. L. Rev. 1 (1985); Hart, 71 Harv. L. Rev. at 597–98, 617–18 (cited in note 21). See also Burton, Judging 202–28.Google Scholar

43 Many leading theorists accept the practice of judicial lying and dissimulation in the face of radically unjust law. See, e.g., Dworkin, Taking Rights 326–27 (cited in note 24); Burton, Judging (arguing that “in a generally unjust legal system … one hopes that judges will throw a few well-placed monkey-wrenches into the works. A rule of evil law is only worse for its efficiency”).Google Scholar

44 Ellmann makes such an argument, e.g., about the conduct of the Appellate Division in South Africa. In a Time of Trouble: Law and Liberty in South Africa's State of Emergency 232–43 (Oxford: Clarendon Press, 1991) (“Ellmann, Time of Trouble”). Dyzenhaus offers a naturalist response to Ellmann, however, in “Law's Potential,” 7 Can. J.L. & Soc'y 237 (1992). Observations similar to Ellmann's have long been made regarding the apparent recalcitrance of certain Italian judges in the face of fascism. See Mauro Cappelletti, The Italian Legal System 220 (Stanford, Cal.: Stanford University Press, 1967). Richard Weisberg takes a similar position on the conduct of French lawyers and judges during the Vichy period. “Legal Rhetoric under Stress: The Example of Vichy,” 12 Cardozo L. Rev. 1371, 1405 (1991) (suggesting “the insufficiency of fluid, situational discourse during moments of crisis,” an insufficiency ensuring “that Vichy legal discourse resulted in an outperformance of the racial demands of France's German conquerors”).Google Scholar

45 Bernard Yack coined this term in restating the analysis of Niklas Luhmann. See Yack, , “Toward a Free Marketplace of Social Institutions: Roberto Unger's 'super-Liberal’ Theory of Emancipation,” 101 Harv. L. Rev. 1961 (1988).CrossRef Google Scholar

46 See, e.g., the 1985 decision of the Chilean Constitutional Tribunal, composed of conservative jurists appointed by General August0 Pinochet, holding that the plebiscite contemplated by Pinochet be conducted under the electoral standards established by his 1980 Constitution. That judicial ruling, opposed by lawyers for the executive, proved crucial in permitting the organization of political parties and impeding fraud in the election that forced Pinochet from power. Jeffrey Puryear, Thinking Politics: Intellectuals and Politics in Chile, 1973–1988 at 129–30 (Baltimore: Johns Hopkins University Press, 1994).Google Scholar

47 Justice Julio Oyanarte, “Historia del Poder Judicial,” 6 Todo es Historia, May 1972, at 117.Google Scholar

48 Fuller, 71 Harv. L. Rev. at 657 (cited in note 21).Google Scholar

49 Id. at 658.Google Scholar

50 Id. at 659.Google Scholar

51 Richard Posner, “Courting Evil,” 204 New Republic, 17 June 1991, at 36 (characterizing as “the conventional view” that the German bench and bar retained a strong professional commitment to legal positivism during Nazi rule).Google Scholar

52 See, e.g., Ott, Walter & Buob, Franziska, “Did Legal Positivism Render German Jurists Defenceless during the Third Reich? 2 Soc. & Legal Stud. 91 (1993); Ingo Müller, Hider's Justice: The Courts of the Third Reich 36–59, 68–81, 219, trans. D. Schneider (Cambridge: Harvard University Press, 1991) (“Müller, Hitler's Justice”); Marc Linder, The Supreme Labor Court in Nazi Gemany: A Jurisprudential Analysis (Frankfurt: V. Klostermann, 1987). All three works take pains to refute the assertion that Nazi jurisprudence was positivist, and to establish its debt to variants of natural law.CrossRef Google Scholar

53 See, e.g., Dyzenhaus, Hard Cases (cited in note 23).Google Scholar

54 The sanctions levied against violations of legal duties are also far more severe in most cases than those informally imposed on “merely” moral infractions. There is thus a powerful self-interest in privileging one's legal duties over other duties when they conflict.Google Scholar

55 See, e.g., Ruth Gavison, “Implications of Jurisprudential Theories for Judicial Election, Selection, and Accountability,” 61 U.S.C.L. Rev. 1617, 1626 (1988) (contending that to foster judicial resistance to unjust law, legal theory “needs to give the judge the tools to move from his own judgment concerning the morality of the ‘law’ to the kind of judgment which permits him, under the theory, to disregard it as law” (emphasis supplied).Google Scholar

56 Fuller, 71 Harv. L. Rev. at 638; David Lyons, “Legal Formalism and Instrumentalism—A Pathological Study,”in his Moral Aspects of Legal Theory (New York: Cambridge University Press, 1993). In a recent survey of German historiography on Nazi courts, Markus Dubber defends Fuller's view that positivism fostered formalism among the German bench and bar, facilitating their capitulation (“Judicial Positivism and Hider's Justice,” 93 Colum. L. Rev. 1807, 1825–29 (1993)). The remarks of a highly regarded Justice on the Chilean Supreme Court during Pinochet's rule also suggest this tendency: “We often felt we were not competent to deal with human rights. … A judge's task is to apply the law, not to interpret it.” Cited in Pamela Constable & Arturo Valenzuela, A Nation of Enemies: Chile under Pinochet 131 (New York: W. W. Norton, 1991) (“Constable & Valenzuela, Nation of Enemies”).Google Scholar

57 This latter aspect of formalism is stressed by Schauer, Frederick, “Formalism,” 97 Yale L.J. 509 (1988). Its origins in a prevalent misunderstanding of positivism and its consequences for judicial capitulation to repressive law are stressed in the Latin American context by Claudio Grossman, “El Valor del Derecho,”El Ferrocarril 35, 36 (Nov. 1986). A similar indictment of positivism for encouraging formalist capitulation by South African courts was offered by John Dugard, Human Rights and the South African Legal Order 393–401 (Princeton, N.J.: Princeton University Press, 1980). In a more sophisticated analysis of the South African case law, however, Dyzenhaus, Hard Cases 209–47, blames such capitulation on other aspects of positivism, unrelated to its tendency to encourage formalism.CrossRef Google Scholar

58 Useful defenses of this view include Margaret Radin, “Risk-of-Error Rules and Non-Ideal Justification,” in J. Ronald Pennock & John W. Chapman, eds., Justification: NOMOS XXVIII (New York: New York University Press, 1986) (“Radin, ‘Risk-of-Error’“), and Wonnell, 86 Mich. L. Rev. at 123 (cited in note 25). I shall give considerable attention to such common, judicial misreadings of jurisprudential theories.Google Scholar

59 See, e.g., State v. Dosso (Pakistan, 1958); Uganda v. Commissioner of Prisons, ex Parte Matovu (Uganda, 1966–67); Madzimbamuto v. Lardner-Burke N.O., 3 W.L.R. 1229 (Rhodesia, 1968); Republic v. Mustafa Ibrahim (Cyprus, 1964). These courts conclude that Kelsen's positivism obliged them to accept a coup d'état, by its very success in displacing the prior sovereign and reestablishing public order on a new basis, as creating a new rule of recognition (or grundnorm). But see Brookfield, F. M., “The Courts, Kelsen, and the Rhodesian Revolution,” 19 Toronto L.J. 326 (1969) (arguing that Kelsen's ideas had been opportunistically misappropriated by these courts). For a Brazilian invocation of Kelsen in defense of the military regime's legal authority, see Manoel Goncalves Ferreira Filho, 1 Direito Constitucional Comparado 77–78, 117–19 (São Paulo: J. Bushalsky, 1974), and his Comentários á Constituição Brasileira 24–25 (São Paulo: Edição Saravia, 1977).CrossRef Google Scholar

