MarkOsiel DictatorsJudicialBrazilArgentina

Citation: 20 Law & Soc.
Inquiry 481 1995

Content downloaded/printed from
HeinOnline (http://heinonline.org)
Thu Jul 4 23:43:06 2013
-- Your use of this HeinOnline PDF indicates your acceptance
of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from
uncorrected OCR text.
-- To obtain permission to use this article beyond the scope
of your HeinOnline license, please use:
https://www.copyright.com/ccc/basicSearch.do?
&operation=go&searchType=0
&lastSearch=simple&all=on&titleOrStdNo=0897-6546
Dialogue with Dictators:
Judicial Resistance in
Argentina and Brazil
Mark J. Osiel
Throughout the world, judges are often asked to implement the repres-
sive measures of authoritarian rulers. Which conception of legal interpreta-
tion and judicial role, if any, make judges more likely to resist such pressures?
That question, central to Anglo-American jurisprudence since the Hart-
Fuller debate, is addressed by examining recent military rule in Argentina
and Brazil. In Argentina, judges were sympathetic to military rule and so
criticized its "excesses" in the jurisprudential terms favored by the juntas:
positivism and legal realism. Brazilian judges, by contrast, were largely un-
sympathetic to military rule, and so couched their criticism in terms of natu-
ral law, in order to raise larger questions and reach a broader public.
Empirical study of the cases and conceptual analysis of existing theories both
reveal that no view of legal interpretation inherently disposes its adherents to
either accept or repudiate repressive law. Contingent political circum-
stances-the rulers' favored form of legal rhetoric, and the degree to which
judges accept the need for a period of extra-constitutional rule-determine
which legal theory fosters most resistance. But since most authoritarian rulers
nominally affirm their constitutional predecessors' positive law and are often
unwilling to codify publicly their most repressive policies, strict literalism usu-
ally offers the most congenial idiom for judicial resistance to such regimes.
Mark J. Osiel is a professor of law at the University of Iowa. The author thanks for their
comments Steven Burton, David Dyzenhaus, Stephen Ellmann, Hugo Fruhling, Donald
Herzog, Kenneth Kress, Marc Linder, Peter Shane, Jeremy Waldron, Gerald Wetlaufer, Eliza
Willis, and anonymous reviewers for this journal. Generous support was provided by Harvard
University's Program in Ethics and the Professions, the Iowa Law Foundation, the Center for
Advanced Studies at the University of Iowa, and the Institute for the Study of World Politics.
Special thanks to the several judges, former judges, practicing attorneys, and law professors in
Buenos Aires and Rio de Janeiro who shared their recollections with the author, and whose
anonymity must be preserved in this account.
1995 American Bar Foundation.
0897-6546952002-0481501.00 481
482 LAW AND SOCIAL INQUIRY
Only from time to time, and mostly at night when one can't get to
sleep, there comes a feeling of regret or even dismay at how one has
forgotten the old aspirations. But by then one has forgotten one's for-
mer doubts and life just goes on through inertia.... All I had managed
to do was assist the existing state of lawlessness, sometimes aggravating
and sometimes attenuating its mistakes. But the more I learned about
the true state of affairs, the less acceptable I became for the existing
regime.... A servant of arbitrary power who starts to think stops being
its auxiliary and starts to become its enemy. Ivan Klima, Judge on Trial
1
There are judges who are willing both to serve, and yet occasionally to
challenge, a lawless regime.
2
Such a judge inevitably displays an ethical sen-
sibility that is quite complex. We cannot characterize him summarily as
either a subservient lap dog of illegitimate power or as a righteous and cou-
rageous crusader for justice.
3
As the Czech judge in Klima's recent novel
discovers, the line between unthinking accommodation to lawlessness and
the first steps of what will be perceived as resistance can be unwitting and
almost imperceptible. These steps need not reflect any principled commit-
ment to moral truth. They may merely evince the disposition to exercise
independent judgment in a profession where competent practice requires it.
There need not be any moment of ethical epiphany, no point at which one
feels compelled-either internally or by circumstances-to identify oneself
as with the rulers or against them.
While working in Brazil and Argentina for two years, I was especially
puzzled by the ethical sensibility that had allowed some of the acquaint-
ances I most respected, lawyers then involved in prosecuting the Argentine
military juntas for human rights violations, to have served as government
prosecutors and even judges under the prior regime.
4
Chatting with fellow
lawyers, I sometimes allowed myself to wonder aloud how judges-people
committed by professional training and temperament to the "rule of law"-
could justify their service to military rulers, people who seemed so clearly to
spurn that ideal. (This is not a subject one raises, of course, on first acquain-
tance or while duck hunting in the Pampas.) In their defense, my acquaint-
1. Judge on Trial 340, 359, 361 (London. Chatto & Windus, 1993).
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.
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 Uni-
versity Press, 1996).
4. Both of the prosecutors and half of the judges on the court that convicted the Argen-
tine juntas had held significant posts in the judicial system controlled by the defendants.
Brysk, Politics of Human Rights 248.
Judicial Resistance in Argentina and Brazil 483
ances sometimes invoked the fact that they were simply enforcing what was
then "the law of the land." Chief prosecutor Julio Stassera appealed to the
legal positivism of Hans Kelsen. Such encounters inevitably raised a dis-
turbing question about the relation between professional ethics and legal
philosophy: Is a willingness to do the bidding of an authoritarian regime
affected by one's basic assumptions about the nature of law and
adjudication?
Legal philosophers have certainly thought so. Since World War II they
have been haunted by the capitulation of the German bench and bar in the
Third Reich.
5
It is striking that an academic discipline often thought to be
relentlessly abstract should have come to focus so persistently on the profes-
sional dilemma faced by a very concrete set of historical individuals. In their
predicament, it'seems, one of the central dilemmas of modem legal thought
has been discerned. Legal philosophers of all persuasions-natural law, posi-
tivism, legal realism-have traded the accusation that their adversaries'
views lead to judicial capitulation in enforcing evil law. I evaluate these
conflicting claims by way of Supreme Court opinions in Argentina and Bra-
zil, where judges struggled at some personal risk to limit the repressiveness of
military rule.
"Jurisprudence," as one Argentine scholar writes, "has always played an
essential role in the ideological rationales for coups d'etat. It has provided
indispensable support for those developing the arguments in favor of dicta-
torship.
' 6
Yet jurisprudence has also played a recurrent role in the rationales
offered by lawyers and judges for limiting dictatorial excess. What rhetorical
strategies does a judge employ to persuade authoritarian rulers, at whose
sufferance he serves, that they have exceeded their authority? Are certain
forms of legal argument more effective than others in chastening their re-
pressive impulse, or is it merely intellectual hubris to suppose that tyrants
and torturers could respond to reasoned argument of any sort? If judicial
recalcitrance tends to assume a particular rhetorical form, can this be traced
to any of the alternative theories explaining what judges do? If so, could
resistance to repression be enhanced by teaching this theory-inculcating it
into judicial self-understanding?
7
On these matters, I find some truth and
much mystification in the claims of all major theoretical persuasions.
5. This story is told by Edward Purcell, The Crisis of Democratic Theory 128-33 (Lexing-
ton: University of Kentucky Press, 1973).
6. Enrique Groisman, La Corte Suprema de Justicia durante la Dictadura, 1976-1983 at
7-8 (Buenos Aires: CISEA, 1989) ("Groisman, La Cone Suprema').
7. Encouraging judicial resistance to wicked law is only one legitimate aim of legal the-
ory. 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 laws 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 perspec-
The central question is whether it is possible to increase resistance to
evil law by instilling in judges a particular understanding of their job, one
that makes capitulation to repression inconsistent with something basic to
their professional self-image. It has been hoped that resilience in the face of
executive intimidation can be enhanced by founding judicial independence
on a conception of law and adjudication integral to the judge's day-to-day
understanding of his tasks. If a strong notion of professional integrity can be
hard-wired to a particular theory of adjudication, the judge is more likely to
view resistance to radical evil as a sine qua non of his job, and so will be
more likely to remain deaf to the siren song of military tyrants. Legal theory
seeks to tie him to the mast.
8
Competing theories claim to get the best
results. But such theories, I suggest, rarely impel a judge directly to resist-
ance. They facilitate it indirectly, I contend, by making available alterna-
tive rhetorical forms through which the judge can find an idiom congenial
to his chosen interlocutors-often the dictators, sometimes their oppo-
nents-enabling him to influence their conduct while minimizing his risks.
George Orwell was the first to highlight the role of language in the
implementation of totalitarian systems.
9
Some have argued that in Latin
America, judicial recalcitrance in the face of military rule created a verbal
smokescreen that contributed to the legitimacy of the regimes it purported
to chasten.lo Judicial resistance allegedly had this unwitting effect because
legal reasoning necessarily concentrates on the facts of individual cases and,
in so doing, inevitably obscures the pervasiveness and systemic character of
human rights abuse under such regimes. In fact, it may be too generous to
suggest that this legitimating effect was entirely unwitting; the Argentine
Supreme Court, in an opinion rejecting the military's legal arguments, once
observed that by "proving its respect for the judicial power," the executive
could enhance its public esteem."
Judicial resistance of this sort, it has been said, creates the impression
that illiberal regimes retain a measure of genuine fidelity to liberal princi-
ples, when these are "honored" almost entirely in the breach. Public doubts
about the legitimacy of the regime are channeled into the less threatening
tive of fostering resistance to oppression might also wreak havoc with other essential aspects
of judicial roles.
8. The rationality of this approach is defended by Jon Elster, Ulysses and the Sirens (Cam-
bridge: Cambridge University Press, 1984). In referring to judges under the authoritarian re-
gimes examined here, I employ the masculine pronoun throughout, since all whose opinions I
discuss are male.
9. "Politics and the English Language," in Orwell, A Collection of Essays by George Onell
156 (Garden City, N.Y.: Doubleday, 1954).
10. Frederick Snyder, "State of Siege and Rule of Law in Argentina: The Politics and
Rhetoric of Vindication," 15 Lawyer of the Americas 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?
11. Joao Rodriques Cerqueira, H.C. No. 46.881, 52 R.T.J. 1,60 (S.T.F., 1969).
form of doubts about the defensibility of its treatment of discrete individu-
als, doubts that can be harmlessly allayed by an occasional gesture of magna-
nimity in a handful of the most widely visible cases.
12
The "reasonableness"
test employed by the Argentine Supreme Court in evaluating deprivations
of civil liberties left the impression that military rule was not per se unrea-
sonable, when in fact the most egregious abuses of human rights were taking
place under its aegis. The suggestion has hence been made that:
[L]egal process, ostensibly available as a quasi-autonomous mechanism
to challenge and check executive power, may ironically have func-
tioned as an unsuspecting accomplice in the junta's very efforts to con-
solidate power. Legal process has thus been singularly important in the
mobilization of state terror in that it has enabled the junta to address
society not only through the amplifier at the rally, the proclamation in
the newspaper, the rifle butt on the street, and the electrode in the
torture chamber, but through a vocabulary of reason and right as well.
It is for this reason that the junta in Argentina, like its counterparts in
other Latin American states, preserves the courts intact during the ad-
ministration of a state of siege.
13
There is even some evidence for this view. When the Supreme Court
ruled against the military in one habeas case, the Justice Minister publicly
heralded the decision-for both the judicial independence it displayed and
the executive's respect for the result-as greatly enhancing the govern-
ment's image, at home and abroad.
14
The Court later enjoined the execu-
tive to conduct more thorough investigations into the whereabouts of those
who had "disappeared." In response to the Court's decision, President
Videla personally congratulated the Chief Justice, telling him "justice has
been done."'
5
Thus, even if Snyder's argument above is exaggerated, it is
probably fair to say, with Enrique Groisman, that "the Justices acted at once
as a counter-weight to political power and, paradoxically, as a source of its
legitimation."'
6
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).
13. Snyder, 15 Lawyers of the Americas at 518-19. As I shall show, this view is incompat-
ible 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 appara-
tus of state violence.
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).
15. Adolfo Gabrielli, La Corte Suprema de Justicia y la Opini6n Publica, 1976-1983 at 64
(Buenos Aires: Abeledo-Perrot, 1986) ("Gabrielli, La Corte Suprema"). Reacting to the Presi-
dent'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.
16. Groisman, La Corte Suprerna 8 (cited in note 6). Groisman observes that the Court,
while legitimating military rule through the appearance of judicial independence, "became,
This more cautious claim recognizes the complexities. But it tells us
little about how to assess, on balance, the moral pluses and minuses of the
Justices' conduct, about whether it was wrong to serve the dictators at all.
That is not an academic question. In the transition from authoritarianism to
democracy, in Argentina as elsewhere, a central issue has been whether to
discharge all judges who served the prior regime.
17
Apart from the pruden-
tial obstacles to enforcing such a policy, it may be morally indefensible to
the extent that judges did in fact serve as a significant counterweight to the
forces of political repression. Whether it is unqualifiedly wrong to serve as a
judge for an authoritarian regime is also highly pertinent to whether the
decisions of such courts ought to be treated as fully res judicata after the
transition to democracy. This has proven a question of enormous practical
significance across Latin America and Eastern Europe in recent years.'
8
A distinguishing feature of authoritarian regimes, when contrasted
with totalitarian ones, is that it is often possible for judges to engage in
genuine dialogue with executive rulers through critical examination of the
regime's most repressive policies. Unlike in Stalinist Russia or Nazi Ger-
many, courts in authoritarian regimes are not the blunt and perfectly pliable
instruments of executive power. They often make up a central element of
the "semi-opposition," in Juan Linz's term, a set of institutions essentially
loyal to the regime but opposed to some of its policies.1
9
Since judicial loy-
alty to the regime is acknowledged by its rulers, judicial arguments are lis-
tened to and given genuine consideration, even when doing so would entail
significant change in policy. Such legal arguments do not, however, prevail
with great regularity. Yet they are not ignored, and their adherents are not
suppressed or forced to resign. Judges are allowed to express their criticism
publicly, from the bench. Their views are accorded serious consideration
because their participation is recognized as indispensable to the regime's
effective operation and to its continued acceptance among an influential
sector of the public. The courts' recalcitrance will often be interpreted as a
broader signal of dissatisfaction among a significant set of civilian collabora-
tors with the scope of repressive measures. The decisions of courts that rule
against the regime are therefore read very carefully, and obeyed in the case
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.
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
Naci6n, 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).
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.
19. Juan Linz, "An Authoritarian Regime: Spain," in E. Allardt & Y. Littunen, eds.,
Cleavages, Ideologies and Parties (Helsinki: Academic Press, 1964); see also Jos6 J. Toharia,
"The Spanish Judiciary: A Sociological Study" (Ph.D. diss., Yale University, 1974).
at hand. This does not mean that, in light of the court's reasoning, execu-
tive rulers will change the policy that gave rise to the legal dispute, or even
apply the court's conclusion of law with any consistency to like cases in the
future. Nor does it mean that the rulers will not promulgate new law to
allow future conduct that the court found impermissible under existing law.
But the "law of the case" will be honored and the concerns inspiring it will
be recognized as those of sympathetic elites whose continued loyalty cannot
be assumed and must be maintained. The circumstances just described sat-
isfy the conditions for "dialogue," as I shall use the term.
The efficacy of "lawyering against injustice" depends greatly on judicial
responsiveness to such efforts. Many factors influence this responsiveness. I
examine here one of them: Which legal theories, when embraced by courts,
make judges most receptive to the efforts of private lawyers to hold the
regime legally accountable for its most repressive acts? The pragmatic value
of a legal theory rests in part on whether judges who adopt it become less
likely to reach decisions that are radically unjust.
20
Advocates for alterna-
tive theories seek to show how their favored view serves more effectively
than its competitors to assist judges in identifying particular enactments as
wicked and in offering professionally acceptable reasons for not enforcing
them.
2
1 A touchstone for evaluating a theory of law is whether a judge who
accepts it as descriptive and prescriptive of her practice is likely to be dis-
suaded from enforcing wicked policies, such as the racial laws of the Third
Reich or of South Africa. This is an empirical question, and has sometimes
been recognized as such.
22
But it has only very rarely been examined
empirically.
23
As Dworkin has shown, judicial opinions often betray their authors'
assumptions about the nature of legal reasoning, the proper role of courts
vis-A-vis other branches of government and perhaps even about the nature
20. 1 here adopt the pragmatic approach to political and legal theory recently defended
by Marion Smiley, Moral Responsibility and the Boundaries of Community: Power and Accounta-
bility from a Pragmatic Point of View (Chicago: University of Chicago Press, 1992).
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).
22. See, e.g., Michael Martin, The Legal Philosophy of H. L. A. Hart 227-231 (Philadel-
phia: 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 Daniel Brudney, "Two Links of Law and Morality," 103 Ethics 280 (1992).
23. The most notable exceptions are Robert Cover, Justice Accused: Antislavery and the
Judicial Process (New Haven, Conn.: Yale University Press, 1975) (Cover, Justice Accused")
(analyzing the jurisprudential assumptions of Massachusetts judges in the Fugitive Slave
cases); and David Dyzenhaus, Hard Cases in Wicked Legal Systems: South African Law in the
Perspective 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).
of law.
24
In routine rulings and decisions, judges take positions-willy-nilly
and often unwittingly-on the most basic questions in legal philosophy.
Judicial practice, in short, is theory-laden. The tacit jurisprudential commit-
ments of a court may thus be discerned from careful reading of its opinions,
particularly its views of legal method and judicial role. On this view, the
judge resembles the resolutely anti-intellectual politician whose policies re-
veal him in fact to be, in Keynes's words, "enslaved to some defunct econo-
mist." However disdainful of theory, the judge is sure to imbibe some
notions concerning what adjudication is about and what makes some argu-
ments more persuasive to him than others. It is legal theory that provides
him with those notions, however unaware he may be of their controversial
status among jurisprudents.
Because legal theory is latent within judicial practice, the moral fail-
ures of practice often derive in some measure from the theory on which a
practitioner relies. When judges go astray, enforcing wicked law, it is often
because their jurisprudential commitments have led them astray. Such mis-
steps are partly due to the failure of their profession to offer proper gui-
dance, through its conceptions of adjudication and legal reasoning, on how
to cope with the predicament they confront. It is therefore wrong to ascribe
the misconduct of such a judge entirely to personal failings, such as indul-
gence of self-interest or indifference to suffering. Judicial deference to au-
thoritarian rule is widely ascribed to the latter vices, of course. But the
former failings, which are more specifically professional in nature, are more
readily susceptible to redress. We can teach new theories of law, and the
judicial role-requirements they entail, more easily than we can root out per-
ennial vices, such as cruelty or weakness of will.
The willing enforcement of evil laws is surely one of the most serious
moral failures a judge can commit. In authoritarian regimes judges most rou-
tinely and unequivocall encounter the demand to apply such laws. These
regimes therefore provide the natural testing ground for present concerns.
By examining how judges in authoritarian regimes defend their decisions
when asked to apply wicked edicts, we can discern the implicit jurispruden-
tial commitments that lead them to resist or capitulate. To this end, I ex-
amine recent episodes of judicial recalcitrance in Argentina and Brazil.
24. Ronald Dworkin, Taking Rights Seriously (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 lan-
guage of a judicial opinion. I accept aspects of this realist thesis herein. See infta text accom-
panying notes 236-39.
I. LEGAL THEORY AS A SOURCE OF JUDICIAL
RESISTANCE
It is one thing to offer thoughtful speculation about how a particular
theory of law might likely encourage a particular judicial response to wicked
law. It is quite another to offer evidence of such a causal relationship at
work in the world. Legal philosophers have not traditionally understood the
scope of their field to encompass such tasks. The methods appropriate to
questions of historical contingency are very different from those of concep-
tual clarification and analysis. Empirical inquiry, moreover, may seem un-
likely to yield meaningful generalizations of any theoretical breadth, for the
analysis threatens to descend into a quagmire of interacting factors of infi-
nite complexity. The comparative history offered here, however, suggests
some clear patterns of variation, worthy of further examination in addi-
tional cases.
Still another objection to my method might be that when an instance
of judicial capitulation has been ascribed to the jurisprudential theory on
which the judge professed to rely, it can often be shown that the judge did
not really understand the theory in its latest or most sophisticated formula-
tion. Such judicial misunderstandings, attributable to human fallibility, can-
not be blamed on the theory itself, properly understood. I suggest, however,
how certain theories may be more susceptible to abuse than others and that
their vulnerability to opportunistic abuse is a criterion highly pertinent to a
pragmatic assessment of their value.25 In any event, a sociology of jurispru-
dence must examine the impact of ideas on conduct, regardless of their ulti-
mate coherence or rational defensibility.
