Puzzling over Authoritarian Legality

While many democracies have witnessed dramatic declines in both voter enthusiasm for political participation and the appeal of the state as the unique focus of transformational political projects, many governments around the world have gradually become more authoritarian and closed, aggravating the cynicism of the citizenry. Pereira’s Political (In)justice offers an indirect antidote to these trends by examining the devil itself in the comparative details of the rise and fall of three Latin American authoritarian regimes. While Pereira’s principal concern is the relationship between rulers and ruled, this book examines rulers. The work of Weber anchors its theoretical approach to examining differences and similarities in the ways elites used the law to rule the masses in the dictatorships of Brazil (1964–1985), Chile (1973–1990), and Argentina (1976–1983). By carefully analyzing the paradox of authoritarian legality in the Southern Cone, Pereira’s book offers many historical and political clues for solving the puzzle of institutionalized authoritarianism and what makes governments function and states important enough to fight over.

Toward the end of his life, the political theorist Nicos Poulantzas directed his attention to achieving democratic socialism in Western Europe. “Power is not a quantifiable substance held by the state that must be taken out of its hands, but rather a series of relations among the various social classes,” he wrote in 1978 (2008: 368). Given Pereira’s focus, the key relation is essentially intraclass: that between the “judicial and military elites” (10) who promoted authoritarianism in the Southern Cone. In referencing Weber (1978: 305–307), Pereira analyzes these distinct “status groups.” Of particular concern are the levels of “integration and consensus” (10) that the judicial and military authorities achieved. “Class factions” interested Poulantzas, too, as he warned against models of revolutionary activism that sought to mimic the October Revolution to establish socialism by simply replacing bourgeois elites with proletarian elites like Lenin and Stalin. “Authoritarian statism,” he added, “can be avoided only by combining the transformation of representative democracy with the development of forms of direct, rank-and-file democracy or the movement for self-management” (Poulantzas, 2008: 370). Status groups of the sort Pereira examines also provoked Poulantzas to argue that the varied interests of these factions created political opportunities that could be manipulated to expand democracy, influence public policy, and advance socialism.

By digging deeply into ruling class perspectives and actions on the construction of reactionary regimes, Pereira’s book educates readers on the strengths and weaknesses of authoritarianism. A primary insight is that reliance on the law differs from regime to regime (5). He argues that Brazil’s dictatorship worked the hardest to legalize repression in collusion with the existing judiciary. The appearance of legality mattered nearly as much to Chilean as to Brazilian elites, but the Chileans were far less respectful of existing norms. Argentina’s authoritarian regime lasted only seven years, and yet, in Pereira’s view, it was the most reactionary of the three, seeking a “sweeping transformation” (Poulantzas, 2008: 371) of a seemingly corrupt state. In explaining these differences, Pereira rejects “universalistic” hypotheses and opts for historical specificity, emphasizing the “existence of distinctive legal and political cultures in each country” (29).

Pereira focuses on political repression to evaluate these distinctions, giving special attention to the degree to which each dictatorship utilized the courts—military and/or civilian—to legitimate the persecution of its political and ideological enemies. “Political trials,” he claims, “are one of the keys to understanding” authoritarian regimes (117). By using existing laws as well as a series of reformist decrees, Brazil’s military leaders built on existing relationships with jurists to create a military court system that acted in surprisingly moderate ways, acquitting more than 50 percent of defendants and sentencing most of those found guilty to prison terms of less than one year.

From the beginning of the coup in 1973, the Chilean dictatorship of General Augusto Pinochet justified the execution of hundreds of supposed enemies as a “wartime” necessity. The previous government had stirred hostility among the judiciary by supporting “popular tribunals,” with the result that when the coup was unleashed the Supreme Court offered its blessings rather than condemnation and “remained a pillar of authoritarian rule” throughout the dictatorship (113). Pinochet dispatched a “caravan of death” to eliminate supposed subversives and intimidate regional military commanders who might have considered challenging the new order. The regime then established a network of military courts to further suppress dissent until 1978. Untrained military officers tried thousands, acquitted few, and sentenced nearly 200 to death (106). With sentences carried out within a day, few executions were questioned.

According to Pereira, Pinochet’s army effectively “usurped judicial authority . . . with brutal and tragic consequences” for Chile (114). Yet, none of these systems was more tragic than that of Argentina. By systematically arresting, torturing, and disappearing 20,000–30,000 dissidents, the Argentine dictatorship “accomplished the rare political feat of creating an institutional matrix that was truly new” (119). While both the Brazilian and Chilean cases demonstrate how some dictatorships built “authoritarian legality” from existing laws and relationships, the Argentine case shows a regime that dismissed “preexisting legality” and “largely dispensed with any kind of legal strategy and engaged in total and merciless war on the alleged agents of subversion”(119). It built a network of 365 clandestine detention centers and ordered the police and military to repress the population without leaving any records from 1976 to 1983.

Pereira, who now directs the King’s College Brazil Institute in London, finds in Brazilian authoritarianism examples of the political opportunities Poulantzas identifies in ruling class factionalism. By building the military justice system in collaboration with civilian jurists, the regime accepted certain juridical norms. Of great importance was the adversarial system, which permitted the accused to defend themselves. Lawyers, priests, and civil libertarians used this space to challenge the regime—to win acquittals and reduced sentences for defendants. The Chilean military courts did not permit the accused to defend themselves, and civilian judges were censured by their own supreme tribunal; the Argentine regime mostly ignored constructing a legalistic cover for its crimes.

These considerations inform Pereira’s analysis of the final theme, “transitional justice,” which evaluates the legacy of authoritarian legality in the new democracies constructed in the shadow of dictatorship. Pereira demonstrates that the Brazilian dictatorship’s authoritarian legality, which counted on judiciary collusion, shaped Brazil’s future by preserving ruling class predominance in the legal system “as an immense barrier to reform after authoritarian rule” (172). Authoritarian legality in Chile also proved resilient, but the fact that Pinochet established a separate military court system enabled critics to drive a wedge between ruling factions and force reform of a judiciary that had failed to defend civil rights. Ironically, the most dramatic dismantling of authoritarianism occurred in Argentina, where civilian leaders quickly repudiated and condemned military rule once the junta was ousted.