60 These were federal statutes requiring free states to return runaway slaves to Southern masters.Google Scholar

61 Cover, Justice Accused 1 (cited in note 22), was compelled to admit that many of the most significant abolitionists in the antebellum bar were legal positivists, such as the Garrisonian Wendell Phillips, and that many proslavery judges in the South were prepared to uphold slavery in natural law terms, even after its abolition within positive law. In recognition of such empirical complexity, Cover was ultimately obliged to concede, albeit in a short footnote to a long book, that positivism had been only one among several other, unspecified factors “that determined the complicity” of the antislavery judge in the maintenance of the slave system.Google Scholar

62 This position is argued in Philip Soper, “Choosing a Legal Theory on Moral Grounds,” in J. Coleman & E. F. Paul, eds., Philosophy and Law 31 (New York: Basil Blackwell, 1987) (“Soper, ‘Choosing a Legal Theory’“).CrossRef Google Scholar

63 The Protestant Ethic and the Spirit of Capitalism (London: Unwin, 1930).Google Scholar

64 In fact, the most common strategy of authoritarian rulers for dealing with distrustful courts, as the Brazilian and Argentine cases illustrate, has been to restrict their jurisdiction to hear the disputes most likely to arouse their suspicions about the sincerity of the executive's commitment to the rule of law. Similar restrictions were imposed on courts in Chile under Pinochet, in Spain under Francico Franco, and in the Philippines under Ferdinand Marcos. See, respectively, Constable & Valenzuela, Nation of Enemies 134–35; José J. Toharia, “Judicial Independence in an Authoritarian Regime: The Case of Contemporary Spain,” 9 Law & Soc'y Rev. 475, 486–90 (1975); and José Escobedo, “Judicial Review and National Emergency,” 50 Philippine L.J. 457, 478–79 (1975).Google Scholar

65 Soper, “Choosing a Legal Theory.”Google Scholar

66 There have been both religious and secular versions of this claim. Aquinas exemplifies the former; Gustav Radbruch, the latter. See Radbruch, “Statutory Injustice and Suprastatutory Justice” (1946) (unpublished trans. by A. Kennington & D. Luban).Google Scholar

67 This was Lon Fuller's claim, for instance, regarding the “law” of Nazi Germany, 71 Harv. L. Rev. (cited in note 21).Google Scholar

68 Ronald Dworkin has been the most influential advocate of this view in contemporary jurisprudence. Taking Rights 81–130, 279–90 (cited in note 24); and “‘Natural’ Law Revisited,” 34 U. Fla. L. Rev. 165, 165 (1982) (accepting the designation of “naturalism” to describe his theory of adjudication at that time).Google Scholar

69 Dyzenhaus, Hard Cases 29 (cited in note 23) (summarizing Fuller's view). See also Dworkin, “A Reply by Ronald Dworkin,”in M. Cohen, ed., Rod Dworkin and Contemgorary Jurisprudence 260 (Totowa, N.J.: Rowan & Allanheld, 1983) (“Dworkin, ‘Reply’”).Google Scholar

70 Lloyd Weinreb, “The Complete Idea of Justice,” 51 U. Chi. L. Rev. 752, 804 (1984).Google Scholar

71 This is Dyzenhaus's reading, in Hard Cases, of what the South African courts did in resisting the executive in cases concerning apartheid and the state of emergency.Google Scholar

72 MacCormick, 20 Val. L. Rev. at 10 (cited in note 42).Google Scholar

73 Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends 88 (Princeton, N.J.: Princeton University Press, 1961). Francisco Bastida offers, for Ftanco's Spain, a detailed demonstration of the extent of judicial reliance on naturalist argument to vindicate the legal positions asserted by Franco's lawyers. See his Jwces y Frunquismo: El Pensmiento Politico del Tribunal Supremo en la Dictadura (Barcelona: Ariel, 1986).Google Scholar

74 On the distinction between ideal and nonideal theory, see Radin, “Risk-of-Error Rules” (cited in note 58), and Wonnell, 86 Mich. L. Rev. (cited in note 25).Google Scholar

75 Raymond Wacks hence argued that Dworkinian methods would necessarily lead South African judges to unjust results in cases involving racial issues, given the depth of the legal system's commitment to apartheid. “Judges and Injustice,”S. Afr. L.J. 266 (1984). Dworkin himself concedes this possibility. “Reply” at 247, 249 (cited in note 69).Google Scholar

76 Hart and Dworkin agree in this regard, rejecting Fuller's argument to the contrary. See Dworkin, “Philosophy, Morality, and Law—Observations on Fuller,” 113 U. Penn. L. Rev. 668, 672 (1965).Google Scholar

77 Chile and South Africa stood at one end of the spectrum in the extent to which their rulers were prepared to enshrine repressive policy into positive law. “What marks South Africa out from other massively rights-violating states in the modern world,” noted John Dunn, “is not the comparative scale on which human rights are violated, but the explicitness with which [such] rights are withheld in principle.”Interpreting Political Responsibility 46 (Princeton, N.J.: Princeton University Press, 1990) (“Dunn, Interpreting Responsibility”). Regarding Chile, Fruhling similarly concludes: “From 1978 onwards, a new legal framework emerged which was designed to include every act of power of the government within the limits of a legal rule…. [T]his new legal framework … conveyed the image of an authoritarian rule of law.” H. Fruhling, “Repressive Policies and Legal Dissent in Authoritarian Regimes: Chile, 1973–1981,” 12 Int'l l. Soc. L. 351, 366 (1984).Google Scholar

78 A “policy” establishes “some goal to be reached, generally an improvement in some economic, political, or social feature of the community.” Dworkin, Taking Rights 22 (cited in note 23).Google Scholar

79 Early realists, it is true, had considerable faith in “policy science” and in the capacity of experienced judges to ascertain the public interest, deciding disputes on this basis. But most later realists, particularly those sympathetic with Critical Legal Studies, have not shared this optimism.Google Scholar

80 Duncan Kennedy, “Toward a Critical Phenomenology of Judging,”in A. Hutchinson & P. Monahan, eds., The Rule of law: Ideal or Ideology 141 (Toronto: Carswell, 1987). On this account, the judge resembles Houdini far more than Hercules. See Scott Altman, “Beyond Candor,” 89 Mich. L. Rev. 296, 338 (1990).Google Scholar

81 Karl Llewellyn famously showed how easily this could be done in statutory interpretation, through the “thrust and parry” constituting the professional “framework for maneuver.”The Common Law Tradition 521–35 (Boston: Little, Brown, 1960).Google Scholar

82 Gavison, 61 U.S.C.L. Rev. at 1626–27 (cited in note 55). “Different theories of adjudication may provide criteria for identifying deviations from the ‘proper’ conception of judging. But theories of adjudication abound, and a judge may hold any one of them.”Id. at 1658. She might have added that the judge need not hold the same theory in today's case that he held for yesterday's.Google Scholar

83 One may contrast, for instance, the judicial prose of Richard Posner (which almost inevitably adopts a “one right answer” posture) with his simultaneous jurisprudential writing (embracing much of the realist canon, including the indeterminacy thesis). The Problems of Jurisprudence 454–70 (Cambridge: Harvard University Press, 1990).Google Scholar