Why might a judge who viewed her job through a particular jurispru-
dential lens be inclined, at very least, to limit the intended effect of a
wicked law or, more ambitiously, to find it inapplicable to the case at hand,
despite indication of legislative intent to the contrary? Why might a judge
favoring an alternative account of her obligations (and the legal theory un-
derlying it) fail to find any professionally responsible grounds for not enforc-
ing the law? Legal theories make three principal types of claims: conceptual,
descriptive, and normative. The conceptual questions concern the nature of
law and a legal system. These questions, which legal theory long took as
primary, betoken an "essentialism" that has become unfashionable and that
has relegated them in recent decades to decidedly secondary concerns.
2 6
Of much greater interest to legal theorists today are the normative
questions: Should legal decision making be highly constrained by rules that
25. Christopher Wonnell, "Problems in the Application of Political Philosophy to Law,"
86 Mich. L. Rev. 123 (1987).
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).
severely limit the range of reasons for judicial action?
2 7
Or should judges be
authorized to consider a wider range of moral and social norms relevant to
the resolution of the disputes before them? Where a legal system makes both
modes of decision making available to judges (in some subset of "hard"
cases,
28
at least), to which such mode should they turn? Also of considerable
current interest to contemporary legal theory is the descriptive question: To
what extent do Western legal systems actually constrain judicial decision
making within preexisting rules, rather than permitting judges to balance all
relevant policies and principles?
Roughly speaking, positivists claim that constraint by rules is possible,
desirable, and pervasive.
29
Naturalists widely admit that such constraint is
possible but claim that it is often undesirable and hence infrequent, at least
in common law countries. Legal realists generally claim that since con-
straint by rules is impossible, the only question that can genuinely arise is
the desirability of preserving its appearance. Since this appearance, though
pervasive, deceives both the public and the judiciary about what courts re-
ally do, it is undesirable. Both the normative and descriptive questions are
central to the issue of judicial response to wicked law. In that connection,
the descriptive question becomes: When judges resist (or enforce) wicked
law, on what theoretical assumptions about legal reasoning and their proper
role can they be shown most commonly to rely? The normative claim be-
comes, in turn, that we should seek to infuse within judicial self-understand-
27. A "rule," according to a leading account on which I rely, is an entrenched prescrip-
tive generalization, inevitably somewhat over- and underinclusive vis-4-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 rules, principles, and poli-
cies, see Dworkin, Taking Rights 22-28, 71-80, 90-100.
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 justifica-
tions for such rules or with the full range of relevant reasons and norms.
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 6f 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, es-
pecially 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.
ing whatever legal theory proves to foster most resistance to wicked law,
provided it does not also encourage excessive departure from other law.
A. Legal Positivism
The essential feature of positivism is the view that there is no necessary
connection between legal validity and moral defensibility.
30
An enactment
may thus be legally valid but too immoral to justify judicial enforcement.
31
The validity of a rule can be ascertained by reference to its sources or "pedi-
gree," independent of its content.
32
Early positivists held the source of a
legal rule to be the command of the sovereign.
33
This first meant the king;
later, the legislature.
34
Recent positivists have found the test of legal validity
in a society's "rule of recognition," that is, the settled practice-often codi-
fied in a constitution-determining the procedures by which norms come
to be generally considered as legally binding. A valid law is one enacted
consistently with the society's rule of recognition. A legal system exists if
officials, in determining which social norms are legally binding, adhere to
an observable rule of recognition and if residents habitually obey the first-
order rules enacted pursuant to this background, second-order rule.
35
The
legal scholar or social scientist may determine, without assessing its moral
defensibility, the existence of both the first- and second-order rules by di-
rect observation of officials' and citizens' settled practice, without assessing
its moral defensibility. The citizen may obey the law for virtually any mo-
tive, including raw fear. But the enforcement official must adopt an "inter-
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-consid-
ered 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, hard-
wired 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.
Philip Soper, "Legal Theory and the Obligation of the Judge: The Hart/Dworkin Dispute," 75
Mich. L. Rev. 511 (1977); David Lyons, "Principles, Positivism, and Legal Theory," 87 Yae
LJ. 424 (1977); Jules Coleman, "Positive and Negative Positivism," 11 J. Legal Stud. 139
(1982).
31. Hart, 71 Harv. L. Rev. at 597-98, 617-18 (cited in note 21).
32. Joseph Raz, The Authority of Law: Essays on Law and Morality 37-52 (New York:
Oxford University Press, 1979) ("Raz, Authority of Law").
33. Thomas Hobbes, Leviathan (London: Dent, 1974); Jeremy Bentham, Of Laws in Gen-
eral (London: Anthone Press, 1970); John Austin, The Province of Jurisprudence Determined
(London: Weidenfeld & Nicholson, 1954).
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.
35. H. L A. Hart, The Concept of Law 77-96 (Oxford: Clarendon Press, 1961) ("Hart,
Concept of Law").
nal point of view," treating legal rules as normative guides for action, both
his own and that of those whose conduct he judges.
36
Within the core of a legal rule, ordinary linguistic practice may ade-
quately guide the judicial interpreter. Hence, rule application is generally
simple, often syllogistic and deductive. Beyond this core of settled meaning
lies a penumbra: questions resoluble not by any canonical wording but only
by reference to their background justifications, often disclosed in legislative
history. Where neither rules nor their background justifications yield a clear
answer to a dispute, the judge must exercise discretion, positivists hold.
3 7
She must fill the gap by making new law.
38
Positivists are not of one mind
regarding how the judge should fill such gaps. Some believe that since law is
the command of the sovereign, and the people "sovereign" within a demo-
cratic republic, the judge should make new law in light of what elected
representatives would do if confronting the issue.
Others contend that the judge should look instead to "critical moral-
ity"-to the best accounts of what justice, properly understood, would re-
quire. Critical morality should be followed, on this account, even when
legislative intention on the matter may plausibly be discerned from the his-
torical record, if that intention has not been squarely expressed within the
resulting rule.
39
This approach to judicial gap filling may be particularly
appropriate in legal systems, like the American, that have sought to incor-
porate general moral principles into positive law through statutory and con-
stitutional provisions specifically invoking them (e.g., "due process"),
through longstanding acceptance of judicial rule revision in light of social
changes, and through the merger of common law courts with courts of eq-
uity (i.e., those possessing standing authorization to do whatever justice re-
quires in the individual case).
A prevalent view among positivists, however, is that the primary pur-
poses for having a legal system cannot be adequately achieved if it autho-
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).
37. Hart, Concept of Law 138-44; Raz, Authority of Law 70-77.
38. This view may be contrasted with that of many naturalists, such as Ronald Dworkin
and his sympathizers, who view judicial decision making, especially in "hard cases," as consist-
ing 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").
39. Joseph Raz, "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, Mo-
rality, and Society: Essays in Honor of H. L. A. Hart 132, 142-44 (Oxford: Clarendon Press,
1977).
rizes a great deal of all-things-considered decision making, unconstrained by
rules.
40
These purposes prominently include the provision of certainty and
predictability, as well as the liberty from unforeseeable state interference
that these virtues allow. No less important is the societal interest in guard-
ing against misguided rule revision by judges: departures from preexisting
rules in service of what a judge, sincerely but erroneously, takes to be the
rule's background rationale, or simply the best result, all things considered
(i.e., if allowed to consider the full range of moral and social norms impli-
cated by the case). On this view, the citizen may organize her affairs with
maximal efficiency and liberty only if she can rely on judges to limit the
domain of their decisional reasons to those formalized in preexisting rules
41
and to fill gaps in rules by reference to preexisting evidence of legislative
intent, rather than on the elusive basis of the particular judge's "sense of
justice."
1. Positivism and Resistance
There is some reason to think that positivism may foster resistance to
authoritarian rule, as its jurisprudential defenders have claimed.
42
One can
better see one's moral duty to disobey a wicked rule that purports to be law
if one understands that the law can be wicked, a possibility that most natu-
ralist doctrines deny. Positivism facilitates this understanding, because it
teaches that morality testing is not part of inquiries into legal validity and
that no professional group may assert special expertise in this domain. If
positive law, when reasonably clear, is the only proper source of judicial
decision, the judge must be prepared to decide the cases before her on its
basis, or not to decide them at all-to cease to be a judge. If her conscience
leaves her unwilling to decide these cases of the basis of positive law, then
she must either resign or lie about (i.e., "fudge") the law.
43
Positivism thus
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"); Antonin Scalia, "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).
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 justifi-
cations 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.
42. Neil MacCormick, "A Moralistic Case for A-Moralistic Law," 20 Val. L. Rev. 1
(1985); Hart, 71 H-aw. L. Rev. at 597-98, 617-18 (cited in note 21). See also Burton, Judging
202-28.
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); Bur-
ton, Judging (arguing that "in a generally unjust legal system ... one hopes that judges will
introduces an admirable clarity to judicial understanding, impeding deliber-
ate evasion and self-deception on the nature of the predicament one may
face when confronted with wicked enactments or decrees.
There is also reason to think that a judicial commitment to positivism
may compel a judge to apply the positive law as written, where authoritarian
rulers would prefer that he interpret it in light of shifting social policies
favored by the executive. "Literalism" may impede judicial willingness, for
instance, to infer within military decrees the presence of repressive inten-
tions beyond the scope of those precisely stated in the text.
44
Such formal-
ism may thus function as an "enabling constraint,
' ' 45
enabling a judge to
resist authoritarian rulers-who may be unprepared to state their repressive
aims explicitly-by constraining him to apply the more liberty-enhancing
interpretation of their decree. Formalist judges, it might be supposed, will
refuse to "read between the lines" in the way that a citizen of any political
sophistication would surely do when interpreting such decrees. Military rul-
ers will argue in "legal realist" fashion, for instance, that the courts must
face up to a new social reality confronting the nation (e.g., an internation-
ally directed guerrilla movement at work throughout the continent). But
the formalist judge can respond that his duty has always been to apply the
canonical wording of the statute or constitutional provision applicable to
the case, not to engage in wide-ranging political diagnosis or normative as-
sessments of the general welfare.
46
This scenario is illustrated by the exchange between two members of
the Argentine Supreme Court in 1962 when, in the immediate aftermath of
a coup, the Justices were pressured, on threat of more violent measures
throw a few well-placed monkey-wrenches into the works. A rule of evil law is only worse for
its efficiency").
44. Ellmann makes such an argument, e.g., about the conduct of the Appellate Division
in South Africa. In a Tme of Trouble: Law and Liberty in South Africa's State of Emergency
232-43 (Oxford: Clarendon Press, 1991) ("Ellmann, lime 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 recal-
citrance 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) (sug-
gesting "the insufficiency of fluid, situational discourse during moments of crisis," an insuffi-
ciency ensuring "that Vichy legal discourse resulted in an outperformance of the racial
demands of France's German conquerors").
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).
46. See, e.g., the 1985 decision of the Chilean Constitutional Tribunal, composed of
conservative jurists appointed by General Augusto Pinochet, holding that the plebiscite con-
templated 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).
against the military's opponents, to allow the presidential oath of office to
be administered to the officers' chosen candidate. Since there was nothing
in the enacted law to permit such a line of succession, Justice Villegas
Basavilbaso sought to put a noble face on the Court's capitulation, stating,
"We can say, with Cicero, that we have saved the Republic by violating the
law." To this Justice Colombres replied, "Cicero was wrong. He who saves
the Republic cannot possibly be violating the law."
4
7 This rejoinder displays
a decidedly antipositivist spirit. Its easy invocation on behalf of capitulation
leads some to view positivism as the last bastion of constitutionalism in such
dark times. For such reasons, the Latin American legal scholars and appel-
late judges most unqualifiedly supportive of constitutionalism have almost
invariably been legal positivists.
2. Positivism and Capitulation
On the other hand, Lon Fuller famously charged that "a general ac-
ceptance of the positivistic philosophy in pre-Nazi Germany made smoother
the route to dictatorship. . . . The attitudes prevailing in the German legal
profession were helpful to the Nazis."
48
These attitudes were decisively
shaped by positivism, which in the 75 years before the Nazi regime "had
achieved in Germany a standing such as it enjoyed in no other country."
49
This was especially significant because the Nazi seizure of power had been
effected by "the exploitation of legal forms," a process that "started slowly
and became bolder as power was consolidated." Thus, "the first attacks on
the established order were on ramparts which, if they were manned by any-
one, were manned by lawyers and judges. These ramparts fell almost without
a struggle.
50
This reading of the Nazi period became the dominant one in
contemporary jurisprudence,
5
though historians have repeatedly shown it
to be empirically
false.
52
There are several reasons why positivism, adopted by judges, might en-
courage their capitulation. None of these reasons may be logically deduced
47. Justice Julio Oyanarte, "Historia del Poder Judicial," 6 Todo es Historia, May 1972, at
117.
48. Fuller, 71 Harv. L. Rev. at 657 (cited in note 21).
49. Id. at 658.
50. Id. at 659.
51. Richard Posner, "Courting Evil," 204 New Republic, 17 June 1991, at 36 (characteriz-
ing as "the conventional view" that the German bench and bar retained a strong professional
commitment to legal positivism during Nazi rule).
52. See, e.g., Walter Ott & Franziska Buob, "Did Legal Positivism Render German Ju-
rists Defenceless during the Third Reich?" 2 Soc. & Legal Stud. 91 (1993); Ingo M(Iller,
Hitler's Justice: The Courts of the Third Reich 36-59, 68-81, 219, trans. D. Schneider (Cam-
bridge: Harvard University Press, 1991) ("MUller, Hider's Justice"); Marc Linder, The Supreme
Labor Court in Nazi Germany: 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.
from the scholarly writings of any major positivist, as antipositivists readily
acknowledge.
53
What is at issue, instead, is the impact of positivism on the
culture and self-understanding of the legal profession (both bench and bar),
an impact resulting from processes more diffuse and circuitous than allowed
by prevailing canons of rationality. First, the insistence that law is distinct
from morality is compatible with the view that the legal obligations should
be honored even when they are inconsistent with morality. The priority
accorded to legal duty in the event of conflict arises from the belief, wide-
spread among lawyers and other citizens, that because moral values are often
controversial, they are necessarily "subjective"-arbitrary and lacking satis-
factory "foundations." The priority that many accord to legal duties also
stems from order and stability and the liberty from unforeseeable state inter-
ference in one's affairs (itself a moral value of considerable significance)
that a settled body of legal rules-regardless of content-can uniquely pro-
vide. Those virtues cannot so easily be obtained in societies encouraging
judicial recourse to moral standards that remain both more controversial
and imprecise.
54
Political authorities will concede the conceptual possibility
that, as positivists insist, law can diverge from morality, while nevertheless
insising that such divergence has not in fact occurred, that the law of the
land-when challenged by a dissident-is morally defensible, even obliga-
tory. Hence in any reasonably well-ordered society (and many others), the
very idea of law almost inevitably acquires an honorific aura, weakening the
propensity of the citizen to scrutinize official demands in the light of critical
morality.
Positivism may also foster a narrowing of judicial perspective by plac-
ing morality testing outside the scope of one's professional role. Leading
positivists, to be sure, now stress the continuing importance of nonprofes-
sional duties and encourage skepticism toward claims of "role morality" in-
consistent with the demands of common, critical morality. But given the
inevitable constraints on judicial time and energy, the danger remains that
the demands of the job-applying the law-will almost inevitably assume
greater salience in a judge's mind than other demands, however genuine,
defined as external to his professional duties. Testing the morality of the law
he applies from the bench ceases to be integral to his public responsibilities
and tends to become at most a matter of private reflection on his work, or
merely on his now-irreversible choice of profession, and confined to the
confessional
hour.
55
53. See, e.g., Dyzenhaus, Hard Cases (cited in note 23).
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 pow-
erful self-interest in privileging one's legal duties over other duties when they conflict.
55. See, e.g., Ruth Gavison, "Implications of Jurisprudential Theories for Judicial Elec-
tion, 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
There may also be tendency for positivism to encourage "formalism."
5
1
6
Formalism is the judicial inclination to apply canonical rules in a mechani-
cal fashion, irrespective of the purposes and policies underlying them, to
deny unsettledness in the law and the resulting necessity for judicial discre-
tion.
5 7
Under an authoritarian regime, such acknowledgment places the
judge in a vulnerable position. It is considerably easier to rule against the
government if the judge can claim that the result, however morally and
politically controversial, is required by law, than if he must concede that the
law is unsettled and resolvable only on the basis of his discretionary judg-
ment regarding the public interest. Like the narrowing of professional vision
described above, formalism derives from a particular reading of the lessons
of legal positivism for judging, a reading that leading positivist jurisprudents
would largely reject.
But any exercise in practical ethics, such as this article, must concern
itself as much with the likely misreadings of prevailing ideas as with their
more precise, pristine versions.
5
There is no doubt that legal positivism and
its leading exponents have often been invoked by courts throughout the
world in defense of judicial capitulation to rulers who had recently seized
power by coups d~tat.
5 9
The proffered rationale for judicial capitulation in
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).
56. Fuller, 71 Harv. L. Rev. at 638; David Lyons, "Legal Formalism and Instrumental-
ism-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 Hitler'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 Pi-
nochet 131 (New York: W. W. Norton, 1991) ("Constable & Valenzuela, Nation of Enemies").
57. This latter aspect of formalism is stressed by Frederick Schauer, "Formalism," 97 Yale
L.J. 509 (1988). Its origins in a prevalent misunderstanding of positivism and its conse-
quences 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.
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 Won-
nell, 86 Mich. L. Rev. at 123 (cited in note 25). I shall give considerable attention to such
common, judicial misreadings of jurisprudential theories.
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 (Rhode-
sia, 1968); Republic v. Mustafa Ibrahim (Cyprus, 1964). These courts conclude that Kelsen's
positivism obliged them to accept a coup d'6tat, 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 F. M. Brookfield, "The Courts, Kelsen, and the Rhodesian Revolu-
such situations has been that law consists of the commands of the sovereign,
and that sovereign authority is constituted by the capacity to establish order
by eliciting obedience-a positivist criterion of "institutional fact" and "set-
tled practice" disavowing any assessment of the moral defensibility of the
coup.
Robert Cover blamed legal positivism for the capitulation of Northern
judges, sympathetic to abolitionism, in enforcing the Fugitive Slave Acts.
60
Cover sought to show how jurisprudential doctrines might affect judicial
conduct not through what could be logically deduced from them, or what
could be consciously acted on, but rather by the unconscious psychological
processes that such doctrines indirectly set in motion.
61
It might first appear
that legal philosophy could have nothing to gain by learning the practical
consequences of allocating morality testing to the courts if that allocation
did not follow necessarily from any of the contending jurisprudential posi-
tions.
62
But inaccurate or incoherent formulations of a theoretical position,
when adopted by decision makers, can have practical effects no less real
than those produced by more accurate, coherent versions of the position.
Moreover, the decision maker's misunderstanding may be attributable to the
"true" doctrine if the misunderstanding
arose from some need that the cor-
rect version was unable to fulfill. The accurate version brings the inaccurate
one into being because it cannot satisfy needs to which the deviant version
responds, needs that the accurate version may itself create.
The classic case of this phenomenon is surely the convoluted process
by which the advent of modem capitalism is thought to have resulted in
part from Calvinism, according to Weber's influential argument.
63
In the
century and a half after Calvin's death, his followers began to reinterpret his
teachings to suggest that one's material success in the world might be taken
as a tacit indication from God of one's membership among those who would
tion," 19 Toronto LJ. 326 (1969) (arguing that Kelsen's ideas had been opportunistically
misappropriated by these courts). For a Brazilian invocation of Kelsen in defense of the mili-
tary regime's legal authority, see Manoel Gongalves Ferreira Filho, 1 Direito Constitucional
Comparado 77-78, 117-19 (Sao Paulo: J. Bushalsky, 1974), and his Comentdrios d Constituigo
Brasileira 24-25 (Sao Paulo: Ediao Saravia, 1977).
60. These were federal statutes requiring free states to return runaway slaves to Southern
masters.
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 Gar-
risonian Wendell Phillips, and that many pro-slavery 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 foot-
note 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.
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' ").
63. The Protestant Ethic and the Spirit of Capitalism (London: Unwin, 1930).
attain salvation. These distortions of Calvin's theology were not an entirely
arbitrary departure from the original doctrine, for the urge to distort the
original in this particular way grew naturally out of the psychological needs
unwittingly generated by it. The initial version of predestination doctrine
produced great anxiety within the believer, Weber argued, because there
was no longer any assurance of salvation through Church sacraments. The
accurate version also produced great loneliness, because neither priest nor
religious brethren could intercede with God to facilitate one's salvation.
From the outset, Calvinist theology had counseled all believers to do
God's work by committing themselves to his service through intense en-
gagement in a worldly calling. By this roundabout process, to be methodi-
cally engaged in a worldly calling producing wealth came to be seen as an
implicit sign of election. Intense activity in a worldly calling, though con-
sciously motivated only by the desire to do God's will, had the psychological
effect of eliminating doubt about one's salvation. In this way, the "true"
doctrine of Calvinism can be said to have produced the "false" version, and
thereby to be responsible for the latter's practical consequence-modern
capitalism.