84 Perez Zagorin, Ways of Lying; Dissimulation, Persecution, and Conformity in Early Modern Europe (Cambridge: Harvard University Press, 1990); Leo Strauss, Persecution and the Art of Writing (Chicago: University of Chicago Press, 1952).CrossRef Google Scholar

85 John Rawls, A Theory of Justice 133 (Cambridge: Harvard University Press, 1971).Google Scholar

86 For a version of this argument, see, e.g., Guido Calabresi & P. Bobbit, Tragic Choices 20–28, 50, 78–79, 134 (New York: W. W. Norton, 1978); Altman, 89 Mich. L. Rev. Google Scholar

87 Morton Horwitz, The Transformation of American Law: The Crisis of Legal Orthodoxy 193–212 (New York: Oxford University Press, 1992).Google Scholar

88 On the frequent invocation of such arguments during political crises in Western Europe, see Clinton Rossiter, Cnstitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton, N.J.: Princeton University Press, 1964); for Latin American examples, see Brian Loveman, The Constitution of Tyranny: Regimes of Exception in Spanish America (Pittsburgh: University of Pittsburgh Press, 1993).Google Scholar

89 Snyder, 15 Lawyer of the Americas at 509 (cited in note 10).Google Scholar

90 I owe several of the observations in this paragraph to Donald Herzog.Google Scholar

91 These cases have been chosen because in both countries courts showed significant recalcitrance about implementing the rulers' most repressive policies. I focus primarily on the Supreme Court in both instances because its judgments, unlike those of many lower courts and military tribunals, are published and publicly available.Google Scholar

92 The ensuing case studies are presented so as to highlight these three analytical issues. Their centrality to present concerns and the limits of space prevent a strictly chronological account. For such accounts, see Feinrider, Martin, “Judicial Review and the Protection of Human Rights under Military Governments in Brazil and Argentina,” 5 Suff. Transnat'l L.J. 171 (1981); Nadorff, N., “Habeas Corpus and the Protection of Civil and Political Rights in Brazil,” 14 Lawyer of the Americas 295 (1982); and Thomas Skidmore, The Politics of Military Rule in Brazil, 1964–1985 (New York: Oxford University Press, 1988) (“Skidmore, Politics of Military Rule”).Google Scholar

93 For Argentina, the leading case is Ex Parte Sojo, 32 Fallos de la Corte Suprema 120 (1887); for Brazil, see Pinto Ferreira, Curso de Direito Constitucional 372–78 (Rio de Janeiro: Forense, 1980).Google Scholar

94 Carlos Horacio Dominguez, La Nueva Guerra y El Nuevo Derecho: Ensayo Para una Estrategia Jurídica Contrasubversiva 365 (Buenos Aires: Circulo Militar, 1980) (“Dominguez, La Nueva Guerra”). This two-volume work is an official military publication. On other aspects of military rule in Argentina during this period, see generally Peter Waldman & Ernesto Garzón Valdés, El Poder Militar en la Argentina 1976–1981 (Buenos Aires: Editorial Galema, 1982).Google Scholar

95 Nunca Mas: Report of he National Commission on the Disappearance of Persons, Eng. ed., R. Dworkin, intro. (New York: Farrar, Strauss & Giroux, 1986). Estimates of the actual number of disappeared range as high as 30,000. On the reasons for such widely varying estimates, see Alison Brysk, “The Politics of Measurement: Counting the Disappeared in Argentina,” in David Cingranelli. ed., Human Rights and Developing Countries (Greenwich, Conn.: JAI Press, 1994). Under 200 were murdered by the Brazilian regime, though many more were detained and tortured. See Joan Dassin, Torture in Brazil (New York: Vintage Books, 1986) (“Dassin, Torture”).Google Scholar

96 Not only were far fewer murdered by the state in Brazil, but the government more often officially acknowledged the detention of victims. This allowed family members some certainty concerning the victims' whereabouts and continued existence. In Argentina, by contrast, only a small percentage of the state's victims were held “at the disposal of the executive,” i.e., in official recognition of their detention. Even when detention was officially acknowledged, this did not mean, in either country, that abductees, even those detained for many years, were necessarily charged with any criminal offense. Torture of detainees was pervasive in both.Google Scholar

97 On the juntas' efforts at public relations in international arenas, see Iain Guest, Behind the Disappearances: Argentina's Dirty War against Human Rights and the United Nations (Philadelphia: University of Pennsylvania Press, 1990) (“Guest, Behind the Disappearances”); on the counter-efforts of human rights groups, see Sikkink, Katheryn, “Human Rights Issue-Networks in Latin America,” 47 Int'l Organization 411 (1993). No such extensive international efforts were exerted against the Brazilian military regime, particularly during its first few years, when judicial resistance was at its height.CrossRef Google Scholar

98 Dominguez, La Nueua Guerra 556–57 (cited in note 94).Google Scholar

99 See, e.g., the reflections in this regard of Justice Gabrielli, La Corte Suprema (cited in note 15). The Argentine Constitution is closely modeled on that of the United States. Constitutión de la Nación Argentina (1953).Google Scholar

100 For a discussion of the history of this provision in English, see Alejandro Garro, “The Role of the Argentine Judiciary in Controlling Governmental Action under a State of Siege,” 4 Hum. Rts. Q. 311, 317–24 (1983).Google Scholar

101 Estatuto para el Proceso de Reorganización Nacional (25 March 1976), C Anales de Legislación Argentina.Google Scholar

102 On the doctrine governing state of siege within Argentine law, see Germán J. Bidart Campos, 1 Tratado Elemental de Derecho Constitucional 202–7, 515–25 (Buenos Aires: Ediar, 1988).Google Scholar

103 This issue had come to be treated in Argentine jurisprudence as a “political question,” beyond judicial jurisdiction. See Antonio Sofia, 243 Fallos 504 (1959).Google Scholar

104 A salient example would be the Institutional Acts in 1976 and 1977 imposing severe restrictions on the constitutional right (in art. 23) to leave the country in lieu of detention during a state of siege.Google Scholar

105 It can hence be argued that the “rule of law,” when institutionalized through rules of such extreme vagueness, becomes merely a facade for “decisionism,” i.e., the view of law as the executive's will and nothing more. Enrique Groisman, Poder y Derecho en el “Proceso de Reorganización Nacional“(Buenos Aires: CISEA, 1983). The pervasive influence of Carl Schmitt on conservative legal thinkers in Argentina is telling in this connection. Schmitt was the principal legal theorist of the Third Reich.Google Scholar

106 Jaime Malamud-Goti, The Game without End: Terror, Justice and Democratic Transition in Argentina 54 (forthcoming 1995) (describing the intellectual atmosphere in the Law Faculty at the University of Buenos Aires).Google Scholar

107 Dominguez, La Nueva Guerra 628, 651 (cited in note 94) (condemning “rationalistic formalism” and judicial preoccupation with legal technique as “a luxury we cannot afford”).Google Scholar

108 Id. at 585–90, 615, 628.Google Scholar

109 See, e.g., Müller, Hitler's justice 68–81 (cited in note 52).Google Scholar

110 Sagüés, Néstor P., “Valores Jurídicos y Valores Políticos,” 54 El Derecho 176 (1975); Dominguez, La Nueva Guerra 585–90.Google Scholar