If jurisprudential ideas influence judicial conduct, it is almost certainly
through such circuitous paths as these. Both positivists and naturalists, after
all, claim an effect from jurisprudential doctrines that is acknowledged to be
the unintended by-product of their adoption, an effect following from the
psychological impulse to externalize responsibility that jurisprudential ideas
unconsciously satisfy. Both MacCormick (a positivist) and Cover (an anti-
positivist), for instance, attack the opposing jurisprudential view not on the
basis of the judicial conduct rationally deducible from its proper understand-
ing but from the doctrinal vulgarizations to which it readily lends itself, on
account of the powerful psychological needs that, in such form, it is
uniquely capable of appeasing.
Nonetheless, the most common misunderstanding of legal positivism
has resulted not from the psychological needs left unsated by the accurate
version. Rather, the mistaken understanding, insisting that morality testing
cannot be an element of legal interpretation (and should not be assayed by
judges), results from the way political power shapes the allocation of moral-
ity testing in nondemocratic societies. An authoritarian state committed to
a positivist concept of law might begin by provisionally allocating the task
of morality testing to its courts. But the contingent and reversible character
of this allocation would not be lost on the judiciary, who would undoubt-
edly realize that they exercised this responsibility only at the continued suf-
ferance of political rulers. Judges would have every reason to expect an
authoritarian regime to withdraw the task of morality testing from their ju-
risdiction as soon as it was used to attack the rulers' most vital policies.
64
Only the society's commitment to a jurisprudential position making
morality testing logically inextricable from judicial role could prevent au-
thoritarian rulers from effecting such a divestiture as soon as judges began to
erode the implementation of key policies. Thus, even when the correct un-
derstanding of positivism is introduced into an authoritarian regime, it leads
almost inexorably in practice to a particular instantiation of the theory. The
virtual monopolization of political power in executive hands determines
which of the allocations of morality testing logically compatible with posi-
tivism actually come to prevail. The stripping of morality testing from
courts that positivism, properly understood, merely makes theoretically
available actually serves, on this view, to make that stripping virtually inevi-
table, given the configuration of political forces within which the courts
find themselves in an authoritarian regime.
The "true" version of the doctrine may therefore properly be blamed
for the consequences from the "false" version. The relation between the
pure and the impure versions of positivism is even closer than that between
the original and deviant version of Calvinism. After all, Calvin's doctrine of
predestination had to be distorted almost beyond recognition to provide a
defense of modem capitalist profitmaking, whereas the effort of authorita-
rian rulers to deprive the court of jurisdiction over morality testing was per-
fectly consistent with, though not required by, a correct (i.e., modem, or
expanded) understanding of positivism. Judicial resistance to circumvention
of the courts could be expected to arise only from those who viewed the
relation between judicial role and morality testing as one of logical necessity
rather than of happy historical fact. Judicial adherents of natural law could
therefore be expected to put up the most resistance to the executive's cir-
cumvention of their jurisdiction over morality testing, if not necessarily to
all oppressive governmental conduct. Thus, the arguments of Fuller and
Cover about the practical superiority of natural law over positivism emerge
as more defensible than Soper allows
65
when that argument is modified by a
theoretical appreciation of political context.
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; Jos6 J. Toharia, "Judi-
cial Independence in an Authoritarian Regime: The Case of Contemporary Spain," 9 Law &
Soc'y Rev. 475, 486-90 (1975); and Jos6 Escobedo, "Judicial Review and National Emer-
gency," 50 Phil'ppine LJ. 457, 478-79 (1975).
65. Soper, "Choosing a Legal Theory."
B. Natural Law
Naturalism is the view that there is an inherent, or conceptual, con-
nection between law and morality. There have been two primary versions of
this claim. The first, or strong, version asserts that no rule can be legally
binding unless it is also morally defensible.
66
If a substantial portion of a
society's authoritative rules are inconsistent with the demands of morality,
the society may even be said to lack a "legal system.
'67
The second, or
weaker, version of naturalism asserts that it is both common practice and
socially desirable for judges, in deciding hard cases, to look beyond a rule's
wording and the specific intention of its authors, to more general moral
principles embedded in the fabric of legal doctrine. In a liberal society, these
principles will be liberal ones. When liberal principles can be invoked in
support of both sides to a dispute, judicial decision making, on this account,
involves the weighing of these competing principles in light of the factual
configuration before the court, rather than the syllogistic application of pre-
existing rules, combined with periodic exercises of discretionary lawmak-
ing.
68
Rules apply in an all-or-nothing fashion, whereas principles do not. A
moral principle becomes a legal principle when it passes the "threshold test"
of "fit": it offers a consistent explanation of existing cases and authorities.
Among the legal principles pertinent to a dispute, the judge should adopt
the argument justifying the pertinent authorities in the most morally defen-
sible manner. This is what common law judges have generally done, accord-
ing to such naturalists. Because some of the weightiest moral principles are
embedded in procedural law (i.e., the background law governing all dis-
putes), the law, on this view, contains an "inner morality," irrespective of
the substantive duties it imposes. When this procedural morality is system-
atically violated, the law can reach "a pitch of wickedness such that a legal
system ceases to be capable of being a source of legal rights and duties.
'69
At
that point, the judicial oath to apply the law becomes unintelligible, and
the conscientious judge is disabled from honoring it.
66. There have been both religious and secular versions of this claim. Aquinas exempli-
fies the former, Gustav Radbruch, the latter. See Radbruch, "Statutory Injustice and Supras-
tatutory Justice" (1946) (unpublished trans. by A. Kennington & D. Luban).
67. This was Lon Fuller's claim, for instance, regarding the "law" of Nazi Germany, 71
Harv. L. Rev. (cited in note 21).
68. Ronald Dworkin has been the most influential advocate of this view in contempo-
rary jurisprudence. Taking Rights 81-130, 279-90 (cited in note 24); and "'Natural' Law Re-
visited," 34 U. Fla. L. Rev. 165, 165 (1982) (accepting the designation of "naturalism" to
describe his theory of adjudication at that time).
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., Ronald Dworkin and Contemporary
Jurisprudence 260 (Totowa, NJ.: Rowan & Allanheld, 1983) ("Dworkin, 'Reply' ").
1. Naturalism and Resistance
Advocates of the first version have claimed that naturalism facilitates
resistance to unjust law by requiring judges to inspect official decrees and
enactments for their morality before classifying the demands they impose as
legally binding. As Weinreb writes, "If the idea of natural law as a necessary
qualification of positive law is preserved and moral principles are insistently
summoned to challenge the law from within, the conversion of an unjust
Leviathan into a 'mortal god' may be postponed and, finally, prevented.
' 70
A profoundly unjust "law," in short, is invalid. It should not be enforced by
a judge or obeyed by a citizen. Like positivism, naturalism is said to function
as an "enabling constraint." The judge is constrained by his professional
duties to scrutinize publicly the moral defensibility of official enactments
and is thereby enabled to resist authoritarian rulers-particularly when such
rulers understand the judicial function in similar jurisprudential terms.
Advocates of naturalism's second version similarly assert that explicit
attention to the moral principles at stake in a dispute reduces a judge's abil-
ity to hide behind the words of others, the drafters of the rules he interprets.
Because he must discuss the policies and principles at issue, these are
flushed out into the open, where their evil aims will be more transparent
than in the more cryptic and "coded" rule formulations of authoritarian
leaders. Such judicial discussion of underlying objectives will also make
their incoherence and illogicality more apparent to judges asked to imple-
ment them. By allowing that the law's demands may be subject to contro-
versy and yet still binding-that there is a "right answer" even when that
answer may reasonably be disputed and initially unclear-naturalism also
protects the judge from having to claim that his rejection of the interpreta-
tion favored by authoritarian rulers merely reflects his own discretionary
lawmaking.
Moreover, illiberal enactments and decrees must be interpreted against
the legal system's background commitments to liberalism. Hence, statutory
provisions compromising basic constitutional liberties of the person should
be judicially interpreted, naturalists contend, in light of a powerful presump-
tion, rebuttable only by unequivocal evidence to the contrary, that the leg-
islature intended to live up to its constitutional responsibilities.
7i
Judicial
interpretation of an illiberal statute should strain to make its wording co-
here with the liberal principles undergirding much of the rest of the legal
system. When the statute (or other source of positive law) gives out as a
basis for defiance, naturalist judges can appeal to values that they take to be
intrinsic to the rule of law. What they are protesting, then, is not so much
70. Lloyd Weinreb, "The Complete Idea of Justice," 51 U. Chi. L. Rev. 752, 804 (1984).
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.
the injustice of this or that particular act or executive policy as the absence
of the rule of law as such, according to Fuller and Dworkin. In so doing,
they rely on an assumption about the nature of law: that it conceptually
presupposes certain values, ones on which judges can draw to resist oppres-
sion even when those values are not enshrined in positive law. For this
reason, judicial fidelity to the correct view of law will necessarily produce
good judicial decisions even in cases where pertinent positive law is wicked.
2. Naturalism and Capitulation
Some have argued, however, that natural law discourse may have the
unintended effect of encouraging obedience to unjust authority, because it
connects law with morality only at the expense of investing official direc-
tives with undeserved authority. "If we insist that nothing is really 'law'
unless it passes a substantive moral test as well as a 'formal sources' test, we
risk enhancing the moral aura which states and governments can assume,
even if our true hope is to cut out of the realm of 'law' evil and unjustifiable
acts of legislation and of government."
72
Hence it should come as no sur-
prise to learn that legal apologists for totalitarian regimes have often pro-
claimed that the state is founded on absolute values inseparable from the
law.73
Though it is true that natural law encourages the judge to conduct a
moral inspection in reaching his results, his conception of morality is likely
to be powerfully influenced by that prevailing within his profession, place,
and time. He is likely to believe in conventional-not critical or rea-
soned-morality, given the prevailing methods of appointment and his
prominent position in society. It is thus unlikely that the moral inspection
he conducts will prove as independent of the dominant political forces sur-
rounding him as naturalist theorists imply. This problem arises in connec-
tion with both the strong and weak versions of naturalism. It is one that a
nonideal theory of adjudication, addressed to the judges we are likely to
have rather than to the "Herculean" sages of ideal theory, cannot ignore.
74
The weak version of naturalism encounters still another problem. In
profoundly unjust societies, it is likely that unjust principles will have be-
come deeply embedded throughout its law. Hence the judicial effort to in-
terpret particular decrees and enactments in light of the law's background
72. MacCormick, 20 Val. L. Rev. at 10 (cited in note 42).
73. Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends 88
(Princeton, NJ.: Princeton University Press, 1961). Francisco Bastida offers, for Franco'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 Jueces y Franquismo: El
Pensamiento Politico del Tribunal Supremo en la Dictadura (Barcelona: Ariel, 1986).
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).
principles cannot lead to liberty-enhancing results in such circumstances.7
There may similarly be little ground for -the naturalist expectation that
flushing evil purposes out into the open, through a nonformalist interpreta-
tive method, will impede their judicial enforcement. Evil purposes may be
no less coherent or consistent than morally defensible ones.
7 6
Truly wicked
rulers, moreover, may have no compunction about stating their purposes
explicitly in their enactments, allowing no doubt as to their repressive in-
tentions and leaving no latitude for strict (i.e., liberty-enhancing) construc-
tion by judges.7
C. Legal Realism
Realists generally hold that the authoritative legal sources available to
a judge do not heavily constrain her decision making. Such sources do not
compel a single right answer in complex disputes. Legal rules, directly appli-
cable to the facts, are either altogether absent or present in such number
and variety as to ensure that competent judges will reach conflicting results.
This indeterminacy at the level of rules cannot be cured by recourse to
underlying policies and principles. Any competent litigator can discover a
social policy or moral principle supporting his clients' positions. If the judge
is a positivist, he can find a facet of positive law supporting whatever con-
clusion he wishes to reach. If he is a naturalist, he can discover a moral
principle embedded in the law that allows the same. If he is an avowed
realist, he can unearth a social policy that justifies his desired result.
78
His
meta-theory-his preference for a particular jurisprudential approach-thus
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. Aft. L.. 266 (1984).
Dworkin himself concedes this possibility. "Reply" at 247, 249 (cited in note 69).
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).
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 modem 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, NJ.: Princeton University Press, 1990) ("Dunn, Interpreting Responsibility"). Re-
garding 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.... This new legal framework ... conveyed the image of an authorita-
rian rule of law." H. Fruhling, "Repressive Policies and Legal Dissent in Authoritarian Re-
gimes: Chile, 1973-1981," 12 Int'lJ. Soc. L. 351, 366 (1984).
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).
does not constrain his decisions any more than do the doctrinal rules or
principles applicable to the case at hand.
Since naturalists offer no clear method by which competing principles
may be weighed, adjudication is analytically indistinguishable from "poli-
tics," from ad hoc balancing of competing interests and objectives. Judges
thus cannot resolve legal disputes on the basis of any unique expertise.
79
Judges are constrained by the law not because it provides the real reasons by
which they reach their results, but because they must preserve the appear-
ance of law following if they are to retain influence and community ap-
proval, to avoid appellate reversal and the attendant risk of professional
humiliation.
80
Their imagination and skill at eluding such constraints are
decisive, determining how much latitude they may exercise in a given case.
Judges view themselves, to be sure, as having a duty to offer a "good-faith"
legal argument for every result. But this requirement does not seriously con-
strain them, since such an argument for either result may be constructed by
every competent practitioner in a dispute of any complexity.
81
On this account, if legal theory can facilitate resistance, it does not do
so by providing an "enabling constraint." Most realists believes that "what
the judge needs to meet this demanding test" of resisting wicked rulers is not
so much the right theory but
an acute sense of justice to see that the norm is blatantly unjust, and
the moral integrity and courage not to apply it. Whether this is done
by distorting the law and applying a just norm [the approach preferred
by naturalists], or by accepting the norm as legal and refusing to apply
it, [the method favored by positivists] is a matter of tactics.
8 2
Realists acknowledge, of course, that some tactics are more likely to be ef-
fective than others. The question, then, is whether it proves possible to give
a theoretical account of why certain tactics work better than others under
the circumstances generally faced by judges in authoritarian regimes.
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.
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).
81. Karl Llewellyn famously showed how easily this could be done in statutory interpre-
tation, through the "thrust and parry" constituting the professional "framework for maneu-
ver." The Common Law Tradition 521-35 (Boston: Little, Brown, 1960).
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.
To the extent that the realists offered any guidance to judges in decid-
ing cases, it was by way of their affinity for kindred versions of pragmatism,
utilitarianism, and sociological jurisprudence. These modes of thought, in
turn, counseled judicial attention to the consequences of decisions for socie-
tal welfare and, hence, to the evolving institutional realities affecting it.
1. Realism and Resistance
From the realist perspective, jurisprudential positions offer an array of
forms for public argument, alternative strategies for judicial self-presenta-
tion, all of which are available at any time. The judge who most clearly
appreciates this fact has the greatest capacity for effective resistance to re-
pression, because he can formulate his resistance in the jurisprudential terms
that will speak most effectively to the audience he wishes to reach. The
terms most effective in reaching military rulers may not be the most effec-
tive in reaching a wider public. If the judge wishes to address his critique of
repression to those responsible for it, he can choose the jurisprudential id-
iom least offensive to them, and hence the least costly to himself.
This sort of dissimulation can continue, of course, only as long as the
lessons of legal realism are not yet learned by repressive rulers and, perhaps,
also by the public at large. But the language of judicial opinions, even those
written by avowed realists, continues to conceal the truths of realism behind
a rhetorical facade of doctrinal determinacy.
83
Even now, over a half-cen-
tury after the major realists wrote, the subversive implications of legal real-
ism for judicial authority have not yet become widely appreciated by the
American public, still less in other societies. Moreover, dissimulation in the
face of authoritarian power, with a view to increasing freedom of thought
and action, has a long and noble history.
8
4 Judicial dissimulation concerning
the real reasons for a decision is admittedly inconsistent with liberalism's
"publicity
principle.
'85
This principle holds that the rationales guiding practice are defensible
only if they can be publicly advocated without becoming self-defeating. The
judicial stratagem of choosing a jurisprudential idiom on the basis of its
likely reception by one's intended audience does not pass this test, for few
would be persuaded by an argument that concedes its appeal to the listener's
prejudices, jurisprudential or otherwise. But the publicity principle, though
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).
84. Perez Zagorin, Ways of Lying; Dissimulation, Persecution, and Conformity in Early Mod-
em Europe (Cambridge: Harvard University Press, 1990); Leo Strauss, Persecution and the Art
of Writing (Chicago: University of Chicago Press, 1952).
85. John Rawls, A Theory of Justice 133 (Cambridge: Harvard University Press, 1971).
central to any ideal theory, imposes a condition that must be relaxed in a
nonideal theory of adjudication.
86
In an authoritarian regime, only a no-
nideal theory can make any sense as a guide to morally defensible judging,
because military juntas cannot be assumed eager to comply with the de-
mands of critical morality-to put the matter somewhat generously.
2. Realism and Capitulation
Others have argued, by contrast, that legal realism is inherently con-
servative and so cannot offer the theoretical inspiration for consistent
resistance to authoritarian repression. Despite its early invocations on be-
half of social reform, legal realism was always bound to reveal its true ideo-
logical colors as inherently conservative, even reactionary.
8 7
In many
formulations, such as those of Holmes and Llewellyn, existing customs and
prevailing practices were endowed with an affirmative, normative charac-
ter, a notion that inescapably led to sanctioning the status quo, writes Hor-
witz. Other formulations of legal realism insisted that the law "reflect"
whatever changes were occurring in "society"; this deprived the law of any
independent standards, based in positive rules or moral principles, by which
critically to evaluate prevailing social trends and tendencies. In authorita-
rian regimes the "social reality" to which law must allegedly respond is often
perceived as one of urgent "crisis." Realists will likely assert that since the
terms of that crisis were not foreseen by those who drafted the nation's
positive law, its restraints on executive authority must be subordinated to
the urgent imperatives of national survival.
88
A third theme of realism was that the public policies adopted by a
society constituted the only true basis for judicial reasoning and decision
making. But if public policy was the primary source of legal obligation, then
wherever a society's policies were radically unjust, judges would necessarily
interpret the law to serve injustice. By providing a theoretical rationale for
these adjudicative methods, legal realism would ensure that the courts be-
came complicit in such injustice. Similar conclusions about the harmful
consequences of legal realism have been reached in studies of the Argentine
experience. Snyder has argued, for example, that the realism of the Argen-
tine Supreme Court, in establishing the limits on emergency powers, "pro-
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.
87. Morton Horwitz, The Transformation of American Law: The Crisis of Legal Orthodoxy
193-212 (New York: Oxford University Press, 1992).
88. On the frequent invocation of such arguments during political crises in Western
Europe, see Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern De-
mocracies (Princeton, NJ.: Princeton University Press, 1964); for Latin American examples,
see Brian Loveman, The Constitution of Tyranny: Regimes of Exception in Spanish America (Pitts-
burgh: University of Pittsburgh Press, 1993).
vided the government with a comparatively uncomplicated formula to
follow to establish the legality of its actions"
89
during the Dirty War.
The very ease with which an argument of rule, principle, or policy can
be constructed by any competent judge makes it that much easier for him to
find a way to give the executive what it wants-to offer a plausible ration-
ale for the legal conclusion desired by chiefs of state. If applicable rules favor
the opposing party, the judge can shift to an argument of principle if he
wishes to rule for the government. If both rules and principles seem clearly
to support the regime's opponents, the judge can find refuge in an argument
about social policy and the general welfare. In short, realism's discovery that
judges enjoy great flexibility of movement among styles of reasoning greatly
diminishes the ability of this jurisprudential perspective to serve as a con-
straint on capitulation, once, that is, this perspective enters into judicial
self-understanding.
Which of these conflicting hypotheses about positivism, naturalism,
and realism finds most support in the evidence of judicial response to au-
thoritarianism in Latin America? Any effort to operationalize the theoreti-
cal predictions sketched above, to formulate them is a manner susceptible to
empirical confirmation, raises a host of methodological and epistemological
questions that this article cannot address. The preceding pages offer only
the most abbreviated rationale for the method adopted here, In short, I shall
classify a consistent judicial reliance on discrete rules of positive law-their
canonical wording and their authors' specific intentions-as reflecting a
commitment to legal positivism. I shall categorize a consistent judicial reli-
ance on more general moral principles, whether thought to be embedded
within applicable textual authorities or external to them, as indicative of a
commitment to naturalism. Finally, I shall classify a strategic choice be-
tween reliance on rule versus principle, where either of these could justify
the court's result, and where that choice is made in light of the audience's
anticipated response, as suggestive of a commitment to legal realism. That
jurisprudential disposition may also be displayed, for present purposes,
whenever a court resolves a dispute by a discriminating factual inquiry into
what the government's policy objectives (e.g., defending society against a
violent, organized threat to public order) really require in the circumstances
of the case at hand, assessing the likely consequences of alternative
resolutions.
Prior students of the question, such as Cover and Dyzenhaus, have
gravitated toward cases in which the judge faces a relatively clear conflict
between the demands of critical morality and those of positive law. In these
cases, positive law is so repressive and so unequivocal in its meaning that
the judge has been painted into a comer from which only naturalism can
rescue him. This empirical focus tilts the analysis inevitably in favor of nat-
89. Snyder, 15 Lawyer of the Americas at 509 (cited in note 10).
uralism, the virtues of which are well displayed by such cases. But this sam-
pling bias is methodologically indefensible. If one jurisprudential position
more effectively sensitizes the judge to radical evil than do other positions,
or more effectively emboldens him to resist it, then we would expect to find
that judicial resistance to oppressive law most commonly takes this jurispru-
dential form, even when the decision to resist could have been reached
through other jurisprudential stances. In many cases, when the judge has
available multiple arguments of rule, principle, and policy in favor of the
same result, we should uncover which of these types of argument is in fact
most often invoked in resistance and which least often employed to that
end. If one type of argument predominates, or predominates in certain cir-
cumstances, this becomes important precisely because the others were so
readily available to the judge as well. The very fact that in such cases the
path of resistance is logically available to judges of all jurisprudential persua-
sions permits us to see more clearly how the social or psychological
processes set loose by their conflicting theoretical commitments lead them
to set foot on this path with unequal fervor and frequency.
My objective, after all, is to examine the causal links between jurispru-
dential ideas and judicial conduct that operate independently of logical in-
ference, since a nonideal theory of adjudication cannot assume perfect
rationality on the part of judges. It is axiomatic that all three paths of resist-
ance are logically open to judges in virtually all cases, given sufficient judi-
cial dexterity. In other words, all three positions-in the hands of a judge
with a modicum of rhetorical ingenuity-have an infinite capacity to
redescribe a situation in their favor. To be sure, this does not mean that all
such redescriptions will conform equally with professional conventions con-
cerning what makes a legal argument "persuasive." Hence there may be
cases in which a given theory cannot persuasively articulate the judicial
impulse to resist, that is, articulate it in ways that will not raise lawyers'
eyebrows for dropping beneath some threshold of professionally acceptable
discourse.
For these reasons, my "sample" of cases includes all those that reach
the Supreme Court and implicated fundamental rights of individuals against
the state. The nonideal question has to be: Given the lay of the land, the
actual social and political terrain in which judges have to maneuver, what
theory (or theories) would we like them to have up their sleeves? The an-
swer turns on which theory makes resistance (i.e., without martyrdom) easi-
est in the greatest number of morally significant cases, that is, resistance
within professional conventions about persuasive legal argument. I empha-
size the underestimated power of positivism in that regard. But if it turns
out, from the study of other authoritarian regimes, that there are dozens or
hundreds of cases where positivists cannot lift their little fingers (in profes-
sionally acceptable ways) but naturalists can forge heroically on, that bears
crucially on what we would want our judges to have up their sleeves. Know-
ing that sometimes positivists will outperform naturalists, we still would ra-
tionally prefer naturalists if we thought that in many cases positivists cannot
compete at all.
90
The present inquiry can therefore offer only modest and
provisional conclusions.
II. JUDICIAL RESPONSE TO MILITARY RULE: TWO
CASE STUDIES
The analysis that ensues compares judicial response to authoritarian
rule in Argentina and Brazil.
91
In each case I seek to determine three things:
(1) the jurisprudential form in which authoritarian rulers couched the legal
defense of their regime and its policies; (2) the jurisprudential form in
which judicial resistance and resignation to the regime and its policies was
cast; and (3) the response of authoritarian rulers to judicial resistance. The
relation between the first and second of these variables proves decisive in
identifying the presence or absence of common dialogue between the re-
gime and its judiciary. The third variable proves important in indicating
how the effectiveness of judicial resistance is influenced by the alternative
jurisprudential forms in which it can be expressed.
92
The Supreme Courts of
both Brazil and Argentina have long possessed the authority to evaluate the
constitutionality of executive acts.
93
The likelihood of conflict between the
Court and authoritarian rulers was therefore inescapable.
A. Argentina, 1976-1983
1. How the Generals Hoped to Use the Law
The military officers who ruled Argentina were not as thoroughly com-
mitted as most of their Brazilian counterparts to preserving the appearance
90. I owe several of the observations in this paragraph to Donald Herzog.
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.
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 Martin Feinrider, "Judicial Review and the Protection of
Human Rights under Military Governments in Brazil and Argentina," 5 Suff. Transnat'l LJ.
171 (1981); N. Nadorff, "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").
93. For Argentina, the leading case is Ex Parte Sojo, 32 Falos de la Corte Suprema 120
(1887); for Brazil, see Pinto Ferreira, Curso de Direito Constitucional 372-78 (Rio de Janeiro:
Forense, 1980).
of the rule of law. In fact, among those defined as "subversives" were found
to be not only "cheap humanists, nonconformists, and angry youth" but also
"ingenuous legalists," in the words of one of the juntas' legal apologists.
94
Unlike in Brazil, there was no powerful faction of "legalist" officers dedi-
cated to keeping the agents of political repression within even the most
indulgent legal bounds. The repression was also much more extensive, in
that over 9,000 citizens were murdered.
95
Military tribunals, moreover,
played a much smaller role in Argentina, where the vast majority of "disap-
peared" were dispatched to their deaths without legal proceedings of even
this most summary Sort.
96
The ruling juntas could not afford, however, to
shed all legalist pretensions. This was in part because of the bad publicity
resulting from the pressure brought by human rights groups in international
forums.
97
But still more important to the juntas was the continuing support
of domestic elites such as the judiciary and legal profession (as well as other
middle-class groups), whose cooperation depended at least in part on the
legal continuity and security that the new regime promised to provide.
Preserving this appearance of legal continuity was more important to
the Argentine juntas than to the Brazilians, even though-and perhaps be-
cause-they intended in practice to violate the most fundamental rights in
so much more extensive a fashion. To be sure, the first junta discharged
many judges and claimed authority to revise both statutory and constitu-
tional law, wherever necessary. But it did not describe the foundations of its
94. Carlos Horacio Dominguez, La Nueva Guerra y El Nuevo Derecho: Ensayo Para una
Estrategiajuralica 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 Garz6n
Vald~s, El Poder Militar en la Argenina 1976-1981 (Buenos Aires: Editorial Galerna, 1982).
95. Nunca Mas: Report of the 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 esti-
mates, see Alison Brysk, "The Politics of Measurement: Counting the Disappeared in Argen-
tina," 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").
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 ihe state's victims were held "at the disposal of the execu-
tive," i.e., in official recognition of their detention. Even when detention was officially ac-
knowledged, 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.
97. On the juntas' efforts at public relations in international arenas, see lain 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 Katheryn Sikkink, "Human Rights Issue-
Networks in Latin America," 47 Int'l Organization 411 (1993). No such extensive interna-
tional efforts were exerted against the Brazilian military regime, particularly during its first few
years, when judicial resistance was at its height.
power as "revolutionary." Its authority derived from the state of emergency
that had justified its intervention and that established the proper limits of
its extraconstitutional powers.
98
Moreover, the junta decreed that all ex-
isting law remain in force to the extent that it was not specifically derogated
by military enactment. Such enactments could thus be interpreted on the
presumption that they were intended to cohere with prior law. Prior law on
questions of fundamental individual liberties was quite liberal, by all ac-
counts. This possibility of legal continuity in respect to individual liberties
made it considerably easier for many judges to justify to themselves their
professional service to the state under such conditions.
9
9
On seizing power, the armed forces declared a state of emergency, in-
voking Article 23 of the Argentine Constitution in legal defense of this
action. Article 23 permits such a declaration when the survival of the state
is threatened by foreign invasion or by the disruption of domestic order.
00
Under Argentine law, like that of many nations, the declaration of an emer-
gency situation permits a temporary suspension of all constitutional and
statutory rights, to the extent that their exercise proves inconsistent with
the measures necessary to ensure that the state survives the emergency. But
despite this public appeal to a provision of positive law, the legal arguments
offered for the coup were only minimally and superficially positivist in char-
acter. First the junta declared itself to be the exclusive source of law, bound
by no preexisting statutory or constitutional provisions inconsistent with its
decrees.
10
' The junta thereby acknowledged the source of its authority to
derive ultimately from outside of the constitution and, thus, to require no
support in positive law. Its appeal to Article 23 was for this reason much less
sincere or significant than its more frequent appeal to the right of a nation-
state to resist an imminent threat to its survival, a right said to be "inherent
in the fact of national sovereignty."
The jurisprudential foundations of this right might plausibly have been
sought in many places, but in practice it was simply embraced as an article
of faith, too self-evident to merit theoretical defense. The transparent disin-
genuousness of the junta's invocation of positive law became even clearer
over time, as its conduct revealed that it had no intention of honoring the
restrictions the Court had sought to impose on the scope of emergency pow-
ers. Legal doctrine in Argentina, as elsewhere, has always conceived the
state of siege as a defensive measure for preserving the constitutional order,
98. Dominguez, La Nueva Guerra 556-57 (cited in note 94).
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. Consti-
tucin de la Naci6n Argentina (1953).
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).
101. Estatuto par el Proceso de Reorganizaci6n Nacional (25 March 1976), C Anales
de Legislaci6n Argentina.
not as a means of restructuring the state in an enduring and fundamental
way.
10 2
Yet this is precisely what the regime sought to do, as when it in-
voked emergency powers to abolish Congress and expressly assume legisla-
tive functions.
Moreover, in a court of law the military's declaration of a state of emer-
gency would have been judicially repudiated by any conscientious positivist,
because Article 23 provides that only the president of the nation is consti-
tutionally entitled to declare a state of emergency. The elected president,
however, had been removed from office by the coup itself. Judicial coopera-
tion was ensured at the outset by a purge of the bench and the appointment
of new judges supportive of the coup. The courts nevertheless preferred to
evade, as beyond their jurisdiction, the issue of whether military declaration
of a state of emergency could be constitutional.
10 3
Thus, the judiciary did
not seek to provide explicit sanction from within positive law for the advent
of military rule. In sum, positivist appeals played no central role in the re-
gime's legal arguments for its own creation, nor did the courts seek to give
such arguments their imprimatur.
After the establishment of the regime, positivism continued to play no
significant role in the defenses offered by its legal apologists for specific
policies and activities. Although repressive measures were sometimes ex-
pressed via formal decrees,
14
these were invariably couched with such im-
precision as to confer virtually unlimited discretion on the administrative
bodies charged with enforcing them.
105
The virtues of certainty and predict-
ability stressed by positivists were entirely absent from such ostensible rules
of positive law. Legal positivism, moreover, was uniformly denounced from
the podiums of the state's law schools.
106
The legal theorists favored by the
regime were virulently antipositivist.
10 7
One figure in this regard, Lt. Col.
Carlos Horacio Dominguez, devoted many pages of critique of Hans Kelsen's
102. On the doctrine governing state of siege within Argentine law, see Germn J.
Bidart Campos, 1 Tratado Elemental de Derecho Constitudonal 202-7, 515-25 (Buenos Aires:
Ediar, 1988).
103. This issue had come to be treated in Argentine jurisprudence as a "political ques-
tion," beyond judicial jurisdiction. See Antonio Sofa, 243 Faos 504 (1959).
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.
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
Reorganizaci6n 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.
106. Jaime Malamud-Goti, The Game without End: Terror, Justice and Democratic Transi-
don in Argentina 54 (forthcoming 1995) (describing the intellectual atmosphere in the Law
Faculty at the University of Buenos Aires).
107. Dominguez, La Nueva Guerra 628, 651 (cited in note 94) (condemning "rationalis-
tic formalism" and judicial preoccupation with legal technique as "a luxury we cannot
afford").
insistence on the irrelevance of political judgment to legal reasoning.
108
The
naturalist jurisprudence of the Third Reich concentrated its attacks on the
positivist separation of law from "morality"-from the transcendent values
thought to be embedded within national culture.
19
But the legal ideologists
of the Argentine junta focused their attack instead against the positivist
separation of law from politics-from the political acumen needed by judges
to ensure that their rulings, however well-founded within positive law, did
not produce disastrous unintended consequences for their society.
110
This special attentiveness to the unwitting impact of law on society led
naturally to a special concern with ensuring that those charged with apply-
ing the law had acquired an adequate understanding of the forces actually at
work within the social world before them."' These preoccupations ensured
that a version of "legal realism" quickly became the jurisprudential form
favored by the Argentine military regime. Thus the writings of its legal apol-
ogists are as full of favorable references to Roscoe Pound, Felix Cohen, Karl
Llewellyn, and Jerome Frank
12
as they are filled with critical allusions to
Kelsen. "The task of jurisprudence," wrote one such Argentine theorist, "is
to extract from everyday life the conclusions appropriate for the derivation
of law and values." "No legal theory is valid," he continued, "if it does not
emerge from lived experience and concrete knowledge, if it is based on an
outmoded conception of reality." For this reason, "[t]he legal order does not
permit 'fictions' or mere theories that are alien to the concrete reality of a
time
and place."'
13
What, then, was the concrete reality about Argentine society which
the law so needed to grasp if it was to avoid producing unintended and
unfortunate societal effects? The central feature of this reality, it was ar-
gued, was the threat posed by the activities of left-wing revolutionary move-
ments, activities very different from those against which the positive law
had been designed to protect.
1 4
Whereas the law contemplated "common"
criminals who often felt remorse and who therefore could potentially be
reformed, Argentine society was now threatened by those motivated by ide-
ologies that fostered pride in their criminal conduct, making them unsus-
ceptible to rehabilitation.'
5
While the law contemplated only the most
ephemeral emergency situations, the one the country now faced was of in-
108. Id. at 585-90, 615, 628.
109. See, e.g., Muiller, Hider's Justice 68-81 (cited in note 52).
110. N~stor P. Sag(16s, "Valores Jurfdicos y Valores Polfticos," 54 El Derecho 176 (1975);
Dominguez, La Nueva Guerra 585-90.
111. Dominguez, La Nueva Guerra 479, 573-74.
112. Id. at 474-75, 477, 485.
113. Id. at 479-83.
114. Id. at 470, 483, 489-93.
115. Id. at 353, 490, 641-42 (concluding that subversives, once "brainwashed" by Marx-
ism, are "irrecuperable").
definite duration.
116
This was because revolutionary movements did not
spring indigenously from the nation's social problems, but rather exoge-
nously from an international movement sponsored by an imperialist super-
power.
117
As long as the external source of sponsorship continued to exist,
the possibility of internal revolutionary resurgence could never be dis-
counted. A further consequence was that though the emergency faced by a
particular society might come and go, the real emergency was the larger one
from which these smaller, transient emergencies derived, one faced by the
Western world as a whole. The longstanding conception of emergency pow-
ers within constitutional doctrine as necessarily temporary was therefore un-
responsive to the new sociopolitical reality that the law confronted.
There was no reason, moreover, why the legal system should have to
wait until the threat of revolution began to border on the imminent and
irresistible before taking reasonable measures to defend the society it was
established to protect. In particular, societies that were politically unstable,
because the configuration of political forces often changed quite rapidly,
revealed that the escalation from one stage of revolutionary mobilization to
the next could often occur with little anticipation. In such circumstances,
those whom the law had charged with protecting society's continued exist-
ence could not hope to calibrate the timing of its repression of revolutionary
activity with the degree of precision possible elsewhere.
118
When the unin-
tended consequences of responding "too late" were so severe, there was less
cause for concern about the possibility of responding "too early."
If this was the social reality confronted by Argentine law, how could
legal doctrine best be interpreted to respond to its challenge? Most impor-
tant, the Argentine constitutional law embodying liberal principles of toler-
ance for dissent could not be "mechanically" applied in circumstances
where the society's central institutions were imminently threatened by the
activities of those dedicated to its destruction, activities protected by these
constitutional guarantees
119
The preoccupation of legal positivism with the
application of rules, in the light of legislative intent, fostered a view of the
law that was too rigid and inflexible in dealing with an unprecedented type
of threat to national survival, one that could not have been anticipated by
those who drafted the nation's law.
12
o
It is striking that natural law played so minor a role in the legal argu-
ments of rulers who often spoke of their regime-in nonlegal contexts-as
116. Id. at 549, 567, 572, 593.
117. Id. at 572, 583.
118. Id. at 564, 590 (contending that fighting a revolutionary enemy requires "all-out
war and no half measures").
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").
120. Id. at 545-47, 573.
created specifically to defend Christianity (not merely Western civilization)
from the global Communist threat, rulers who were themselves regular
church-goers. Catholic thinkers have been the principal carriers of natural
law theory within modem jurisprudential debate, in Latin America as else-
where, and the Catholic church remained one of the principal institutional
bulwarks of support for the Argentine military government.
121
Nevertheless,
the legal realism adopted with such enthusiasm by the regime's theorists led
them to stress the nation's current problems and contemporary realities.
This emphasis was apparently considered too inconsistent with an effort to
defend the establishment of the regime or its particular policies in terms of
timeless and inalterable moral truths.
After all, Lt. Col. Dominguez conceded, the history of the Crusades
and of the Inquisition revealed that even the Catholic church had found it
necessary to deviate from its moral principles when scrupulous adherence to
them appeared to threaten its institutional survival. The repeated invoca-
tion of timeless verities and eternal principles would have been politically
inconvenient, moreover, because the Argentine military, unlike the Third
Reich, always stressed that it would return power to civilians as soon as the
emergency had passed and order had been restored. The junta therefore
found it more congenial to couch the legal defense of its rule in terms of
society's ever changing needs-which required military rule today but not
necessarily tomorrow-rather than in terms of an unchanging natural law,
which would inevitably have suggested a more permanent and invariant
role for whomever sought to rule in its name.
Legal apologists of the juntas did not hesitate to call for particular
changes in substantive law and to criticize specific aspects of Argentine
legal doctrine, such as its prevailing liberal views of due process, the pre-
sumption of innocence, individual culpability, nulla poena sine lege, the ab-
sence of any provision for martial law, and the limited jurisdiction of
military courts. Some such legal changes could not be made publicly; secret
laws were necessary.
122
The dangers posed by such methods were ines-
capable: "[I]t is better to risk possible abuses of governmental power than to
allow society to become defenseless against its enemies."'
1 3
Yet though the military had explicitly assumed both constitution-cre-
ating powers and legislative authority, its apologists did not propose that
such doctrinal changes be effected by constitutional or statutory revision, or
direct their suggestions principally to the junta. They spoke instead about
how courts should "rework" and "readjust" existing doctrine in the direc-
121. See Emilio Mignone, Witness to the Truth: The Complicity of the Church and Dictator-
ship in Argentina, 1976-1983 (New York: Orbis Books, 1986).
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").
123. Id. at 572.
tions they proposed. As with the legal theorists of Nazi Germany, their view
was that the judiciary should be rationally persuaded to abandon the posi-
tivism that remained its preferred jurisprudential perspective, and that such
a transformation in professional culture would make legislative revision un-
necessary. In both the Third Reich and the juntas' Argentina, the codifica-
tion and legal formalization of political repression was disfavored, then, in
part because it raised questionable judicial practices to the level of a visible
and general rule that might otherwise have appeared limited to a restricted
range of fact-specific cases,
But in the Argentine case, two additional factors counseled against the
"positivization"
of repression. First, the jurisprudential
commitment to legal
realism led the juntas' legal apologists to the conclusion that judicial sensi-
tivity to the specific facts and societal repercussions of particular cases of-
fered a more effective response to an ever changing social reality than could
any revision of the broader generalities of constitutional and legislative pro-
visions.
124
General rules of positive law, formulated in advance of applica-
tion, could not grapple effectively with the ever shifting operational
necessities of fighting a counterrevolutionary war where the enemy wore no
uniform and the field of operations was not confined to any identifiable
battlefield.
125
Second, the avowedly temporary character of military rule in
Argentina, in contrast to the millennial aspirations of the "thousand year
Reich," cautioned against providing a legal rationale that communicated
the relative permanency of constitutional change.
2. How the Judiciary Responded
There was little in the sorry history of the Argentine judiciary to sug-
gest that it would offer any significant obstacle to military rule. Constitu-
tional guarantees had been effectively suspended for nearly half the period
between 1930 and 1970. The Supreme Court had felt compelled formally to
recognize the seizures of power on five occasions since 1943. Justices had
been forced to pledge loyalty to the goals of the military regimes, and their
ranks were repeatedly purged of holdovers from civilian ones.
126
As it had
done after prior coups, the Supreme Court in 1976 invoked the "political
question" doctrine to resist challenges to the military's seizure of power and
its declaration of a state of emergency.
127
Legal philosophy was made com-
124. Id. at 470-71, 549, 560-61 (contending the "judicial understanding of the nature
of the international revolutionary phenomenon is indispensable").
125. Id. at 577. This skepticism about rules reflects the officers' jurisprudential assump-
tions, i.e., their antipositivism and their affinity for a "pragmatic" version of legal realism.