111 Dominguez, La Nueva Guerra 479, 573–74.Google Scholar

112 Id. at 474–75, 477, 485.Google Scholar

113 Id. at 479–83.Google Scholar

114 Id. at 470, 483, 489–93.Google Scholar

115 Id. at 353, 490, 641–42 (concluding that subversives, once “brainwashed” by Marxism, are “irrecuperable”).Google Scholar

116 Id. at 549, 567, 572, 593.Google Scholar

117 Id. at 572, 583.Google Scholar

118 Id. at 564, 590 (contending that fighting a revolutionary enemy requires “all-out war and no half measures”).Google Scholar

119 Id. at 564, 572 (denouncing the “excesses of liberalism” in Argentine law and the rampant abuse of individual liberty in ways “contrary to the law's spirit and social objectives”).Google Scholar

120 Id. at 545–47, 573.Google Scholar

121 See Emilio Mignone, Witness to the Truth: The Complicity of the Church and Dictatorship in Argentina, 1976–1983 (New York: Orbis Books, 1986).Google Scholar

122 Dominguez, La Nueva Guerra 566–67 (cited in note 94) (contending that “it is impossible to eliminate the possible need for a secret war, in which those subjected to changes in the law are forewarned of such changes only in a diffuse and incomplete way”).Google Scholar

123 Id. at 572.Google Scholar

124 Id. at 470–71, 549, 560–61 (contending the “judicial understanding of the nature of the international revolutionary phenomenon is indispensable”).Google Scholar

125 Id. at 577. This skepticism about rules reflects the officers' jurisprudential assumptions, i.e., their antipositivism and their affinity for a “pragmatic” version of legal realism.Google Scholar

126 Keith Rosenn, “Judicial Review in Latin America,” 35 Ohio St. L.J. 785, 813 (1974).Google Scholar

127 Antonio Sofia (cited in note 103). See also Carlos Nino's discussion, “On the Exercise of Judicial Rule in Argentina, in Nino & Stotzky, eds., Transitions to Democracy: The Role of the Judiciary 16–25 (1994) (“Nino, ‘Exercise of Judicial Rule’”). On the doctrinal evolution of the Argentine Court toward these conclusions, see Peter Snow, “Judges and Generals: The Role of the Argentine Supreme Court during Periods of Military Government” (presented at 10th World Congress of Int'l Pol. Sci. Ass'n, Montreal, 1973), and Leopoldo Upez Forastier, La Crisis del Estado de Derecho 129–32 (Buenos Aires: Editorial de la Fundación R. Scalabrini, 1982).Google Scholar

128 Nino, “Exercise of Judicial Rule” at 18.Google Scholar

129 Martin Andersen, Dossier Secreto: Argentina's Desaparecidos and the Myth of the Dirty War 286 (Boulder, Colo.: Westview Press, 1993) (“Andersen, Dossier”); Gabrielli, La Corte Suprema 488–91 (cited in note 15).Google Scholar

130 Hence Groisman's conclusion regarding “the frequent disparity between the Court's reasoning,” which seemed to point inevitably toward a liberty-enhancing result, “and its ultimate conclusion.”La Corte Suprema 8 (cited in note 6).Google Scholar

131 See Jacobo Timerman, 300 Fallos 816 (1978), 301 Fallos 771 (1979). This case was highly unrepresentative of how most habeas petitions were treated, however. Lower court judges who asked the Justice Ministry how they should respond to habeas petitions were told not to interfere with military affairs. Brysk, Politics of Human Rights 117 (cited in note 2), reports one such incident.Google Scholar

132 Perez de Smith, 300 Fallos 1282 (1978). This injunction may not appear particularly courageous to laymen, but it did require the Justices to invoke “implied” powers not textually bestowed on them by the Constitution or other law. Such powers were held to be “necessary to preserve the authority” expressly granted to the Court.Google Scholar

133 Carlos Mariano Zamorano, 298 Fallos 441 (1978) (interpreting art. 23 of the Constitution); Benito Moya, B.L.L. (1981).Google Scholar

134 Maria Cristina Ercoli, III Jur. Arg. 3 (1977) (upholding these restrictions “in light of the peculiar historical circumstances and the threat posed to the security of the state by subversive activities”). See also Néstor Navawo, B.L.L. 488 (1981).Google Scholar

135 Eduardo Hilário Silva, 274 Fallos 283 (1969). Germán Bidart Camps, Los Tribunales Militares y la Constitutión 151 (Buenos Aires: Ediar, 1985); Groisman, La Corte Suprema 25–28 (discussing the Court's misapplication of the leading 1962 case, Rodriguez). The burden of proof borne by the prosecutor is significantly lower in military tribunals than in civilian courts.Google Scholar

136 Chapla, 301 Fallos 410 (1979); see also Enrique Groisman, “El debido proceso en la adminstración y su control judicial,” 2 Rev. Assoc. Abogados B.A., Nov. 1979.Google Scholar

137 Evidence against criminal defendants obtained under torture was ruled inadmissible, as a form of compulsory self-incrimination. The constitutional right to free exercise of religion was upheld against the regime's effort, with the support of the Catholic church, to suppress the activities of Seventh Day Adventists.Google Scholar

138 See, e.g., Diaz Colodrero, II Juris. Arg. 356 (1967); Carlos J. Outon, 267 Fallos 215 (1967); Sanchez Sorondo, IV Juris. Arg. 56, 130 La Ley 450 (1968) (describing the Court's task as “safeguarding the essential liberties recognized in the Constitution,” understanding these to include “free criticism of officials for public acts, since this is the very foundation of a republican form of government”).Google Scholar

139 Primera Plana, 7 Jur. Arg. 301 (1970); 301 Fallos 1010 (holding that executive decrees and institutional acts taken subject to a state of siege are constitutional “to the extent that the causes of the emergency continue to exist, i.e., a true state of emergency requiring such measures to overcome it”).Google Scholar

140 Zamorano (cited in note 133); Timerman (cited in note 131) (holding that the executive's “generic statement that Timerman's arrest bears a direct and immediate relationship to the causes prompting the state of siege is insufficient under the reasonableness standard enunciated in Zamorano”).Google Scholar

141 Ley “de facto” 21258.Google Scholar

142 Andersen, Dossier 169 (cited in note 129).Google Scholar

143 On the Court's preference for remanding such cases, rather than ordering release of defendants whose detention had been ruled unconstitutional, see Groisman, La Corte Suprema 21 (cited in note 6).Google Scholar

144 Müller, Hitler's Justice 174–82 (cited in note 52).Google Scholar

145 Lower courts in Argentina, in this regard, sometimes showed greater courage and independence than did the Supreme Court. Groisman, La Corte Suprema 9 (cited in note 6), and Garro, 4 Hum. Rts. Q. at 330 (cited in note 100) (discussing several such cases).Google Scholar

146 Justice Gabrielli, La Curte Suprema 12–13 (cited in note 15), cites this promise of legal continuity as the basis for his decision to serve on the Court during military rule.Google Scholar

147 This method is described and defended in Germán J. Bidart Campos, La Corte Suprema: El Tribunal de lar Garantías Constitutionales 191 (Buenos Aires: Allende & Brea, 1982).Google Scholar

148 One author forcefully argues, for instance, that the reconciliations achieved by the Court were “merely rhetorical,” succeeding only in placing its members in an “inescapable contradiction.” Groisman, La Corte Suprema 13, 8.Google Scholar