126. Keith Rosenn, "Judicial Review in Latin America," 35 Ohio St. LJ. 785, 813
(1974).
127. Antonio Sofia (cited in note 103). See also Carlos Nino's discussion, "On the Exer-
cise 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
plicit in these various capitulations. "The doctrine of de facto laws," as Car-
los Nino observed, "was an expression of an ideological variety of
positivism-quite different from the conceptual one defended by Kelsen,
Ross, and Hart." This ideological version "committed the naturalistic fallacy
of concluding from the mere fact that law exists that it provides good rea-
sons for justifying decisions and actions."'
28
Yet it would oversimplify matters greatly to classify the Supreme
Court's conduct in these years as capitulation, pure and simple. It was in
fact an ambiguous mixture of capitulation and resistance. It evokes ambiva-
lence regarding its moral defensibility on that account. On one hand, the
Court periodically sought to limit the restrictions on constitutional liberties
that could be imposed under the authority of a state of siege. This judicial
recalcitrance went so far as to provoke a coup attempt by hard-line elements
within the officer corps, unwilling to obey the Court's judgments.1
29
On the
other hand, however, the Court backed away from direct confrontation
with the juntas whenever possible, giving it the benefit of every doubt, and
often refused to apply the very legal standards it found applicable to the
cases before
it.
130
Habeas corpus was granted in favor of a few of those illegally detained
by the armed forces.'
3
' But in the vast majority of cases, where the execu-
tive denied holding the individuals in question, the Court confined itself to
ordering the executive to conduct a thorough inquiry.
132
The Court upheld
the constitutional right to leave the country, in lieu of being detained dur-
ing a state of siege, against the executive's efforts to detain an individual
under house arrest.
133
But the Court ruled constitutionally permissible a
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 L6pez Forastier,
La Crisis del Estado de Derecho 129-32 (Buenos Aires: Editorial de la Fundaci6n R. Scalabrini,
1982).
128. Nino, "Exercise of Judicial Rule" at 18.
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).
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 ulti-
mate conclusion." La Corte Suprema 8 (cited in note 6).
131. See Jacobo !Timerman, 300 Falos 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.
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.
133. Carlos Mariano Zamorano, 298 Falos 441 (1978) (interpreting art. 23 of the Consti-
tution); Benito Moya, B.L.L. (1981).
host of statutory restrictions on the exercise of this right, restrictions that
had the clear effect of granting the president untrammeled discretion in
every individual case.
134
The jurisdiction of military tribunals was restricted
to a narrower range of cases than that over which the armed forces had
sought to exercise it. Yet the remaining range of military jurisdiction was
still far in excess of what even conservative constitutionalists thought the
Argentine Constitution to permit.
135
Discharge from the civil service for
suspicion of being a "subversive" was ruled to be a violation of the em-
ployee's right to due process. But the Court held that a severance payment
constituted a constitutionally adequate remedy, that is, that there was no
right to reinstatement.
136
Where the Dirty War was not directly implicated,
the constitutional rights of defendants fared somewhat better.
137
For present purposes, the most significant feature of this judicial recal-
citrance is the extent to which it operated almost entirely within the re-
gime's own preferred jurisprudential form-legal realism. This search for a
common idiom was not compelled by the legal tradition within which the
Justices operated. In its past, the Court readily appealed to a naturalist id-
iom when challenging military violations of constitutional liberties.
138
The
Court, in short, knew how to make arguments of moral principle when it
wished to do so. The Justices acknowledged that the constitutional doctrine
of emergency powers must be interpreted with a view to the actual nature of
the emergency confronted by the country, that is, in light of the concrete
reality of the threat posed to constitutional order. The Court thus held that
the standard for judicial review ought to be whether a given executive mea-
sure was reasonably required to ensure the state's survival during the revolu-
tionary crisis.'
39
This test required the Justices to conduct a discriminating
factual inquiry into whether particular measures, as applied to facts alleged
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 sub-
versive activities"). See also N~stor Navarro, B.L.L 488 (1981).
135. Eduardo Hildrio Silva, 274 Fallos 283 (1969). German Bidart Campos, Los Tibunales
Militares y la Constituti6n 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.
136. Chapla, 301 Failos 410 (1979); see also Enrique Groisman, "El debido proceso en la
adminstraci6n y su control judicial," 2 Rev. Assoc. Abogados B.A., Nov. 1979.
137. Evidence against criminal defendants obtained under torture was ruled inadmissi-
ble, 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.
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 republi-
can form of government").
139. Primera Plano, 7 Jur. Arg. 301 (1970); 301 Failos 1010 (holding that executive de-
crees and institutional acts taken subject to a state of siege are constitutional "to the extent
against a particular defendant, met the requirements of this test. This sort of
inquiry requires a jurisprudence of realism, as I have used the term. The
Justices' debt to realism is apparent as well in their recourse to the social
policy underlying the positive law of emergency powers-the policy of pro-
tecting the general welfare by restricting only such liberties as is necessary
to ensure the state's survival.
The conflicts between Court and junta, then, took place within a com-
mon jurisprudential framework, within a shared set of assumptions about the
nature of adjudication and legal reasoning in such circumstances. While the
antagonists agreed on the need for legal interpretation to take account of a
changing social reality, they differed significantly in their understandings of
the nature of that reality. The Justices chose to interpret this standard so as
to place a demanding burden of proof on the executive, a burden the execu-
tive often failed to meet to the Court's satisfaction. According to this stan-
dard, an executive measure had to be "reasonably" tailored to advance the
limited objective of Article 23: the restoration of constitutional order by the
temporary suspension of the freedoms whose exercise had contributed signif-
icantly to the creation of the emergency situation.
Most important, the Court insisted that the executive provide "partic-
ular facts in each case,"
140
establishing the direct contribution of the de-
tainee's activities, as an individual, to the circumstances that had created
the need for a declaration of emergency. This entailed a duty to demon-
strate that the individual was an active member of one of the revolutionary
organizations and had either participated in violence against the state or
had been captured in the process of preparing to do so. By this standard, it
was insufficient for the executive to argue, for instance, that an exercise of
the freedom of association for the purpose of organizing nonviolent opposi-
tion to an official policy could be possibly curtailed under Article 23 on
grounds that others, at the outset of the emergency, had used this freedom
to mobilize the organizational apparatus of revolutionary violence.
Judicial resistance to executive measures was often based not only on
the limits to emergency powers under Article 23 but also on express qualifi-
cations contained within the regime's own promulgations. In its founding
documents, for instance, the junta introduced the qualification that its
emergency measures were to become part of the Constitution only "to the
extent that the causes that gave rise to [such measures] continue to exist."
These measures were "not to prejudice any other rights reasonably compati-
that the causes of the emergency continue to exist, i.e., a true state of emergency requiring
such measures to overcome it").
140. Zamorano (cited in note 133); Tmeran (cited in note 131) (holding that the exec-
utive'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 enun-
ciated in Zamoraneo").
ble with them."'
141
Through such language, the military provided the basis
for judicial reassessment of these measures at later points, on the ground
that the conditions that had given rise to them no longer prevailed. The
junta itself had publicly conceded that the revolutionary movements, whose
strength had justified the 1976 coup, had been all but crushed in the first
years of military rule.
142
This suggested that the emergency had passed to
some extent and that the Court could therefore treat to this same extent all
rights suspended by emergency measures as restored. Without stating this
conclusion directly, the Court's continued skepticism toward repressive
measures reflected a partial commitment to it. Thus, in a quiet way the
Court sought to question whether the circumstances that had justified the
initial declaration of a state of emergency in 1976 continued to exist in
subsequent years. This questioning was also implicit in the Court's insis-
tence that those known to have been detained long after the declaration of
emergency be shown, nevertheless, to have been "involved in the circum-
stances that gave rise to it."
In short, the Court insisted on a role in defining which class of persons,
engaged in the exercise of which constitutional and statutory rights, could
genuinely be seen as threatening the survival of the Argentine Constitu-
tion, and therefore be deprived of these rights. As to the vast majority of
detainees, the executive had no evidence connecting them directly to revo-
lutionary violence and was unwilling to provide whatever information it did
have to a court. The junta and its legal advocates were therefore unable to
satisfy the criteria for achieving the objectives of political repression within
the terms made available by positive law, as interpreted by the Court.
Where the Court failed was not in the fact that it chose to use such "realist"
criteria, but rather in its ultimate unwillingness to push them to their logical
conclusion: to order release of detained defendants against whom the gov-
ernment would not provide compelling evidence of links to guerrilla
organizations.
143
The military junta had not anticipated that the Justices appointed by it
would insist on so independent a role. In fact, the Court's decision to order
the release of one well-known detainee, journalist Jacobo Timerman, pro-
voked enormous dissension within the armed forces about whether to com-
ply with the Court's ruling. The more hard-line faction of officers even
attempted an unsuccessful coup against those then in highest office, who
were prepared to comply in part with the Court's order. No faction of the
corps was satisfied with the degree of judicial cooperation in military rule.
The officers' sentiments in this regard ensured that the political repression
141. Ley "de facto" 21258.
142. Andersen, Dossier 169 (cited in note 129).
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).
within Argentine would come to operate independently of any judicial
oversight. Thus, the nationwide system of 340 detention centers, where de-
tainees were tortured and murdered in large numbers, was organized and
administered by the armed forces without any reliance on the law of crimi-
nal procedure or on substantive criminal law administered by the judiciary.
The implementation of key executive policies circumvented the judicial sys-
tem even more than in the Third Reich, where negotiations regularly took
place over particular cases between members of the judiciary and represent-
atives of the extralegal apparatus.
144
This was in great part because judicial
deference to such policies also proved considerably less pervasive within
Argentina than in Nazi Germany.
45
Hence, while the German bench was
at least apprised of the existence and activities of institutions which circum-
vented its jurisdiction, the Argentine bench was largely denied this
information.
Not all of the Argentine Court's defiance of executive policies was
couched in the jurisprudential form of legal realism. Many such judicial rul-
ings were formulated in terms that were unmistakably positivist. They were
reached, in other words, by subsumption of the case under an existing rule,
whether enacted by the legislature in accord with constitutional procedures
or expressly embodied in the Constitution. The extent to which this was so
may strike us as surprising. One might think that rulers who were willing to
seize power by coup d'&at would be willing and able a fortiori to modify the
positive law so that it could pose no possibility of challenge to their exercise
of power. The common assumption that authoritarian rulers must surely do
precisely this is probably what led the participants in the Hart/Fuller debate
to focus exclusively on cases in which positive law-and hence positivist
forms of legal reasoning-offered no possibility of judicial resistance to op-
pressive enactments.
The history of authoritarian rule in Latin Europe and Latin America,
however, belies the assumption that positive law is invariably transformed
so as to offer no significant opportunities for judicial defiance. The Argen-
tine juntas, like many authoritarian rulers, wished to portray their regime as
a temporary stop-gap measure aimed only at reestablishing order, rather
than at permanently transforming the nation's political institutions. Their
stated aspirations were disarmingly modest: not to introduce a new concep-
tion of man, society, or government but simply to restore the political pro-
cess to a condition of harmony with its own long-established principles and
rules, a harmony allegedly disrupted by the ephemeral crisis that made nec-
essary the declaration of a state of emergency. This self-presentation was
144. Miler, Hitler's Justice 174-82 (cited in note 52).
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).
important to winning collaboration from civilian elites, particularly from
potential judges.
146
For this kind of claim to achieve any credibility in the
eyes of the domestic public and key international actors, on whose coopera-
tion the new regime's success may depend, new authoritarian rulers often
feel compelled to affirm the continuing efficacy and availability of all prior
positive law. They quietly add the proviso, of course, that such law shall be
judged repealed to the extent that it is inconsistent with the executive's
formally promulgated policies. This way of stating the regime's stance in
relation to the nation's legal heritage has the considerable advantage of
characterizing departures from preexisting law as inherently case-specific
and "exceptional," even when they actually come to constitute a new and
very different rule.
The effect of such executive pronouncements, like those of the Argen-
tine junta, is to establish a formal presumption in favor of the continuing
validity of positive law and to leave open to the judiciary the task of deter-
mining whether that presumption is sufficiently rebutted in the particular
case.
147
The judiciary is therefore empowered to determine whether a partic-
ular rule of preexisting law is or is not inconsistent with any of the regime's
publicly enunciated policy measures. It may strike us at first as preposterous
that a court could hope to reconcile the emergency measures of military
rulers with any significant portion of the public law developed under the
prior constitutional regime.
148
But we should be intimately familiar from our
own experience with the judicial task of ascertaining the uncertain extent
to which a new statute can be said to have repealed prior law. In such
circumstances of competing principles, a conventional maxim of statutory
interpretation encourages the reconciliation, whenever possible, of the new
enactment with preexisting law, unless the legislative intent to repeal such
prior law is unequivocal. Thus the Argentine Court, citing this very maxim,
saw no contradiction in its effort to read the pronouncements of the mili-
tary junta in a way that would permit preexisting law to operate with con-
tinuing effect. In this way, the Court was led to uphold the rights of citizens
under sources of positive law that antedated the military seizure of power,
even when the apparent purpose of a military measure was precisely to elim-
inate such rights.
149
146. Justice Gabrielli, La Corte 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.
147. This method is described and defended in German J. Bidart Campos, La Corte
Suprema: El Tibunal de las Garantfas Constitutionales 191 (Buenos Aires: Allende & Brea,
1982).
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.
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.
The most oppressive policies of an authoritarian regime are the ones
least likely to have been officially enunciated, and are thus unlikely to be
available as an authoritative counterweight to the judicial application of
contrary law. The policy of murdering thousands of political dissidents and
their acquaintances, of course, was never formally enunciated by the Argen-
tine junta. To the extent that a judge was kept in the dark about such
policies, he could scarcely have been expected to invoke them for the pur-
pose of trumping contrary rights enshrined in positive law. It has been, in
part, the unwillingness of authoritarian rulers to publicly enunciate their
most oppressive policies that has prevented judges from facing situations in
which such pronouncements might be held to overrule the entitlements of
positive law. This same unwillingness, no less than that of the judiciary to
implement such policies, has led authoritarian rulers to circumvent the judi-
cial apparatus for prosecution and punishment when attacking their most
important domestic targets.
3. Conclusions on the Argentine Experience
The Argentine experience suggests the partial accuracy of Fuller's
view, when qualified, that even the most ruthless dictators often prove re-
luctant to offer courts and the public unabashed defenses of the morality of
their most radically evil policies. This is not, however (as Fuller thought),
because the rulers fear their purposes will be exposed as inconsistent with
standards of rationality they share. Rather, it is simply that others, mis-
guided by liberal ideology but powerful in international forums, will find
these policies morally indefensible. In both the German and Argentine
cases there was considerable effort to maintain the secrecy of these policies,
an effort which precluded any public defense of their existence, whether
couched in terms of natural or positive law. In sum, the desire of authorita-
rian rulers in Argentina to minimize the appearance of discontinuity with
the democratic, constitutional past often led them to affirm the validity of
preexisting positive law. Those who were hostile to the new regime regarded
such affirmations, to be sure, as inauthentic. But those who sympathized
with the regime to the point of willingness to accept judicial office under it
were more prepared to take such affirmations at face value and to act on
them in the belief that they were sincere. This was clearly true of the mem-
bers of the Supreme Court. In many cases they interpreted the scope of
emergency measures narrowly, so as to allow their reconciliation with a
more liberal, preexisting law; this maneuver, entirely compatible with posi-
tivist canons of legal reasoning, permitted the Court to uphold preexisting
rights under positive law.
It may be surprising that, in contrast to Brazil, there were virtually no
instances in which a judicial ruling on positivist grounds against executive
activities was followed by an express repeal of the rule of positive law which
had allowed it. The same constraints on the regime that led it to refrain
from repealing such preexisting law immediately upon seizing power were
only tightened when the potential conflict between past law and current
policy materialized concretely in a litigated case. Thus, in their search for
political legitimacy at home and abroad,
50
the Argentine junta unwittingly
provided the tools by which some of its victims could construct a legal chal-
lenge to its conduct, a challenge to which the courts sometimes offered a
sympathetic response. Nevertheless, whereas in Brazil the judicial rebuff led
primarily to ever more repressive legislation, in Argentina it led primarily to
the adoption of clandestine methods of repression altogether beyond the
purview of courts, even military ones.
It is easy to see why citizen litigants, and the Court itself, might prefer
to couch in positivist terms their criticism of policies and enactments re-
garded as morally oppressive, rather than to formulate such criticism in the
more general terms of natural law. The invocation of abstract principle was
more likely to suggest the illegitimacy of the regime itself, rather than
merely one or another of its discrete directives. This is because judicial re-
course to general principles suggests that the regime's policies are incompat-
ible with the most basic and elemental standards of justice. To accuse the
regime's rulers of abrogating general principles of justice necessarily implies
a variety of criticism which is more root-and-branch than the positivists
more specific citation to a delimited rule. The positivist critique allows the
scope of the regime's misconduct to be made to appear much narrower than
the natural law critique permits. In political circumstances where any public
critique carries serious risks for the critic, there has been a powerful impulse
to minimize these personal dangers by couching judicial resistance in posi-
tivist terms, even when actually motivated by moral concerns that, under
more hospitable circumstances, might well have been formulated in the lan-
guage of natural law.
A brief example must suffice. The armed forces sought judicial sanc-
tion for their sustained detention of suspected "subversives" without formal
arrest, indictment, or trial. The legal rationale for this practice was that,
under emergency powers, detention was constitutionally permissible as long
as the emergency itself endured. If the emergency had proven longer than
expected, this was entirely the fault of those-the guerrilla movement-
who had created it. It would be illogical, the regime's legal apologists ar-
gued, if those who had disrupted the social order should be released from
detention on the grounds of their success in prolonging such disorder be-
yond the period foreseen by constitutional drafters.
15
' In a few cases, how-
ever, the Supreme Court repudiated such reasoning and ordered the release
150. Guest, Behind the Disappearances (cited in note 97).
151. Dominguez, La Nueva Guerra 556-57 (cited in note 94).
of citizens who had been detained for long periods without trial. In reaching
this result, the Court observed that the length of their detention indicated
that its purpose could no longer be considered only that of overcoming a
temporary emergency and that its effect had become one of "punish-
ment."'
152
According to positive law, "punishment" could not lawfully be
applied without prior arrest, indictment, and conviction by a court of law.
These statutory procedures had not been followed. The Court thereby rested
its rejection of indefinite detention on positivist grounds-the verbal
meaning of "punishment"-rather than invoking general principles of due
process, as it might easily have done.
In characterizing the conduct of the Argentine Court during military
rule as "resistance," some will object that it was only the most qualified and
mild-mannered of opposition, scarcely deserving of the name. It is true that
the Court did not view itself as resisting the authoritarian regime in a root-
and-branch fashion. Snyder's accusation that they may even have contrib-
uted to its legitimacy would not have troubled them, since they were long-
standing conservatives who had supported the coup and who believed in the
continuing legitimacy of military rule. Their subsequent reflections on the
period reveal that they viewed their task as that of engaging in a dialogue
with the junta, in the expectation that as supporters of the regime they and
their decisions would be received in a spirit of common concern and shared
purpose.
153
As long as the junta acknowledged their decisions to be binding
on it, these decisions could be expected to temper the inevitable excesses of
military rule, without seeking to overturn it. The Court realized that for
such a dialogue with dictators to have any effect on military conduct, both
sides had to share basic assumptions about the law and its interpretation.
These common assumptions were reflected in the Court's embrace,
through its reasonableness test, of legal realism. This was the jurisprudential
form to which the juntas and their legal theorists were committed. The
Justices also understood themselves to be acting on shared assumptions
when they greeted with straight faces the juntas' professed retention of ex-
isting law, however naive the Court's reliance in this regard may have been.
Critics may be correct to suggest in hindsight that these judges flattered
themselves into thinking that their true role could be more than ornamen-
tal and that their resistance to any key policy of the armed forces could
significantly have chastened its implementation. But the very ingenuous-
ness of the Justices about the military's intentions led them also to a much
greater degree of overt resistance than would have been attempted by more
politically astute judges.'
54
The latter would surely have viewed the regime's
152. "!lmerman (cited in note 131).
153. Author's interviews. See also Gabrielli, La Corte Suprema (cited in note 15).
154. Gabrielli's political naivet6 is evidenced, for instance, in his belief that his contin-
ued service on the Supreme Court during military rule was justified by the praise its judgments
garnered from public opinion. La Corte Suprema at 79. By "public opinion," however, it turns
professed commitment to legal continuity with much greater skepticism.
There are times, it seems, when political naivet6 can be functional for the
protection of democratic liberties.
B. Brazil, 1964-1970
1. How the Generals Hoped to Use the Law
The Brazilian armed forces established an authoritarian regime that
sought to use the law and the courts in ways notably different than in Ar-
gentine. The first distinguishing feature of the Brazilian experience was the
degree to which the new military rulers were prepared to acknowledge a
desire to transform the positive law, both constitutional and statutory, in
major ways. Unlike-the rulers of Nazi Germany or of the juntas' Argentina,
the Brazilian military did not hesitate to describe its political aspirations as
"9revolutionary," its regime as "the revolution," and the proper role of the
courts as the advancement of "revolutionary legality.
' 155
Thus, the Brazilian junta did not seek justification for the initial
seizure of power by invoking a constitutional provision allowing declaration
of a state of emergency. Such an allusion to preexisting positive law would
have served to convey a sense of continuity with the past by suggesting that
even so drastic a departure from normal constitutional procedure as a mili-
tary coup was cognizable with the terms of existing constitutional law and
thus potentially compatible with the purposes of its founders.
156
The mili-
tary rulers were unusually candid in their explicit acknowledgment that a
revolution is internally self-justifying, owing no duties to anything but its
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 naivet6 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 uncen-
sored, offered considerable coverage throughout the entire period of military rule of abduc-
tions and disappearances, as well as sympathetic reports on denunciations of the regime by
international human rights organizations. Willful blindness to, rather than good-faith igno-
rance of, the regime's most repressive policies would probably offer a more accurate character-
ization of the mental state of such judges.
155. Institutional Act No. 1 (1964). See Felipe Augusto de Miranda Rosa, Jusdia e
Autoritarismo 13 (Rio de Janeiro: J. Zahar, 1985) ("Rosa, Justipa").
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 sug-
gested that it was this restriction that led the military to assume revolutionary or "constituent
assembly" powers, rather than employing the existing constitutional provision. Soares
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 Corr~ea, A Defesa do
Estado do Direito e a Emergencia Constitucional 64-78 (Rio de Janeiro: Presenca, 1980). On the
common use of such provisions by military rulers throughout the continent, see Diego
Valadez, La Dictadura Constiucional en Alrnica Latina (Mexico City: Universidad Nacional
Aut6noma de Mexico, 1974), and Diego Garcfa-Saygn, ed., Estados de Emergencia en la Region
Andina (Lima: Comisi6n Andina de Juristas, 1982).
own self-declared principles and purposes, and that the officers could there-
fore make their own rules, ignoring those hitherto imposed by positive
law.
157
Nevertheless, the first military administration was led by "soft-line" of-
ficers who saw little need for fundamental transformation of the country's
political institutions or for a long military stay in power.
58
This faction of
the officer corps maintained close relations with civilian elites, who had
largely supported the coup d'6tat.1
5 9
These officers were also deeply commit-
ted to "the rule of law," as they understood this ideal. In this respect, the
methods of military rule in Brazil more closely resembled those of South
Africa's apartheid than of Argentina's Dirty War, in the singular degree to
which the rulers' most repressive policies were publicly promulgated as posi-
tive law.
160
The military's first acts were drafted by Francisco Campos, the
aging legal adviser to former dictator Getulio Vargas. Campos's lifelong
commitment to legal positivism arid his aversion to judicial resort to princi-
ple or policy were very strong.
16
' In his view, if judges were to remain play-
ers in the new political game, loyal servants of executive decree, they would
have to be handed clear rules of positive law.
The traditional historical role of the Brazilian military had been that of
"moderating power," one which intervened in national politics only inter-
mittently and for brief periods to restore a public order that had been dis-
rupted, in the officer's view, by the unconstitutional conduct of civilian
leaders.
62
The officers even understood this role to be enshrined in the
1946 constitution, which compelled their subordination to the president
only as long as he remained "within the limits of the law."'
63
Short-term
military interventions had always been followed by a prompt return to the
barracks. But by 1964 a majority of officers had become convinced that this
repeated cycle of intervention and rapid extrication had failed adequately to
reform the nation's civilian political life and that more fundamental change
157. Institutional Act No. 1, preamble, stating that the armed forces "promulgate ...
legal norms without being restricted to standards that antedate the revolutionary victory."
158. See Eurigo de Lima Figueiredo, Os Militares e a Democracia: Andlise Estrutural da
Ideologia do Presidente Castello Branco (Rio de Janeiro: EdigSes Graal, 1980). No such influen-
tial group of moderate officers, committed to restraining the repression sought by more mili-
tant comrades, existed in Argentina at the time of the Dirty War.
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).
160. Chile under Pinochet would similarly be placed on this end of the spectrum, partic-
ularly after its 1980 constitution. Constable & Valenzuela, Nation of Enemies 127-28 (cited in
note 56).
161. Jarbas Medeiros, Ideologia Autoritdria no Brasil 31-51 (Rio de Janeiro: Fundago Ge-
tulio Vargas, 1978) ("Medeiros, Ideologia Autoritria").
162. Alfred Stepan, The Military in Politics: Changing Patterns in Brazil 57-122 (1971)
("Stepan, Military in Politics").
163. See, e.g., art. 92, Constitution of 1967.
was necessary.'
64
The ruling "legalist" faction, as the soft line came to be
called, thus faced the continuing challenge of maintaining the support of
their harder-line comrades without adopting measures so repressive as to
antagonize civilian allies, whose participation in government (and support
in Congress) was viewed as essential to effective, legitimate governance.
165
The initial resort to "revolutionary" authority did not imply hostility to
the ideal of a law-governed society. The new military rulers promptly rein-
stated the prior 1946 Constitution in all respects save those specifically enu-
merated in their first Institutional Act.
166
This move preserved many of the
basic individual liberties in the prior constitution, including the ability to
challenge the constitutionality of executive and legislative acts through the
courts.
167
Even the regime's most radical breaks with the past, through
which the most uncompromising usurpation of political power into presi-
dential hands was effected, were always accomplished by formal revision of
the constitution and statutory law.
168
Rather than simply murdering their
opponents surreptitiously in the night, for instance, Brazilian military rulers
felt themselves obligated, at least formally, to institute the death penalty for
acts of political "subversion."'
169
In fact, the Brazilian military displayed throughout "a frenzy for law"
and "a penchant for formal legitimacy."'
170
This "reflected the continuing
164. Skidmore, Politics of Military Rule 19; Stepan, Military in Politics 123-88.
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, Justiga 27-28
(cited in note 155).
166. These provisions are quoted at length by Skidmore, Politics of Military Rule 20.
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 Pr~dtica do Habeas Corpus 23 (1972).
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, Justiga 40 (noting the military's "desire to garb
even its most arbitrary acts in formal legal dress").
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. H6lio Bicudo,
Direitos Humanos e Ordem Constitucional no Brasil 36 (Sao Paulo: Editora Atica, 1987)
("Bicudo, Direitos Humanos").
170. Skidmore, Politics of Military Rule 57 (cited in note 92). See also Rosa, Justiga 22.
Leading apologists of military rule among legal thinkers included Paulo Sarazate, A Constitu-
Oo do Brasil ao Alcance de Todos (Rio de Janeiro: Freitas Bastos, 1967); Mario Pessoa, 0 Direito
da Seguran a Nacional (Sao Paulo: Revista dos Tribunais, 1971); and Manoel Gonalves Fer-
reira Filho, Curso de Direito Constitucional (Sao Paulo: Editora Saraiva, 1978), and his A
Democracia Possrvel 73-76 (Sao Paulo: Editora Saraiva, 1972) (defending the declaration of a
state of siege and additional statutory restrictions on individual liberties as necessary to re-
spond 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 Jos6
Ribas Viera, 0 Autoritarismo e a Ordem Constitucional no Brasil (Rio de Janeiro: Forense,
1988).
desire of the revolutionaries, even the military hard-liners, to have a legal
rationale for their assertion of arbitrary authority."1
71
Their power seemed to
them incomplete, even illegitimate, if not codified within a constitutional
and statutory law, albeit a law that was avowedly authoritarian, concealing
virtually nothing of its illiberal intentions. Even the most hard-line military
officers "lacked confidence in their own ability to proclaim and direct a
straightforwardly authoritarian regime," one in which the positive law was
openly admitted to impose no limits on their conduct, "because they feared
the disapproval of international opinion," particularly that of the United
States, which had supported their coup and with which they sought to
maintain close contacts.
172
The hard-liners differed from the soft-liners over the degree of political
repression required and, hence, over the length of time the armed forces
should plan to spend in power.
73
The soft line sought to maintain close
relations with civilian elites, to whom this faction of officers hoped to re-
turn power within the foreseeable future. Since both hard and soft lines
sought to codify their positions in positive law, their disputes often involved
such issues as whether "institutional acts" creating new executive powers or
curtailing congressional ones should carry explicit dates of expiration or
simply operate in perpetuity. The soft line hoped, by formalizing its views
into positive law, to limit the more radical encroachment on civilian powers
and citizens' rights desired by the hard line. The "legalists" expected that
"by codifying the arbitrary powers they considered necessary, [they] could
forestall future recourse to even more arbitrary measures."
174
This strategy
proved only partially successful.
175
It is less clear why the hard line hoped to entrench its own view in
positive law, since it showed much less compunction about circumventing
even the most draconian antisubversive legislation. This appears to have
been due to its inability to imagine and articulate an entirely different,
more aggressive, and unabashedly extraconstitutional rationale of its repres-
sive measures, one requiring no recourse to positive law. As Skidmore ob-
171. Skidmore, Politics of Military Rule 84.
172. Id. This view is shared by Vamireh Chacon, Vida e Morte das Constitui5es Brasiler-
ias 198 (Rio de Janeiro: Forense, 1987). On the regime's relations with the U.S., see Skid-
more, Politics of Military Rule 154-56, and Wayne Selcher, Brazil's Multilateral Relations
(Boulder, Colo.: Westview Press, 1978).
173. On such factional divisions, see Stepan, Military in Politics 229-66 (cited in note
162); Edmundo Campos Coelho, Em Busca da Identidade: o Exftcito e a Poiftica na Sociedade
Brasileria (Rio de Janeiro: Forense, 1976); Eliezar Rizzo de Oliveira, As Forgas Armadas: Polft-
ica e Ideologia no Brasil, 1964-1969 (Rio de Janeiro: Forsense, 1976).
175. Even the most draconian rules on the treatment of suspected subversives, when
codified into fixed rules, proved insufficient to satisfy the most hard-line elements, who rou-
tinely 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 provi-
sions governing treatment of military prisoners and procedures for their prosecution).
serves, "the truly militant officers did not believe in the official
commitment to the principle of liberal democracy, but they . . . lacked
either the will or intellectual self-confidence to emerge on their own and
drop the pretense of civilian government" under a constitution and civilian
courts.
176
In the absence of any explicit rationale by the hard line, the govern-
ment lawyers had to continue revamping the old constitutional forms
in order to "legalize" the executive's growing powers. Although it
avoided repudiating the liberal idea, per se, the government used con-
stitutional amendments, institutional acts, and executive decrees to re-
duce ever further the roles of the legislatures and judiciary.1
77
Over the 21 years of military rule, these constitutional amendments
and executive decrees were employed for such purposes as purging several
thousand individuals from public office,
178
making key elective offices at
the state and local levels into appointive ones, and redistributing the system
of electoral representation in favor of the country's most conservative re-
gions. These legal devices were also used for redefining the role of the
courts, as by removing jurisdiction for habeas corpus petitions and for of-
fenses against "national security" from civilian to military courts.
179
Such
measures were used as well to increase the number of Justices on the
Supreme Court after the Court began to rule consistently against military
actions.
180
Still later they were used to reduce the number of Court members
to the original figure, after two Justices resigned in protest over the mili-
tary's forced retirement of three others, whose opinions had been particu-
larly critical of executive conduct.'
8
'
A crucial role in political repression was played by the security and
intelligence bureaucracies, headed by the National Information Service
(SNI), which gathered data about suspected dissidents and kidnapped them
for questioning under torture.
182
These intelligence agencies, which oper-
ated with considerable autonomy from the rest of the officer corps and the
military president, are thought to have been responsible for the murder and
177. Id.
178. Institutional Act No. 1 (1964). Such individuals were also denied the right to hold
public office for 10 years. Rosa, Justia 10-12 (cited in note 155). Several appellate judges
were removed from office in this fashion.
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.
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.
181. Institutional Act No. 5 (1968) (reducing the number again to 11).
182. Ana Lagoa, SNI: Como Nasceu, Como Funciona (Sao Paulo: Brasiliense, 1983).
"disappearance" of 125 Brazilian citizens during military rule.
183
These vic-
tims of military repression never reached the point of becoming "cases" that
passed before either civilian or military courts. Even those whose cases were
ultimately brought within the domain of the military tribunals were often
tortured in advance of trial by members of this intelligence service, under
whose custody they were often kept before trial.
184
In keeping with the mili-
tary's commitment to a thoroughgoing formalization of its members' powers,
the considerable authority of the SNI was reflected in statutory form.
185
Though its agents never sought public responsibility for their most repres-
sive activities, its existence and autonomous status did receive a degree of
formal recognition within positive law that its near-counterparts in Ger-
many and Argentina (i.e., the Gestapo-S.S. team and the military death
squads, respectively) never acquired.'86
One of the very few forms of deliberate institutional continuity from
the democratic period into that of military rule was the preservation of the
membership of the Supreme Court. The decision not to purge the Court in
the way that Congress, the civil service, the public universities, and the
military itself were being purged, was the achievement of the soft line
within the officer corps.
187
They believed that the Court could be persuaded
that the disruption of public order and the imminent threat of social revolu-
tion required a brief period of departure from settled interpretations of posi-
tive law. There were some grounds for the military's confidence in this
regard, for the members of the Court had expressed their support for the
coup, in concurrence with the prevailing view that a short period of military
rule was probably necessary to restore political stability to the country. The
soft line hoped, in fact, that the Court would provide some public sense of
institutional continuity, not only by its continuous membership but also by
its willingness to interpret preexisting law in a manner consistent with the
regime's own enactments. The hard line, by contrast, was more skeptical
about whether the Court could be trusted to apply the positive law that
183. Alfred Stepan, Rethinldng Military Politics: Brazil and the Southern Cone 27-28, 40
(Princeton, NJ.: Princeton University Press, 1988) ("Stepan, Rethinking").
184. See, e.g, the examples discussed in 4 Nunca Mais 27-33, 43 (cited in note 168).
185. Decree Law 4341, 13 June 1964.
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 other-
wise puzzling fact that over two-thirds of the murder-disappearances 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."
187. On hard-line opposition to this decision, see John W. F. Dulles, President Castello
Branco: Brazilian Reformer 31 (College Station: Texas A&M University Press, 1980) ("Dulles,
President Castello Branco").
these officers intended to promulgate, since the Justices were known to
have been followers and appointees of the same civilian politicians who
were then being purged from political office.
188
On this issue, the soft line
initially won the day..
Ruling officers hoped that the Justices would interpret "general
clauses" in existing law so as to allow the repressive measures, considered
necessary by the corps, to be implemented with minimal revision of code or
constitution. The most important clause in this respect, within a statute
from an earlier dictatorship, criminalized all acts threatening the "external
security" of the nation.
18 9
The soft-line officers, in particular, harbored the
hope that courts could be persuaded to read the military's "national secur-
ity" doctrine into this statutory wording.
19
According to that doctrine, the
threat posed by external forces was no longer distinguishable from that
posed by internal forces, insofar as the latter were directed (or at least in-
spired by and modeled after) the former.
19
' On this view, nationalist guer-
rilla movements were merely local expressions of the international
communist movement, directed regionally by Cuba and ultimately by the
Soviet Union.
2. How the Judiciary Responded
The Brazilian Supreme Court proved unwilling to accept this reading
of existing law. As Nadorff concludes, "the Tribunal was forcing the execu-
tive to do its own dirty work,"'
92
which the executive proved perfectly will-
ing to do. At the outset of military rule, the Justices often couched their
interpretations within strictly positivist terms.
93
Hence, the Court upheld
the habeas corpus petitions of civilian political figures, such as provincial
governors who had been deposed from office and imprisoned on the basis of
188. On this widespread belief among hard-line officers, see Osvaldo Trigueiro do Vale,
0 Supremo Tribunal Federal e a Instabilidade Polftico-Institudonal 10-13 (Rio de Janeiro:
Civilizago Brasileira, 1976).
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 Seguranpa Nacinal: uma experiencia antidemocrdtica (Porto Alegre:
S.A. Fabris, 1980). Prosecutions under an earlier version of this statute are examined in Rey-
naldo Pompeu de Campos, Repressido Judicial no Estado Novo (Rio de Janeiro: Achiam, 1982).
190. See the useful discussion in 4 Nunca Mais 5 (cited in note 168).
191. Escola Superior de Guerra, Manual Bdsica (1983); General Golbery do Couto e
Silva, Planejamiento Estratigico (Rio de Janeiro: Editora Americana, 1981); Jos6 Alfredo
Amaral Gurgel, Seguranpa e Desenvolvirnento (Rio de Janeiro: Civilizagao Brasileira, 1975);
Antonio de Arruda, ESG: Hist6ria de Sua Doutrina (Slo Paulo: Edig6es GRD, 1980).
192. Nadorff, 14 Lawyers of the Americas at 309 (cited in note 92).
193. On the predominant influence of positivism on legal education in Brazil, see
Medeiros, Ideologia Autoritdria 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 Constitucional 206-13 (Rio de Janeiro: Forense, 1980).
the threat their conduct allegedly posed to "external security." In these
cases the Court held that the politician's conduct, however irritating to the
military rulers, did not pose a threat to "external security"-within the ordi-
nary meaning of the applicable adjective, as intended by the legislature-
unless the defendant could be shown to be the agent of a foreign state.
194
This was virtually never the case.
195
For the same reason, the statute denied
to military tribunals any peacetime jurisdiction over civilians displaying no
direct relationship with a foreign state.
196
Such rulings were condemned by
hard-line officers as excessively "formalist" and "casuistical."197
The commitment of the military rulers to a "revolutionary" revision of
positive law, however, ensured that-unlike their Argentine counter-
parts-they had no compunction about amending the pertinent statute to
better advance their purposes. Hence, the term "external security" was re-
placed with "national security" in order to encompass a much wider range of
political conduct within the sphere of prohibited activity.
198
Yet even this
strategy did not suffice to neutralize the Supreme Court as an obstacle to
the implementation of the regime's most oppressive policies, for it remained
to the Court to interpret the meaning of a "threat to national security" and
whether the military had applied that prohibition in a manner consistent
with due process.
199
Its interpretation in this regard proved in several cases
to be considerably more restrictive than that favored by the officer corps.
At this point, however, the Court could no longer rely primarily on positiv-
ist interpretive methods.
In one case, for instance, a naturalized alien had been convicted by a
military tribunal of "crimes against national security" for owning and man-
aging a brothel.
2
0

He contended that since the crime of prostitution did not
constitute an offense against "national security" or threaten "social order,"
only the civilian courts could have exercised jurisdiction, rather than the
military tribunal that convicted him. The Court accepted this argument and
overturned the conviction. It rejected the solicitor general's response, based
in policy and principle, that prostitution threatens the country's social order
because this order depends on the institution of the Christian family, which
is weakened by prostitution. Also rejected by the Court was the prosecutor's
contention that the prostitution promoted by the defendant undermined
194. See, e.g., Mauro Barges, 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.); Josi Parsifal Barroso, H.C.
No. 41.609 (16 Dec. 1964).
195. See, e.g., Soares de Cavalho, 33 R.T.J. 381 (en banc, 1965).
196. Rayil Peanha, 216 R. For. 268 (S.T.F., 1966); Darival 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).
197. Rosa, Justiga 22 (cited in note 155).
198. Institutional Act No. 2 (1965).
199. A case reversing the defendant's conviction on this constitutional basis was
Obregon Conalves, 35 R.T.J. 227 (en banc, 1965).
200. Rodriques Cerqueira, H.C. No. 46.881, 52 R.TJ. 160 (S.T.F., 1969).
"national security" since he was an immigrant. Thus even the military's
willingness to revise positive law did not deprive the Court of important
opportunities to resist oppressive executive actions within the terms of the
regime's own enactments.
20
'
During the first three years of military rule, the Court repudiated in
case after case the key measures taken by military leaders as contrary to law.
Many of these early cases involved the separation of powers between the
federal and state governments, where pockets of political opposition to mili-
tary rule remained.
202
The most significant feature of these judicial rulings,
for present purposes, was the extent to which their rejection of executive
conduct drew increasingly on naturalist arguments. Rather than resolving a
case merely by its subsumption under a rule of positive law, the Court very
often extended its discussion beyond such sources to the underlying moral
principles it thought to be at stake. The long history of the Court, as well as
its first, tentative expressions of skepticism toward the military's more re-
pressive policies, showed that the Justices were perfectly capable of making
formalist arguments against executive misconduct when they wished. But
increasingly they came to prefer a very different idiom of dissent.
For instance, the conviction under the terms of the National Security
Law of a university professor who had been fired and charged with distribut-
ing subversive literature was overturned not only on the positive law
grounds that the content of his speech failed to constitute an "incitement to
public disobedience" within the meaning of the statute.