149 The Court nevertheless often failed to carry through to the conclusions compelled by its own reasoning, as Groisman observes. Hence its actual judgments often proved less challenging to executive action than the legal standards and attendant modes of reasoning used to reach them. La Corte Suprema 8, 21–23.Google Scholar

150 Guest, Behind the Disappearances (cited in note 97).Google Scholar

151 Dominguez, La Nueva Guerra 556–57 (cited in note 94).Google Scholar

152 Timerman (cited in note 131).Google Scholar

153 Author's interviews. See also Gabrielli, La Corte Suprema (cited in note 15).Google Scholar

154 Gabrielli's political naiveté is evidenced, for instance, in his belief that his continued service on the Supreme Court during military rule was justified by the praise its judgments gamered from public opinion. La Corte Suprema at 79. By “public opinion,” however, it turns out that he means editorials by conservative columnists in the elite press, which was tightly controlled by military censors. To view his remark as evincing political naivete is, of course, to give it its most charitable interpretation. Gabrielli's citations make clear, however, that he regularly read the English-language Buenos Aires Herald. That paper, which was largely uncensored, offered considerable coverage throughout the entire period of military rule of abductions and disappearances, as well as sympathetic reports on denunciations of the regime by international human rights organizations. Willful blindness to, rather than good-faith ignorance of, the regime's most repressive policies would probably offer a more accurate characterization of the mental state of such judges.Google Scholar

155 Institutional Act No. 1 (1964). See Felipe Augusto de Miranda Rosa, Justiça e Autoritarismo 13 (Rio de Janeiro: J. Zahar, 1985) (“Rosa, Justica”).Google Scholar

156 The constitutional provision allowing declaration of a state of siege also imposed a 50-day limit on the emergency powers of the executive. One Supreme Court Justice has suggested that it was this restriction that led the military to assume revolutionary or “constituent assembly” powers, rather than employing the existing constitutional provision. Somes Palmeira, 50 R.T.J. 558, 584 (en banc 1968) (opinion of Justice Victor Nunes). The pertinent provisions of various Brazilian constitutions are described by Oscar Dias Corrjtea, A Defesa do Estado do Direito e a Emergencia Constitucional 64–78 (Rio de Janeiro: Presença, 1980). On the common use of such provisions by military rulers throughout the continent, see Diego Valadez, La Dictadura Constitutional en América Latina (Mexico City: Universidad Nacional Autónoma de Mexico, 1974), and Diego García-Sayán, ed., Estados de Emergencia en la Regíon Andina (Lima: Comisión Andina de Juristas, 1982).Google Scholar

157 Institutional Act No. 1, preamble, stating that the armed forces “promulgate … legal norms without being restricted to standards that antedate the revolutionary victory.”Google Scholar

158 See Euriço de Lima Figueiredo, Os Militares e a Democracia: Análise Estrutural da Ideologia do Presidente Castello Branco (Rio de Janeiro: Edições Graal, 1980). No such influential group of moderate officers, committed to restraining the repression sought by more militant comrades, existed in Argentina at the time of the Dirty War.Google Scholar

159 Particularly important were the civilian political leaders associated with the U.D.N, a political party of the center-right. Skidmore, Politics of Military Rule 21–23 (cited in note 92).Google Scholar

160 Chile under Pinochet would similarly be placed on this end of the spectrum, particularly after its 1980 constitution. Constable & Valenzuela, Nation of Enemies 127–28 (cited in note 56).Google Scholar

161 Jarbas Medeiros, Ideologia Autoritária no Brasil 31–51 (Rio de Janeiro: Fundação Getulio Vargas, 1978) (“Medeiros, Ideologia Autoritária”).Google Scholar

162 Alfred Stepan, The Military in Politics: Changing Patterns in Brazil 57–122 (1971) (“Stepan, Military in Politics”).Google Scholar

163 See, e.g., art. 92, Constitution of 1967.Google Scholar

164 Skidmore, Politics of Military Rule 19; Stepan, Military in Politics 123–88.Google Scholar

165 The civilian allies, including at least initially some on the Supreme Court, sought in turn to maintain harmonious relations with leading officers and a conciliatory tone in criticisms of the regime's policies, so as to hold to a minimum the intervention into civilian institutions desired by hard-liners and to ensure a prompt return to civilian rule. See, e.g., the comments of Justice Aliomar Baleeiro and Chief Justice Luiz Gallotti, in Rosa, Justica 27–28 (cited in note 155).Google Scholar

166 These provisions are quoted at length by Skidmore, Politics of Military Rule 20.Google Scholar

167 The writ of habeas corpus is employed to this end in Brazilian law, giving the writ much broader scope and political significance than it has had in the common law world. Pontes de Miranda, 2 Historia Práctica do Habeas Corpus 23 (1972).Google Scholar

168 4 Projeto “Brasil: Nunca Mais” (As Leis Repressivas) 63 (1985) (cited as “Nunca Mais”) (noting that the military rulers had no reservations about changing the positive law whenever this was considered necessary); Rosa, Justiça 40 (noting the military's “desire to garb even its most arbitrary acts in formal legal dress”).Google Scholar

169 Institutional Act No. 13 (5 Sept. 1969). One well-respected civil rights lawyer claims that hundreds of political activists were executed under this authority. Hélio Bicudo, Direitos Humanos e Ordem Constitutional no Brasil 36 (São Paulo: Editora Atica, 1987) (“Bicudo, Direitos Humanos”).Google Scholar

170 Skidmore, Politics of Military Rule 57 (cited in note 92). See also Rosa, Justica 22. Leading apologists of military rule among legal thinkers included Paulo Sarazate, A Constitução do Brasil ao Alcance de Todos (Rio de Janeiro: Freitas Bastos, 1967); Mario Pessoa, O Direito da Segurança Nacionul (São Paulo: Revista dos Tribunais, 1971); and Manoel Gonçalves Ferreira Filho, Curso de Direito Constitucional (São Paulo: Editora Saraiva, 1978), and his A Democracia Possível 73–76 (São Paulo: Editora Saraiva, 1972) (defending the declaration of a state of siege and additional statutory restrictions on individual liberties as necessary to respond adequately to the revolutionary war being waged against legitimate authority in the Southern Cone states). Useful discussions of the regime's legal ideologists are offered by José Ribas Viera, O Autoritarismo e a Ordem Constitucional no Brasil (Rio de Janeiro: Forense, 1988).Google Scholar

171 Skidmore, Politics of Military Rule 84.Google Scholar

172 Id. This view is shared by Vamireh Chacon, Vida e Morte das Constituições Brasilerias 198 (Rio de Janeiro: Forense, 1987). On the regime's relations with the U.S., see Skidmore, Politics of Military Rule 154–56, and Wayne Selcher, Brazil's Mulrilateral Relations (Boulder, Colo.: Westview Press, 1978).Google Scholar

173 On such factional divisions, see Stepan, Military in Politics 229–66 (cited in note 162); Edmundo Campos Coelho, Em Busca da Identidade: o Exército e a Política M Sociedade Brasileria (Rio de Janeiro: Forense, 1976); Eliezar Rizzo de Oliveira, As Forças: Política e Ideologia no Brasil, 1964–1969 (Rio de Janeiro: Forsense, 1976).Google Scholar