20 3
The conviction
was also overturned on the grounds, discussed at much greater length by the
Court, that applying the statute to the facts before it would have abrogated
the defendant's constitutional right to free speech. The Court then pro-
ceeded to quote at length from Benjamin Constant, Justice William 0.
Douglas, and several First Amendment cases of the U.S. Supreme Court,
affirming the free speech principle in general terms as a requisite of demo-
cratic government.
24
This naturalist type of argument was entirely "unnec-
essary," given that a majority of the Court had found, on more strictly
"positivist" grounds, that the defendant's conduct fell outside the scope of
conduct prohibited by the statute.
201. The Court initially resisted even the effort to strip it of jurisdiction over constitu-
tional 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.
202. Miguel Arraes (cited in note 194); also Francisco Juliao, H.C. No. 42.560 (S.T.F., 29
Sept. 1965).
203. Sifgio Cidade de Rezende, H.C. No. 40.910 (S.T.F., 1964). See also Jodo Batista
Zacarioti, 32 R.T.J. 23, 26 (en banc 1965), opinion of Justice Gongalves de Oliveira (conclud-
ing that "we are not about to wimess, with arms folded, the gradual destruction of human
rights").
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 Civiliza-
go Brasileira, 1977) ("Costa, Os Grandes Julgamentos").
In another case, the Court held unconstitutional a provision of the
National Security Law that the military had used to prohibit the profes-
sional activity of the defendants (lawyers and business people) whose polit-
ical sympathies it distrusted.20
5
The Justices recognized a right to earn a
livelihood by practicing one's occupation as an implicit constitutional guar-
antee. Any such appeal to implied rights embedded in the moral fabric of
the law evokes skepticism from the most astringent positivists and bespeaks
a naturalist propensity on the judge's part, at least to some degree. The
executive's order barring the defendants from employment was found "of-
fensive to the inherent rights to life that are fundamental to man. ... The
rigors of the measures provided by the statute... cry out against the most
basic human principles." As one commentator observes, "The decision is
filled with the language of natural justice.
' ' 26
In still another case, the
Court found unconstitutional the intervention of the central government
into the affairs of a state still controlled by civilian leaders who had opposed
the coup. In legal terms, this was an easy case that could quickly have been
resolved by subsuming the facts under the canonical wording of the applica-
ble constitutional provision and supportive precedent. But the Justices pro-
ceeded to expatiate at some length about how their rejection of the
military's case was ultimately based on fundamental principles of federalism
and the guarantee of a "republican form of government," principles that
were imperiled by the military's intervention.
2 7
For present purposes, these
examples must suffice.
Conspicuously absent from these rulings of the Brazilian Court is the
confidence displayed by its Argentine counterpart that its central concerns
for the nation and its conception of the law's purposes and methods of rea-
soning were shared by the executive. The decisions of the Brazilian
Supreme Court do not evince this same sense of shared membership in a
common legal culture, as the Court's frequent citation to foreign sources of
law makes particularly clear.
208
To the more nationalist, hard-line officers,
resort to such alien sources was irrelevant and highly inflammatory. The
Justices were decidedly more wary about attempting to engage in a dialogue
with dictators, even ones whose necessity they had initially acknowledged.
The Court sought instead a dialogue with a broader segment of opinion,
particularly in Congress, which was becoming equally skeptical of the new
regime.
209
According to their later reflections on the period, in invoking
205. Viera Netto, H.C. No. 45.232, 44 R.T.J. 322 (S.T.F., 1968).
206. Feinrider, 5 Suffolk Transnat'l LJ. at 182 (cited in note 92).
207. Governador do Estado da Guanabara (1965) in Costa, Os Grandes Julgamentos 71, 79-
83.
208. One scholar correctly describes the language of these decisions as "increasingly vi-
tuperative." Nadorff, 14 Lawyer of the Americas at 321 (cited in note 92).
209. On the growing opposition within Congress, despite the massive purging of depu-
ties, see Maria Helena Moreira Alves, State and Opposition in Military Brazil (Austin: Univer-
sity of Texas Press, 1985).
general principles the Justices intended to facilitate this more wide-ranging
discussion by underlining the urgent importance of the issues at stake.
210
This objective was one which, the Court believed, would not have been so
well served by a positivist path to the same result in these cases. While the
general principles of liberalism invoked by the Court were acknowledged to
have their roots in natural right, and to have received clearest articulation
in the rulings of foreign courts, most of the Justices were nevertheless careful
to show how these principles had long been "domesticated," having been
adopted by the nation's constitutional founders and embraced by other lead-
ing liberals throughout
its history.
211
The Justices' frequent resistance to key military policies, even when
codified into positive law, revealed to the officers that the Court could not
be relied on as a trustworthy ally of military rule. The officers responded in
two very different ways. The "legalists," displaying their unflagging legal
formalism, repeatedly sought to redraft their decrees and constitutional pro-
visions in broader terms, so that the Justices would surely reach the desired
result the next time round. The legalists did not, however, make later re-
pressive enactments any more specific, instead preferring broadly worded
language-barring "generic anti-social activity."
212
Insofar as positivism
counsels that the rule of law virtues can be obtained only by clear and pre-
cise rules, such positivization of repression is not an expression of legal posi-
tivism. The hard line responded to the Court's recalcitrance by simply
taking its repressive measures further underground, beyond reach of civilian
courts.
213
As the power balance began to shift toward hard-line elements,
particularly in 1968, the Supreme Court itself became the "target of the
government offensive,
21 4
as displayed by the "packing" of its numbers and
the later purging of its most critical voices.
A compromise strategy, accepted by both factions of the corps, was to
reallocate jurisdiction over all politically significant offenses to the military
tribunals.
2 15
The military tribunals provided the institutional apparatus by
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, 0 Supremo Tribunal Federal: Esse
Outro Desconheido (Rio de Janeiro: Forense, 1968).
211. See, e.g., the references to Rui Barbosa in the Mauro Borges case, in Costa, Os
Grandes Julgamentos 37, 48.
212. Institutional Act No. 5 (1968). Some Justices found such formulations unconstitu-
tionally vague. The military rulers obeyed the Court's judgments against it in all litigated
cases but repeatedly revised the pertinent provisions in an effort to prevent future embarrass-
ments at judicial hands.
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 LJ. at 186-87.
214. Skidmore, Politics of Military Rule 82 (cited in note 92).
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 Sgo Paulo Archdiocese, became the best-selling nonfiction volume ever published in Bra-
which the vast majority of the regime's targets were subjected to its disci-
pline. Over 7,000 thousand Brazilians were prosecuted in such tribunals. But
considering that these tribunals were to play so central a role in political
repression, it is particularly intriguing to discover that nearly 70% of those
prosecuted before them were acquitted, and this figure fell only as low as
45% during the presidency of the most radically hard-line general.
216
The
full explanation for the persistently high rate of acquittal has not been es-
tablished. But it is well known that the most "liberal" or soft-line officers
were often assigned to serve on such tribunals in order to remove them from
active commands, where they would have maintained direct control over
armed
troops.
217
The "resistance" (if it can be so called) of certain members of the mili-
tary tribunals to the more repressive impulses of their harder-line comrades
in arms cannot be attributed either to a naturalist belief in the evil of the
regime, whose repressive policies they were prepared to enforce through
their service on these tribunals. Nor can their acquittals be attributed to any
scrupulously positivist commitment to following the enacted rules; the rules
of the National Security Law had been so thoroughly revised as to permit
the criminal conviction of virtually anyone who was thought to pose a
threat to the regime's objectives.
218
The reason for recalcitrance by certain
tribunals appears to have been that the soft-line officers who staffed them
in disproportionate numbers simply believed a lesser quantum of repression
was necessary to set the country's institutions back on track than that
sought by their harder-line colleagues. The reality of the threat confronted
by Brazilian society was simply perceived as less omnipresent or pervasive,
and the policy best suited for responding to it correspondingly less repres-
sive. This effort to ensure that the tribunals applied a "policy" aimed at
reflecting and addressing a concrete "social reality," rather than formal rules
or moral principles, revealed the tacit commitment of tribunal members to a
form of legal realism. This is the jurisprudential position that must be
credited with providing the rationale for their partial resistance to the most
egregious forms of political repression during military rule.
Though legal realism had a liberty-enhancing effect on the military
tribunals, its impact elsewhere within Brazilian legal culture was not so
clearly salubrious. Under the auspices of the Ford Foundation, the "Law and
Development" movement sought to "transplant" policy-oriented legal
zil. 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).
216. 4 Nunca Mais at 25 (cited in note 168).
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.
218. Moreover, the tribunals routinely ignored many unequivocal rules favoring the de-
fendants before them. 4 Nunca Mais (pages cited in note 175).
thinking into a Latin American legal culture that still largely cleaved to
debates between Kelsenian formalists and Catholic naturalists. American
academicians were surprised at the reception accorded to the instrumental
conception of law. While Latin America's most conscientious democrats
and constitutionalists were deeply skeptical, those who supported the new
authoritarian regimes in the region were keenly attracted to legal realism.
The concept of law and the lawyer as the tool of currently prevailing policy
strengthened the hand of authoritarian rulers by calling into question the
legal validity of popular claims based on the settled entitlements of positive
rules or on moral principles thought to have been implicit within the law.
As Gardner has written of this episode, "in the context of authoritarian
[Latin America], the legal engineer emerged as a professional model lacking
any coherent conceptual framework of the 'rule of law,' ethics, values, or
legitimacy, and offering no coherent professional standard other than a will-
ingness to design and execute state.. . policy.
21 9
Until the North Americans arrived, the relations between the legal
profession and new authoritarian rulers in Brazil, Chile, and elsewhere had
been somewhat strained. While military rulers sought a quick responsive-
ness from the law to the state's shifting policies for economic development
and the restoration of public order, the legal profession either insisted (in a
positivist vein) that new policy measures comply with the requirements of
enacted law or (in a naturalist vein) that such measures conform to con-
servative Catholic moral teaching. Both of these professional concerns were
bound to appear curiously obscurantist, if not willfully obstructionist, to mil-
itary rulers anxious both to restore a public order threatened by revolution-
ary upheaval and to industrialize their societies by whatever means seemed
most likely to produce rapid success. The legal realism from North America
facilitated a rapprochement between the important segments of the legal
profession and authoritarian rulers by bridging the conceptual gap in the
way that each thought about the law and, by doing so, on the instrumental-
ist terms favored by the state's policymakers. Still, the impact of realism on
military tribunals suggests the need for a more nuanced assessment of its
Latin American legacy.
The organized bar within Brazil also played a particularly important
role in resisting the most oppressive features of military rule, such as the
elimination of the right to petition for habeas corpus. The three dozen civil-
ian attorneys who had been willing to represent defendants before the mili-
tary tribunals
220
eventually prodded the legal profession, beginning in the
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).
220. The most distinguished members of this group included Anina de Cavalho, Mo-
desto da Silveira, Hdlio 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).
early 1970s, into adopting a highly conspicuous role of public opposition to
military rule.
221
This political resistance by the bar, like that of the Supreme
Court, was cast almost entirely in the language of natural law.
222
Hence the
public pronouncements of the bar association did not deny that there ex-
isted within Brazil a form of "legal order," even though for certain positivists
this concession would have been sufficient in their minds to establish an
obligation to obey its commands. Instead, the profession's pronouncements
went on to declare this to be an "illegitimate juridical order," on the
grounds that its constitution had not been the product of a popularly
elected Constituent Assembly. The call for a constituent assembly that
would genuinely reflect democratic principles eventually became the pri-
mary objective of the organized bar.
22 3
There could scarcely have been a
clearer repudiation, on the basis of moral principles grounded in natural
right, of what was acknowledged to be the positive law of the land.
But the moral principles invoked by the organized bar were not those
of a pie-in-the-sky naturalism cast in theological terms. Rather, bar leaders
sought to characterize the principles at risk as goods internal to the profes-
sion of law as a social practice, preconditions for competent representation
of clients. On this view, which was reflected consistently in the bar's public
rhetoric, the military rulers had deprived lawyers of the circumstances nec-
essary to honor their specifically professional duties.
224
In severely restrict-
ing the procedural rights of criminal defendants, for instance, the regime
was viewed as compromising law's "internal morality," in something resem-
bling Fuller's sense. This too, like the domesticated naturalism of the
Supreme Court, was a means of softening the sting of criticism, a way to
couch the bar's resistance to military repression as something short of a re-
pudiation of military rule as such.
3. Conclusions on the Brazilian Experience
Of the two national experiences discussed here, the Brazilian is the one
that more closely approximates the testing situation contemplated by both
Hart and Fuller, as well as by their successors in the debate: a situation in
which authoritarian rulers remake the positive law in their image whenever
221. Raymundo Faoro, "Papel de la Orden de Advogados en el Proceso de Apertura
Democrftica," in H. Fruhling, ed., Represi6n Polfica y Defensa de los Derechos Humanos 39
(Santiago: CESEA, 1986). See also Alberto Venancio Filho, Noticia Histrica da Ordem dos
Advogados do Brasil (Rio de Janeiro: Folha Carioca Editora, 1979) ("Filho, Notcia Histdrica").
222. See the speeches delivered at the bar's conventions. Conselho Federal da Ordem
dos Advogados do Brasil, Anais da V Conferexida. See also Mark Osiel, "The Dilemma of the
Latin American Liberal: The Case of Raymundo Faoro," 23 Luso-Brazilian Rev. 37 (1986).
223. Raymundo Faoro, Assemblia Conscituente: a legitimidade recuperada (Sao Paulo:
Brasiliense, 1981).
224. See, e.g., the public statements of various bar leaders in Filho, Noticia Hist6rca 162,
this suits their purposes, thereby ensuring that the judicial resistance to
their regime is most likely to take the jurisprudential form of natural law.
The position of Fuller, Dvorkin, and other advocates of natural law in its
various incarnations appears to have been vindicated by the fact that the
uncooperativeness of the bench and bar-their refusal to be enlisted into
the cause of political oppression even after the military's objectives had
been infused into positive law-drew its inspiration in great part from trans-
positivist conceptions of natural law.
But while one might be tempted to accept this view, if only as a quick,
thumbnail characterization of the Brazilian experience, a closer inspection
suggests its inadequacy for four reasons. First, a careful examination of the
chronology of events reveals that the recourse of the Supreme Court to
natural law principles occurred during the first two years of the military
regime, when positive law had not yet been profoundly changed. In these
judicial opinions, the Justices were not compelled to search beyond the
readily available sources of positive law in order to reach their result, and
the opinions themselves reveal the partial reliance of such traditional legal
sources and authorities. The appeal to general principles did not reflect a
rejection of positive law on moral grounds-the situation imagined by
Fuller and his followers-but rather an effort of the Court to ensure that its
voice was heard not only by the executive, whose policies were being re-
jected, but also by a larger public, the only audience that the Court now
trusted to ensure that unjust executive policies were brought to an end.
The Brazilian experience thus supports the legal realists at least as
much as, if not more than, the naturalists. The Justices realized that their
resort to a naturalist idiom risked angering the military to a much greater
extent than the more prudent critique available to the Court through a
jurisprudence of positivism or realism. But the Justices apparently felt that
the game could be won only by raising the stakes, by mobilizing on their
behalf a group of supporters external to the Court. Reactions from Congress
and the press to the Court's rebuff of military arbitrariness were largely
favorable, thereby informing the military that public opinion sided with the
Court.
225
These events do not confirm the predictions of Hart and Mac-
Cormick any more than they do those of the natural law advocates. In
adopting a jurisprudence of general principles, the judges concluded that the
most effective way of sensitizing citizens to the moral issues that the country
faced was not to stress the autonomy of citizen conscience from questions of
legal validity but rather to emphasize the ineradicable presence of funda-
mental moral issues within the legal interpretations the Court was called on
to make.
A second problem with viewing the Brazilian experience as confirma-
tion of the Fuller position is that it proved possible for the judiciary to resist
225. On press reaction, see Dulles, President Castelo Branco 182-85 (cited in note 187).
some of the regime's most important and most oppressive actions within a
positivist framework of legal analysis, not only before but also after the
country's positive law had been reformed with the intention of allowing
such actions. Third, the reluctance of the civilian courts actively to collabo-
rate in political oppression did not guarantee the effectiveness of their
moral resistance, since it could not prevent their effective circumvention by
military tribunals and clandestine methods of military terror. The unwilling-
ness of the civilian courts to dirty their own hands in this regard did not
enable them to prevent others from doing so, and from doing so (in the case
of the tribunals) in the name of "the law." Still less did the relatively refined
moral sensitivities of the Supreme Court deter its members from continuing
to serve within such a regime, long after it had become apparent to all that
their opportunities for resistance against it had been destroyed by the near-
total circumvention of their jurisdiction through changes in positive law.
Fourth, the judicial conduct which was most effective in saving lives and
chastening the extremes of military repression was not the resistance of the
civilian courts, based in natural law, but that of the military tribunals, based
in legal realism.
III. COMPARING BRAZIL AND ARGENTINA:
CONCLUSIONS FOR LEGAL THEORY
In sum, the question of which legal theory leads to most resistance and
which to least is inseparable from the question of how authoritarian rulers
seek to employ the law-from whether they seek to alter its content rather
than circumvent its institutions altogether. To answer that question in turn
requires assessment of the extent to which "publicity"-entailed by changes
in positive law-significantly constrains effective implementation of severe
repression. Because it does, positive law is not thoroughly transformed in
light of the rulers' ideology, and positivist methods thus provide conscien-
tious judges with considerable resources for resistance, if they wish to use
them.
226
Where judges have been largely sympathetic to the authoritarian re-
gime, as in Argentina, they have sought to express their criticism of its most
oppressive policies in the same jurisprudential form as that adopted by the
regime's rulers. Given this desire to couch judicial criticism in a friendly
form, positivism offers the most congenial idiom for resistance where au-
226. The appeal to authoritarian rulers of "secret laws" is precisely that such laws claim
to offer the benefits of posirivization (i.e., precision regarding the rulers' intent and the scope
of their directives to subordinates) without risking the costs of publicity among a wider audi-
ence. 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 Ndstor Sagais, Las
Leyes Secretas (Buenos Aires: Editorial Alfa, 1983).
thoritarian rulers seek legitimacy for themselves and their policies through
the appearance of continuity with the preceding constitutional regime, an
appearance they seek to maintain by affirming the" continuing validity of its
positive law.
227
Similarly, legal realism has offered the most congenial judi-
cial idiom for friendly critique where authoritarian rulers sought legitimacy
on the basis of a pressing need for policies calculated to resolve urgent
problems presented by a changing sociopolitical reality. In these circum-
stances, resistance has taken the jurisprudential form of arguments about the
true nature or extent of the problems which are admitted to confront the
nation and about how the government's own policies for redressing them
ought to be applied to the facts of particular cases.
Where judges, as in Brazil, are largely unsympathetic to the authorita-
rian regime, by contrast, natural law provides the most congenial form for
resistance to its directives. It does not do so for the reasons or under the
circumstances stressed by Fuller and Cover, however. The chief reason that
natural law argument has been employed is not that it has most effectively
sensitized its judicial adherents to the moral repercussions of oppressive law
but that it has offered them the most effective idiom for addressing a larger
public beyond the ruling circles of the regime and for suggesting to this
public the scope and severity of official misconduct.
Thus, unlike with positivism and realism, the attractions of natural law
to the judicial critic do not vary in direct relation to the form of jurispru-
dence preferred by the regime. The jurisprudence of authoritarian rulers is
less important to the judicial critic because his criticism is no longer ad-
dressed chiefly or exclusively to such rulers. Natural law arguments are best
suited whenever the judiciary wishes to communicate a sense of the regime's
fundamental illegitimacy, irrespective of the jurisprudential form in which
its rulers have sought to justify their conduct. It is not especially important
to the judicial critic that he be able to cast his resistance in the preferred
jurisprudential terms of the regime when he is not troubled by the prospect
of being labeled a "hostile" critic, rather than a "friendly" one.
2 28
This sug-
gests that natural law arguments are attractive to judicial critics in a wider
range of circumstances than that suggested by Fuller and Cover. These au-
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 mis-
take, 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'6tat; it reacquires validity only insofar as the
new de facto rulers specifically reenact it. See Brookfield, 19 Toronto LJ. (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."
228. Neither case perfectly embodies the conclusions so stated because both these re-
gimes were complex political entities that sought their legitimacy, and that of specific direc-
tives, from no single rhetorical formula.
thors believed that the quintessential conditions for natural law jurispru-
dence arose only when political rulers had ensured that they were
unconstrained either by past enactments (to which a positivist critic could
appeal) or by the objective realities of the present situation (about which a
legal realist might argue).
As the Brazilian case suggests, judges are drawn to natural law argu-
ment whenever the best hope for reversal of oppressive policy appears to lie
not in common dialogue with those responsible for it but in an explicit
appeal to the nation to act on its historic principles and thereby bring pub-
lic pressure to bear on the responsible parties.