174 Skidmore, Politics of Military Rule 57.Google Scholar

175 Even the most draconian rules on the treatment of suspected subversives, when codified into fixed rules, proved insufficient to satdy the most hard-line elements, who routinely violated such restrictions with impunity. 4 Nunca Mais at 5–6, 8, 14–15, 20, 23, 27, 29, 31–33, 37, 43, 45, 60, 65–66, 81, 90, 102 (discussing violations of the various statutory provisions governing treatment of military prisoners and procedures for their prosecution).Google Scholar

176 Skidmore, Politics of Military Rule 83.Google Scholar

177 Id. Google Scholar

178 Institutional Act No. 1 (1964). Such individuals were also denied the right to hold public office for 10 years. Rosa, Justiça 10–12 (cited in note 155). Several appellate judges were removed from office in this fashion.Google Scholar

179 Institutional Act No. 5 (1968). See the discussion in Bicudo, Direitos Humanos 33–35 (cited in note 169). This modification was later incorporated into the new military constitution of 1967, Art. 181, and preserved in its 1969 revision.Google Scholar

180 Institutional Act No. 2 (1965) (increasing the number of Justices from 11 to 16). The Justices added to the Court soon displayed no less independence from the executive than those already there.Google Scholar

181 Institutional Act No. 5 (1968) (reducing the number again to 11).Google Scholar

182 Ana Lagoa, SNI: Como Nasceu, Como Funciona (São Paulo: Brasiliense, 1983).Google Scholar

183 Alfred Stepan, Rethinking Military Politics: Brazil and the Southern Cone 27–28, 40 (Princeton, N.J.: Princeton University Press, 1988) (“Stepan, Rethinking”).Google Scholar

184 See, e.g, the examples discussed in 4 Nunca Mais 27–33, 43 (cited in note 168).Google Scholar

185 Decree Law 4341, 13 June 1964.Google Scholar

186 The degree of autonomy enjoyed by the SNI, and by those subject to its control within the military intelligence services and the federal and state police, explains the otherwise puzzling fact that over two-thirds of the murderdisappearances occurred during the first year (1973–74) of the presidency of the most liberal, soft-line general to hold office during the entire 21-year regime. The hard-line officers associated with the SNI and its dependent institutions expected that the new, liberal president would further erode the capacity of the military tribunals to punish the regime's perceived enemies, thereby requiring that this task be accomplished by more loyal officers employing more clandestine methods. Hence the rapid increase in “disappearances” at the very time when the public posture of the military president and his regime was sincerely one of “liberalization.”Google Scholar

187 On hard-line opposition to this decision, see John W. F. Dulles, President Castello Branco: Brazalian Reformer 31 (College Station: Texas A&M University Press, 1980) (“Dulles, President Castello Branco”).Google Scholar

188 On this widespread belief among hard-line officers, see Osvaldo Trigueiro do Vale, O Supremo Tribunal Federal e a Instabilidade Político-Institutional 10–13 (Rio de Janeiro: Civilização Brasileira, 1976).Google Scholar

189 The statute in question was National Security Law, Lei no. 1.802, Art. 17. An attorney who defended many accused of violating this statute offers a useful critique: Heleno Claudio Fragoso, Lei de Seguraça Nacional: uma experiencia antidemocrática (Porto Alegre: S.A. Fabris, 1980). Prosecutions under an earlier version of this statute are examined in Reynaldo Pompeu de Camps, Repressão Judicial no Estado Novo (Rio de Janeiro: Achiam, 1982).Google Scholar

190 See the useful discussion in 4 Nunca Mais 5 (cited in note 168).Google Scholar

191 Escola Superior de Guerra, Manual Básica (1983); General Golbery do Couto e Silva, Planejamiento Estratégico (Rio de Janeiro: Editora Americana, 1981); José Alfredo Amaral Gurgel, Segurança e Desenvolvimento (Rio de Janeiro: Civilização Brasileira, 1975); Antonio de Arruda, ESG: História de Sua Doutrina (Sso Paulo: Edições GRD, 1980).Google Scholar

192 Nadorff, 14 Lawyers of the Americas at 309 (cited in note 92).Google Scholar

193 On the predominant influence of positivism on legal education in Brazil, see Medeiros, Ideologia Autoritária 11 (cited in note 161). On the characteristic formalism of legal reasoning, see K. Karst & K. Rosenn, Law and Development in Latin America 57–66 (Berkeley: University of California Press, 1975). A particularly vigorous defense of judicial formalism is offered by Paulo Bonavides, Direito Constitutional 206–13 (Rio de Janeiro: Forense, 1980).Google Scholar

194 See, e.g., Mauro Borges, H.C. No. 41.296, 33 R.T.J. 590 (en banc, 24 Nov. 1964); Miguel Arraes de Alencar, H.C. No. 42.108, 19 April 1965 (S.T.F.); Jose Pursifal Barroso, H.C. No. 41.609 (16 Dec. 1964).Google Scholar

195 See, e.g., Soures de Carvalho, 33 R.T.J. 381 (en banc, 1965).Google Scholar

196 Rayil Peçanha, 216 R. For. 268 (S.T.F., 1966); Dorival Masoi de Abreu, 35 R.T.J. 130 (en banc, 1965); Raimundo Ramos Reis, 33 R.T.J. 617 (en banc, 1965); Tomas de Aquino Petraglin, 35 R.T.J. 476 (en banc, 1965).Google Scholar

197 Rosa, Justiça 22 (cited in note 155).Google Scholar

198 Institutional Act No. 2 (1965).Google Scholar

199 A case reversing the defendant's conviction on this constitutional basis was Obregon Conçalves, 35 R.T.J. 227 (en banc, 1965).Google Scholar

200 Rodriques Cerqueira, H.C. No. 46.881, 52 R.T.J. 160 (S.T.F., 1969).CrossRef Google Scholar

201 The Court initially resisted even the effort to strip it of jurisdiction over constitutional challenges to executive action, on the grounds that the military's revised constitution preserved the longstanding provision guaranteeing that “no law may bar the judiciary from examining any violation of individual right.” Art. 153.Google Scholar

202 Miguel Arraes (cited in note 194); also Francisco Julião, H.C. No. 42.560 (S.T.F., 29 Sept. 1965).Google Scholar

203 Sérgio Cidade de Rezende, H.C. No. 40.910 (S.T.F., 1964). See also João Batisto Zacariotti, 32 R.T.J. 23, 26 (en banc 1965), opinion of Justice Gonçalves de Oliveira (concluding that “we are not about to witness, with arms folded, the gradual destruction of human rights”).Google Scholar

204 Cidade de Rezende, H.C. No. 40.910 (S.T.F., 1964), reprinted in Edgard Costa, ed., Os Grandes Julgamentos do Supremo Tribunal Federal 7, 8–15 (Rio de Janeiro: Editora Civilização Brasileira, 1977) (“Costa, Os Grades Julgamentos”).Google Scholar

205 Viera Netto, H.C. No. 45.232, 44 R.T.J. 322 (S.T.F., 1968).CrossRef Google Scholar

206 Feinrider, 5 Suffolk Transnat'l L.J. at 182 (cited in note 92).Google Scholar

207 Governador do Estado da Guanabara (1965) in Costa, Os Grandes Julgamentos 71, 79–83.Google Scholar

208 One scholar correctly describes the language of these decisions as “increasingly vituperative.” Nadorff, 14 Lawyer of the Americas at 321 (cited in note 92).Google Scholar

209 On the growing opposition within Congress, despite the massive purging of deputies, see Maria Helena Moreira Alves, State and Opposition in Military Brazil (Austin: University of Texas Press, 1985).Google Scholar

210 This was the predominant view of the lawyers with whom I spoke in 1982–84. See also, e.g., the reflections of former Justice Aliomar Baleeiro, O Supremo Tribunal Federal: Esse Outro Desconhecido (Rio de Janeiro: Forense, 1968).Google Scholar

211 See, e.g., the references to Rui Barbosa in the Mauro Borges case, in Costa, Os Grades Julgamentos 37, 48.Google Scholar

212 Institutional Act No. 5 (1968). Some Justices found such formulations unconstitutionally vague. The military rulers obeyed the Court's judgments against it in all litigared cases but repeatedly revised the pertinent provisions in an effort to prevent future embarrassments at judicial hands.Google Scholar

213 This is generally thought to account for certain episodes of apparently “freelance” terrorism by individual members of the intelligence services. Stepan, Rethinking 115 (cited in note 183) (describing the notorious “Riocentro” bombing attempt). This conclusion is also reached by Feinrider, 5 Suffolk Transnat'l L.J. at 186–87.Google Scholar

214 Skidmore, Politics of Military Rule 82 (cited in note 92).Google Scholar

215 Each tribunal had four military officers and one lawyer. Their activities were well recorded and preserved on the public record. A book describing these activities, assembled by the São Paulo Archdiocese, became the best-selling nonfiction volume ever published in Brazil. An abridged version is available in English: Dassin, Torture (cited in note 95). The story of how the records of these proceedings were secretly photocopied is told by Lawrence Wechsler, Miracle (cited in note 2).Google Scholar

216 4 Nunca Mais at 25 (cited in note 168).Google Scholar

217 Stepan, Rethinking (cited in note 183). See also the data on the frequent reversal of convictions on appeal to the Supreme Military Tribunal. 4 Nunca Mais at 25.Google Scholar

218 Moreover, the tribunals routinely ignored many unequivocal rules favoring the defendants before them. 4 Nunca Mais (pages cited in note 175).Google Scholar

219 James Gardner, Legal Imperialism: American Lawyers and Foreign Aid in Latin America 258–59; see also 271–72, 280 (Madison: University of Wisconsin Press, 1980).Google Scholar

220 The most distinguished members of this group included Anina de Cavalho, Modesto da Silveira, Hélio Bicudo, and Dalmo Dallari. On their strategies, see Patricia Fagan, “Civil Society and Civil Resistance in Chile and Brazil,”Human Rights Internet: Special Paper No. 1 (1982).Google Scholar

221 Raymundo Faoro, “Papel de la Orden de Advogados en el Proceso de Apertura Democdtica,” in H. Fruhling, ed., Regresión Política y Defensa de los Derechos Humanos 39 (Santiago: CESEA, 1986). See also Alberto Venancio Filho, Notícia Histórica da Orden dos Advogados do Brasil (Rio de Janeiro: Folha Carioca Editora, 1979) (“Filho, Notícia Histórica”).Google Scholar

222 See the speeches delivered at the bar's conventions. Conselho Federal da Ordem dos Advogados do Brasil, Anais da V Conferexñcia. See also Osiel, Mark, “The Dilemma of the Latin American Liberal: The Case of Raymundo Faoro,” 23 Luso-Brazilian Rev. 37 (1986).Google Scholar

223 Raymundo Faoro, Assembléia Constituente: a legitimidade recuperada (São Paulo: Brasiliense, 1981).Google Scholar

224 See, e.g., the public statements of various bar leaders in Filho, Notícia Histórica 162, 174.Google Scholar

225 On press reaction, see Dulles, President Castello Branco 182–85 (cited in note 187).Google Scholar

226 The appeal to authoritarian rulers of “Secret laws” is precisely that such laws claim to offer the benefits of psitivization (i.e., precision regarding the rulers' intent and the scope of their directives to subordinates) without risking the costs of publicity among a wider audience. But secret laws pose administrative problems of their own; they tend either to remain too secret to chasten adequately the conduct of the subordinates subject to them or become too public effectively to protect the regime from foreign criticism. See Néstor Sagüés, Las Leyes Secretas (Buenos Aires: Editorial Alfa, 1983).Google Scholar

227 Strictly speaking, this is not legal positivism, i.e., as Hart or Kelsen understood it. When those in power have seized it by unconstitutional means, they necessarily establish a new grundnorm or “rule of recognition,” i.e., a new foundation for all other positive law. Hence when they announce that old law remains intact, they commit a jurisprudential mistake, since prior law now rests on an altogether different footing, one established by their successful exercise of authority after taking power unconstitutionally. Thus, all prior law is necessarily invalidated by an effective coup d'état; it reacquires validity only insofar as the new de facto rulers specifically reenact it. See Brookfield, 19 Toronto L.J. (cited in note 59). In short, according to positivists, the content of the country's positive law may be no different after a coup, but it becomes part of a new and different “legal system.”Google Scholar

228 Neither case perfectly embodies the conclusions so stated because both these regimes were complex political entities that sought their legitimacy, and that of specific directives, from no single rhetorical formula.Google Scholar

229 A similar phenomenon occurred in the dissenting opinions of U.S. Justices Brennan and Marshall during their last decade on the Court. According to reports from former clerks, by then both men so despaired of persuading their fellow Justices on many central issues that they had begun to direct their opinions, particularly in cases centering on questions of statutory interpretation, to Congress and the public at large. Naturalist arguments of principle and realist arguments of policy were their favored means to this end. There may be some occasions when even positivist arguments can provide the best means of appealing to the country at large, as when the pertinent law enjoys great public support and is being subverted by the executive. At this point, however, the ambiguity in the boundary between positivist and naturalist arguments comes to the fore, since the situations in question are ones where positive law embodies deeply held moral principles, widely shared by the public.Google Scholar

230 Roger Cotterrell, The Politics of Jurisprudence 277 (London: Buttersworth, 1989) (noting that “crises of political and legal authority are often associated with the emergence of natural law theories, which demand that a theoretically justified reason be included in legal technique”).Google Scholar

231 Joseph Page, The Revolution That Never War: Northeast Brazil, 1955–1964 (New York: Grossman, 1972).Google Scholar

232 Totalitarian regimes, to be sure, have been even more reluctant to positivize their most repressive policies. Hence the paradox, noted by Juan Linz, that the law of authoritarian regimes is often more repressive than that of totalitarian ones, whose most homicidal policies bypass legal mechanisms altogether. Linz, “Totalitarian and Authoritarian Regimes,”in 3 Handbook of Political Science 222 (Reading, Mass.: Addison-Wesley, 1975).Google Scholar

233 This suggests that to foster judicial scrutiny, constitutional provisions defining a state of siege should be narrowly drawn, despite the dangers of underinclusiveness. Note, “Recent Emergency Legislation in West Germany,” 82 Harv. L. Rev. 1704 (1978).Google Scholar

234 This conclusion may need to be qualified if it can be shown that judicial resistance—whatever its jurisprudential form—has a greater effect in driving atrocious conduct underground rather than in chastening its scope. This possibility has been suggested in the Chilean case. Fruhling, 12 Int'l J. Soc. L. at 352, 365–68 (cited in note 77).Google Scholar

235 While these generalizations necessarily operate at some remove from the complexity of historical reality, they adhere to Weber's view that the explanation of social phenomena cannot proceed at a level entirely alien from the self-understanding of the social actors engaged in it. Thus, the preceding generalizations rely to a great extent on the self-consciousness of judges, on their own view of what they were accomplishing when adopting certain jurisprudential forms of resistance. In this regard my approach may be distinguished from those of Cover and MacCormick, who viewed jurisprudential ideas as exerting their effect in ways remote from judicial self-consciousness. It is not my intention, however, to deny that judicial resistance may have unintended consequences, i.e., effects transcending the awareness of those engaged in it.Google Scholar

236 This fact invites the inevitable question: What, then, does motivate some people (including some judges) to resist evil law? To address that question would take us too far afield from present concerns. Some scholars stress the influence of strict theological and secular ideological commitments, as well as membership in corresponding social movements and organizations (i.e., churches and political parties). Others emphasize the resisters' fortuitous encounters with individual victims of repressive policy (e.g., with a Jewish neighbor, harbored from the Holocausr). In either case, it might seem that when lawyers resist extreme injustices, they are less likely to be responding to law's internal morality or other such intrinsically professional concerns than to broader cultural movements equally influential on people in many other walks of life. But no study has examined whether lawyer-resisters explain their motives in ways different from nonlawyer resisters.Google Scholar

237 Posner articulates this realist-pragmatic view in stating that “legal method or judicial philosophy is at best a tool, more often a style, sometimes even a pose, rather than an ideology.” The rhetoric of legal positivism must thus be seen, in his view, as primarily a bag of “tricks” that inctude “hair-splitting casuistry, strict construction, and disavowal of personal responsibility.” Posner, 204 New Republic at 41 (cited in note 51).Google Scholar

238 Many a Brazilian and Argentine judge, moreover, proves to be no more a “Houdinian” realist than a Dworkinian “Hercules.” Because he has limited time, energy, and imagination, the average judge is simply unable to derive a good-faith argument of rule, principle, or social policy for every conceivable result in most disputes that come before him. Call him “Hapless,” following Altman's felicitous alliteration, 89 Mich. L. Rev. (cited in note 80). His consistent predisposition toward one of the three modes of legal argument therefore functions as an enabling constraint, impelling him willy-nilly to resist executive misconduct in defense of which he cannot construct a plausible legal argument, i.e., from the resources provided by his preferred jurisprudential standpoint. The belief that law (and hence one's meta-theoretical assumptions about its nature) can and should constrain judges may be “partially self-fulfilling.” To confirm this final hypothesis, however, would require more sustained conversations with such judges than those in which I have yet engaged.Google Scholar

239 Norberto Bobbio, El Problema del Positivismo juridico, trans. E. G. Valdes, 8–9 (Buenos Aires: Editorial Universitaria de B.A., 1965).Google Scholar

240 I owe much of the formulation in this paragraph to Donald Herzog.Google Scholar

241 See, e.g., Ellmann, Time of Trouble 238–47 (cited in note 44) (arguing that South African anti-apartheid lawyers won more victories in court than American antebellum abolitionists engaged in in defending fugitive slaves because the former, unlike the latter, sought to honor intraprofessional norms of discourse).Google Scholar

242 This is less true, to be sure, in authoritarian regimes lacking well-developed legal professions with strong internal norms of competence, enforceable by reputational checks. In such other societies, judicial resistance requires extraprofessional support, as from the pressures of international organizations in the human rights field.Google Scholar

243 Pierre Bourdieu, “The Force of Law: Toward a Sociology of the Legal Field,” 38 Hastings L.J. 814 (1987).Google Scholar

244 Such mobility as occurs is due primarily to military coups, the prospect of which surely weakens the pressures of the legal community for judicial compliance with its professional norms.Google Scholar

245 Weschler, Miracle 48 (cited in note 2).Google Scholar

246 This species of complicity has long been noted. See, e.g., Benjamin Constant, Principesde Politique, applicable à tous les gouvernements représentatifs et particulièrement a la constitution actuelle de la France (1815). Constant wrote: “in a dreadful moment in history it was argued that one only carried out unjust laws in order to weaken their severity, that the power one agreed to exercise would have done even more damage if it had been placed in hands which were less pure. What a deceitful rationalization, which opened the door to unlimited criminality! Everyone eased his conscience, and each level of injustice found a willing executor. In such circumstances, it seems to me, innocence was murdered, with the pretext that it be strangled more gently.”Google Scholar

247 This is not the place to defend the test of official self-scrutiny adopted here. Dennis Thompson, on whose arguments I rely in this regard, offers a sustained defense of this test. “Ascribing Responsibility to Advisers in Government,” 93 Ethics 546 (1983).CrossRef Google Scholar

248 Id. Google Scholar

249 Michael Walzer, Interpretation and Social Criticism 33–67 (Cambridge: Harvard University Press, 1987), and The Company of Critics: social Criticism and Political Commitment in the 20th Century 3–29, 225–40 (New York: Basic Books, 1988).Google Scholar

250 Ian Shapiro, Political Criticism 83 (Berkeley: University of California Press, 1990).Google Scholar

251 Albert Hirschman, Exit, Voice, and Loyalty (Cambridge: Harvard University Press, 1970). See also George Fletcher, Loyalty 5–6 (New York: Oxford University Press, 1993).Google Scholar

252 This is exemplified by Dworkin's account of legal interpretation in the Anglo-American world. Law's Empire (cited in note 26).Google Scholar

253 On the concept of elective affinity, see Max Weber, “The Social Psychology of World Religions,”in Hans Gerth & C. Wright Mills, eds., From Max Weber 284–85 (New York: Oxford University Press, 1952).Google Scholar

254 Dworkin's Hercules is only the most unabashed example of this judicial perfection. He can resolve every dispute as fairness requires by finding a coherent set of principles within the authoritative legal materials that best fit and justify the legal history of his community. This requires him “to develop a full political theory that justifies the constitution as a whole.”Law's Empire 105–30 (cited in note 26). The name given to this hypothetical judge bespeaks Dworkin's obvious awareness that the intellectual powers necessary to assume this mantle are scarcely common.Google Scholar

255 Compare, e.g., the conclusions in moral theory of Rawls with those of Nozick.Google Scholar

256 Moore, Reflections on the Causes of Human Misery and upon Certain Proposals to Eliminate Them 1–2 (Boston: Beacon Press, 1975).Google Scholar

257 I follow the recent lead of John Dunn in this regard. Interprating Responsibility 193–96 (cited in note 77).Google Scholar

258 Rawls states explicitly that his conclusion make sense only for a “well-ordered society.”Political Liberalism 35–40 (New York: Columbia University Press, 1993).Google Scholar

259 In this respect Walzer is surely correct that practical ethics stands more to gain from history and anthropology than from neoclassical economics and decision theory, on which Rawls and Nozick respectively relied. Spheres of justice: A Defense of Pluralism and Equality xviii (New York: Basic Books, 1983).Google Scholar

260 The methods by which this step might be taken must remain a topic for another venue. There is the question whether the ethical dilemmas confronted by judges in liberal and authoritarian regimes are so categoricalIy distinct that it makes little sense to think of the possibilities for doing good in the former as simply a function or fraction of what is appropriate in the latter. Though I would defend the idea of a seamless continuum in this respect, many surely would not concur. Analysis awaits another occasion.Google Scholar

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Dialogue with Dictators: Judicial Resistance in Argentina and Brazil

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