229
Cause and consequence are
not easily disentangled in this regard, and the relation between them is
quite complex. Judicial resort to natural law rhetoric is not only a common
consequence of political crisis, as some have noted.
23
0 It is also an effective
tactical means to that end. In other words, it can help stir up political tur-
moil rather than merely reflect it, when judges seek to publicize the ques-
tionable character of executive policies that may partly have escaped public
attention.
The more willing authoritarian rulers are to enact their most repressive
policies into positive law, the less legal positivism can provide a professional
rationale for judicial resistance while remaining "in role." But the Argentine
experience, in particular, suggests that military rulers are often reluctant to
positivize repression in this way. Public decrees worded in vague (but omi-
nous) language best serve the rulers' purposes; the very lack of precision
regarding the scope of authorial intention is what most effectively "chills"
undesired political activity. This is precisely the aim of rulers wishing to
demobilize a population that has been highly organized for political action.
Such mass mobilization had long characterized Argentine politics and, in
Brazil, was growing rapidly during the period preceding the 1964 coup.2
1
For rulers seeking to terrorize a well-organized populace into political docil-
229. A similar phenomenon occurred in the dissenting opinions of U.S. Justices Bren-
nan 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 princi-
ple 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.
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").
231. Joseph Page, The Revolution That Never Was: Northeast Brazil, 1955-1964 (New
York: Grossman, 1972).
ity, verbal vagueness has considerably more "chilling effect" than restric-
tions that are more precisely delimited.
For this reason, literalist judging creates more serious problems for au-
thoritarian rulers than might initially be supposed. Though the rulers are
often quite willing to speak in glittering generalities about the policies, they
are usually much more reticent about describing and defending specific con-
cretizations of these policies, for example, their implications for particular
categories of people engaged in particular sorts of activities. At this level of
specificity, the regime's objectives, otherwise seemingly laudable, quickly
begin to appear more questionable, even to its initial sympathizers. Because
authoritarian rulers insist on maintaining secrecy over many such "details,"
they are reluctant to concretize their policies as new rules of positive law.
Such rulers therefore require judges who are willing to reinterpret broadly
worded "standards" (within existing law) in light of the rulers' new ideology.
Judges are to infuse the principles and policies of the new regime into the
law by such general clauses (e.g., "national security"), so that the rulers can
minimize the need for conspicuous legislative and constitutional modifica-
tions, maximizing the desired appearance of continuity and order.
Judicial literalism, in short, compels authoritarian rulers to be more
explicit than they (particularly military hard-liners) are usually prepared to
be on the scope of their repressive intentions. In this fact may be found its
liberty-enhancing effect. Judges may not necessarily persuade a wicked ruler
to be any less repressive, but they can force him to some extent to be more
explicit about what he is doing.23
2
In a world where the ruler's conduct is
sure to be closely monitored for human rights abuses, and in which such
abuses may compromise foreign relations vital to his economic objectives,
the constraining effect of such judicial recalcitrance, however mild-man-
nered, can be considerable.
If judicial capitulation results as much from weakness of the will as
from moral ignorance, then it is also significant that considerably less cour-
age is required for a judge to apply precise statutory wording, directly and
inescapably applicable to the facts, than to invoke broad principles of natu-
ral justice, allegedly (and not uncontroversially) infused within the legal
system as a whole.
233
Not merely is the judge more effectively constrained
to obstruct executive misconduct but he is also seen by executive rulers
themselves to be so constrained. Hence he is less likely to be punished for
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).
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, "Re-
cent Emergency Legislation in West Germany," 82 Hawv. L. Rev. 1704 (1978).
doing what the law, by all reasonable appearances, seems to require. He can
be accused of professional myopia but not of ideological disloyalty when
refusing to rule for the junta. Legal formalism, in short, has surely saved
more lives and preserved more liberties than naturalism.
234
Insofar as it
stems from a particular reading of positivism, however "inaccurate," positiv-
ism itself may be credited with these salubrious effects. The Argentine case
has offered considerable evidence for this hypothesis, supporting Hart over
Fuller.
235
Both theorists viewed the adoption of particular jurisprudential ideas as
having a causal effect on the judicial choice between resistance and resigna-
tion to oppressive rule. But the realist view, which finds considerable sup-
port in the Argentine and Brazilian experiences described here, suggests
that it may be more accurate to view the choice of jurisprudential forms as a
consequence of the political constraints and opportunities faced by a judge
who has already decided on his course, be it capitulation or resistance.
Rather than asking how jurisprudential ideas influence the judicial propen-
sity to resist oppressive regimes, legal realists prefer to ask how differences
between such regimes influence the jurisprudential form in which resistance
to them is cast.
The proper question becomes: When a judge contemplates the possi-
bility of resisting an official directive he regards as radically immoral, which
jurisprudential position enables him to express such resistance as to maxi-
mize its intended effect and minimize its risks for him? This formulation of
the question enables us to acknowledge more explicitly than did Hart,
Fuller, or their epigones, that jurisprudential ideas are only one among sev-
eral possible sources of the inclination to resist, without denying the influ-
ence of such jurisprudential ideas over the decision to act on that
inclination. Jurisprudential ideas offer only one among many "motives" for
judicial resistance to political oppression,
236
but any such resistance, regard-
234. This conclusion may need to be qualified if it can be shown that judicial resist-
ance-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'lJ. Soc. L. at 352, 365-68 (cited in note 77).
235. While these generalizations necessarily operate at some remove from the complex-
ity 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 en-
gaged 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 jurispru-
dential 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.
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 or-
less of its underlying motive, must be publicly defended in terms of explicit
rationales or "reasons," which necessarily take particular jurisprudential
forms.
The realist account nevertheless misses a crucial empirical complexity,
evidenced by the Latin American cases, in its temptation to dismiss the
causal impact of legal theory altogether. The effect of Hart's and Fuller's
approaches was not to exaggerate the significance of jurisprudential ideas
but to misplace it. The impact of such ideas is not so much in sensitizing
judges to moral concerns but in providing them with public rationales
through which to articulate these concerns, rationales that entail differing
consequences in particular circumstances.2
37
Jurisprudential forms differ
greatly in their capacity to enable judges to act on their moral sensitivities
in ways that prove helpful to the victims of political repression, without also
inviting repression of the judges themselves. Hence what may at first appear
only a consequence of adopting a given jurisprudential position can also be
a cause of its invocation. Judges have good reason to anticipate disparate
responses from the executive and the public, depending on the jurispruden-
tial form in which resistance is couched. Judicial anticipations in this regard
affect the likelihood that resistance will be undertaken at all, not merely its
form.
In this respect, the "realist" view that opportunities for resistance are
always available, given sufficient judicial imagination and dexterity with
the alternative modes of legal argument, misses an important truth. On the
preceding account, ideas (when treated as rhetorical forms) exert a genuine
impact on judicial conduct because of the consequences thought likely to
follow from their deployment. But ideas affect judicial resistance primarily
by the "reasons" they provide for its public defense, rather than by the "mo-
tives" they induce.2
38
In other words, if one form of theory is more likely
ganizations (i.e., churches and political parties). Others emphasize the resisters' fortuitous en-
counters with individual victims of repressive policy (e.g., with a Jewish neighbor, harbored
from the Holocaust). 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.
237. Posner articulates this realist-pragmatic view in stating that "legal method or judi-
cial 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 include "hair-splitting casuistry, strict construction, and disavowal of personal
responsibility." Posner, 204 New Republic at 41 (cited in note 51).
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, prin-
ciple, 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 func-
tions 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 pro-
than others to be effective in articulating resistance (without inviting re-
pression), then such a theory will cause more resistance among judges who
hold it, or who merely regard its preferred idiom as within their repertoire of
professionally acceptable moves. Thus, judges comfortable with this theory
and willing to resist (short of martyrdom) will probably be impelled to use it
for such good ends will than judges who reject the theory and the argumen-
tative moves it favors.
The skeptic will argue that my reformulation of the debate over judi-
cial response to wicked law doesn't lend itself to any conclusions at all, even
rough or tentative ones, precisely because of the significance it ascribes to
shifting political circumstances. All I have shown, he will insist, is that if we
cast our gaze widely enough in time and space, we discover that any juris-
prudence can serve and has served any political aims. Thus, whether a given
theory fosters resistance or repression all depends on fine-grained contin-
gencies that resist reduction to any generalization or "covering law." And it
is true that in Mussolini's Italy-to take just one exemplary regime-legal
positivism first served for some years to limit judicial responsiveness to the
new fascist government but only until that government had revised positive
law, as it did in its later years, to reflect fascist ideology in greater degree.
239
The answer to the simple question-Was legal positivism was "progressive"
in interwar Italy?-thus seems to depend entirely on when one takes the
snapshot. Still another reason for skepticism about chances for generaliza-
tion in this area is the possibility that each of the grand jurisprudential
traditions I have summoned up is so plastic, so rich, that a skilled rhetori-
cian can always find what he needs, for any purposes, within it.
240
Perhaps. But the cases examined here do suggest some robust mid-level
generalizations: actual dictators, as opposed to the fairytale dictators of the
Hart/Fuller debate, are usually at pains not to rewrite their codes and consti-
tutions in ways that publicize their dastardly intentions. Although any gen-
eralization beyond the Argentine and Brazilian cases would be speculative,
existing literature on the legal systems of authoritarian regimes suggests that
this conclusion almost certainly applies across a wide range of cases and
contexts. It is a conclusion with clear implications, moreover, for strategies
of judicial resistance.
I have shown how judges shape their professional discourse in light of
the fact that they occupy more than one interpretive community: in Argen-
tina they sought to speak with the military; in Brazil, with the public and
vided 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 con-
versations with such judges than those in which I have yet engaged.
239. Norberto Bobbio, El Problema del Positivismo Jut/dco, trans. E. G. Valdes, 8-9 (Bue-
nos Aires: Editorial Universitaria de B.A., 1965).
240. I owe much of the formulation in this paragraph to Donald Herzog.
civilian political figures. But there is a third interpretive community: the
legal profession itself. Studies of bench and bar in other societies have found
that this professional community has sometimes furthered lawyerly defiance
of wicked law.241 Even military rulers possess some awareness that their judi-
cial appointees cannot hope to legitimate the regime's repressive policies
unless courts can pay obeisance to intraprofessional norms, 'that is, to norms
defining what counts as an acceptable legal argument. If a judicial opinion
appears to disrespect the distinction between political expediency and legal
norms, that opinion cannot effectively lend much legal-rational legitimacy
to the regime whose measures it endorses. If the judge's argumentative ma-
neuvers on behalf of authoritarian rulers appear "unprofessional" to other
members of bench and bar, his persuasive leverage on behalf of executive
superiors is greatly reduced, and the legitimating effect of his judgment
among relevant elites will be virtually nil.
Judges in Brazil and Argentina identify themselves, to some extent, as
members of a larger legal elite, a learned legal society, whose members re-
spond critically and conscientiously to judicial opinions, responses that de-
termines judicial reputations.
242
In this fashion, the "legal field"
243
established by the community of competent interpreters may provide some
support for judges wishing to take risks in dialogue with dictators. To this
end, the pressures of the legal field presumably operate not by instilling an
impulse to "speak truth to power" but by evoking judicial concern about
compromising one's reputation for professional competence and integrity.
Where judges can expect to move between public and private sectors
throughout their lives, they need to trade on their reputation among private
practitioners, a reputation developed while on the bench.
This hypothesis must remain the subject of future inquiry by others. I
have not developed it here because in Argentina and Brazil judges seldom
move intentionally between private and public sectors, for the judiciary is
part of the regular civil service.
244
Moreover, the "legal realist" position
adopted here has led me to view the constraints imposed on skillful judges
by the "legal field"-whether they seek to resist or collaborate, by one legal
theory or another-are not usually very onerous. Nevertheless, it warrants
241. See, e.g., Ellmann, Thine of Trouble 238-47 (cited in note 44) (arguing that South
African anti-apartheid lawyers won more victories in court than American antebellum aboli-
tionists engaged in in defending fugitive slaves because the former, unlike the latter, sought to
honor intraprofessional norms of discourse).
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.
243. Pierre Bourdieu, "The Force of Law: Toward a Sociology of the Legal Field," 38
Hastings L.J. 814 (1987).
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 profes-
sional norms.
mention that in Brazil, at least, intraprofessional norms do appear to have
compelled judges in military tribunals to make a formal record of allegations
(by detainees) of torture against police and security forces. The resulting
record later permitted public documentation of the regime's repressive prac-
tices. A Brazilian advocate for the victims of military repression observes in
this regard, "If the judges had refused to enter the denunciations, the de-
fense attorneys would probably [have] just got up and left. The judges didn't
want things to descend to the level of farce. There was a sense of minimum
obligation."
245
It appears that this sense of obligation was partly rooted in
concern for judicial reputation in the eyes of defense counsel and, by impli-
cation, other members of the bar.
IV. THE LIMITS OF JURISPRUDENCE: HART AND
FULLER REDUX
If the Argentine experience proves representative, the type of moral
blindness from which both sides in the jurisprudential debate sought to free
the judiciary was not that to which the judiciary in such societies has most
often and easily succumbed. The members of the Argentine Supreme Court
may fairly be accused of moral misperception, inattention, or unconscien-
tiousness. But theirs was a variety of moral blindness altogether different
from that identified by positivists or naturalists. The resistance of Argentine
judges to key features of the Dirty War suggests that they were not insensi-
tive to the moral dimensions of the cases before them. All three jurispru-
dential forms-positivism, naturalism, and realism-were able to foster or
facilitate resistance in the Argentine and Brazilian episodes. But such doc-
trines may be utterly helpless in deterring members of the judiciary from
submitting, without violating their professional duties, to the type of com-
plicity that authoritarian regimes most commonly make available to them:
the complicity
of impotent resistance.
246
In such circumstances, the public official should adopt, as a criterion of
moral self-scrutiny, the test of whether it is reasonably foreseeable that his
ineffective resistance has reached the point of furthering the policies he
245. Weschler, Miracle 48 (cited in note 2).
246. This species of complicity has long been noted. See, e.g., Benjamin Constant,
Principes de Politique, applicable a tous les gouvernements reprsentatifs et particu!i-rement a la
constitution actuele 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 un-
limited 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."
opposes.
247
But this test requires the official to evaluate his conduct in light
of a standard that does not derive from his distinctively professional duties
or, hence, from any particular jurisprudential conception of them. Rather,
the test derives from his status as an autonomous moral agent or as a mem-
ber of a national community. Thus the public official, in applying this stan-
dard to himself, may be obligated to "breach the requirements of his role,"
248
however his jurisprudential approach may define it.
The key question that legal theorists ought therefore to put to them-
selves is: Is there any theory of adjudication, regardless of its jurisprudential
foundations, that will, when adopted by judges, be more likely than its alter-
natives to reduce the self-deception entailed in indulging the belief that one
is significantly limiting the state's most repressive policies instead of merely
driving their implementation underground and lending a patina of public
respectability to their perpetrators? This reformulation of the question
clearly owes a great deal to the insights of legal realism from which, I have
shown, the jurisprudential debate over judicial response to wicked law could
stand a great deal to gain.
A. Judicial Resistance as Social Criticism: Detachment and
Connection
Does the judiciary-regardless of how much or what type of resistance
it offers-stand helpless, then, before the authoritarian state? Answering
that question requires examining the causal process by which judicial resist-
ance to oppressive regimes is thought to contribute to their public legiti-
macy. That contribution is presumably twofold. First, judicial resistance
conveys the appearance that a society retains an important degree of open-
ness for criticism of executive policies and conduct and that the executive is
responsive to such criticism. Second, judicial activity-whether compliant
or not-conveys a sense of historical continuity from the prior constitu-
tional regime into the new period of authoritarian rule, suggesting to the
public that the rule of law endures and that certain, respected governmental
institutions continue to operate as they have done.
The first (and weaker) version of this critique applies to the Argentine
Supreme Court. It charges that such resistance is ineffective because it oper-
ated entirely within the jurisprudential terms imposed by authoritarian rul-
ers. If resistance to oppressive law was to have any significant effect, it was
necessary for the Court to abandon its effort to assess the "reasonableness"
of each unjust exercise of state power, in isolation from all the others, in
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).
248. Id.
favor of a more thoroughgoing critique of the regime's first principles. This
could not have been accomplished within the terms of the "legal realism"
preferred by the regime's rulers. It would have required an invocation of
general moral principles, of natural law.
The second (and stronger) version of the critique charges that even
recourse to natural law, as by the Brazilian Court, constitutes a form of com-
plicity, since the implication remains that military rulers are potentially or
periodically responsive to the claims of critical morality. Moreover, as the
unresponsiveness of such rulers became increasingly apparent, the Justices
should have foreseen that their resistance had become ineffective in re-
straining military rule. Their resignation from office was therefore morally
required, a conclusion to which even their naturalist commitments did not
adequately sensitize them. The fact that their resistance was prompted by
this jurisprudential position rather than another hence made no difference
to their capacity to recognize the esence of their situation and what it re-
quired of them.
The weak version of the critique concedes that when evaluating the
efficacy and defensibility of judicial resistance to authoritarian rule, one
must examine the jurisprudential form in which it is cast. Certain forms are
potentially more meaningful and effective than others in restraining polit-
ical repression and, therefore, implicate the judicial critic less extensively in
the regime's injustices. The stronger version of the critique, by contrast,
treats jurisprudential form as irrelevant to assessing the impact and moral
defensibility of judicial conduct. On this version, all jurisprudential forms
are equally capable of communicating a semblance of continuity with the
constitutional past and suggesting continuing opportunities for effective
criticism of executive conduct-the two contributions of judicial activity to
legitimizing the regime. I shall here refute the first version of this critique,
since it is the more plausible of the two.
The implication of the first version is that it is necessary to break more
thoroughly and decisively from the jurisprudential terms invoked by author-
itarian rulers in their own defense, to mount an effective campaign of resist-
ance to the excesses of their rule. To engage in a dialogue with dictators on
the terms established by one's interlocutors is to ignore larger issues un-
cognizable within these necessarily narrow terms. Only by explicit recourse
to the most general principles of justice could these larger issues be ade-
quately confronted. This confrontation could only take place through judi-
cial appeal to naturalist jurisprudence. This, at any rate, is how we might
expect Fuller and Cover to reformulate their defense of natural law in re-
sponse to evidence, from the Argentine experience, of overt resistance to
authoritarian rule from within positivist and realist terms. Their response
would have to be that such resistance was too mild-mannered in its rhetoric
and too narrow in the scope of its inquiries to permit a meaningful chal-
lenge to the full range of injustices perpetrated by the Argentine military.
Only the Brazilian Court's reliance on natural law, they might add, suc-
ceeded in confronting political oppression by the military at a level of anal-
ysis capable of encompassing its true scope and was therefore capable of
significantly challenging its implementation. This defense of natural law
improves on the defenses offered by Fuller and Cover, at least, in attempt-
ing to come to terms with the patterns of judicial response to authoritarian
rule that are discoverable through comparative history.
Nevertheless, this defense ultimately proves unpersuasive, for concep-
tual and empirical reasons. Both are well argued by Walzer, who contends
that social criticism is most conceptually cogent and practically effective
when expressed in the familiar terms of the community's shared understand-
ings, rather than in the more remote language of categorical imperatives
and concepts of allegedly universal applicability.
249
Criticism works best,
Walzer contends, "when it rubs our noses in the ways we violate our own
professed principles."
250
Few would deny that social criticism is most suc-
cessful when it gives voice to the common complaints of the public, by
elucidating the normative commitments tacitly underlying them. Criticism
of this sort succeeds because it draws strength from everyday conceptions of
obligation and social practice, enabling the critic to communicate with his
intended audience on parochial terms readily intelligible and acceptable to
both. Extending this argument to the legal context, we would expect that
judicial resistance proceeding within the accepted jurisprudential terms of
the surrounding society is likely to be most effective in engaging the sympa-
thies of those to whom it is addressed.
The existing standards and understandings within a "dominant cul-
ture," Walzer contends, are always susceptible not only to apologetic inter-
pretations but also to more critical ones. Self-congratulatory interpretations
of existing standards are no more natural than critical ones. Existing stan-
dards rarely display, in any event, a perfect fit with established practices and
institutions. Criticism therefore doesn't necessarily restrict its scope and se-
verity when it is confined within the terms of a nation's dominant mode of
discourse. Judicial resistance to executive conduct, we may deduce, might
proceed within the dominant jurisprudential terms of a society without fear
of compromising the acuity of critique. By contrast, when criticism applies
principles newly "discovered" by the critic or drawn from a different tradi-
tion, it has little resonance in common complaint and so is greeted with
indifference, if not hostility, by those to whom it is addressed.
249. Michael Wazer, Interpretation and Social Criticism 33-67 (Cambridge: Harvard Uni-
versity 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).
250. Ian Shapiro, Political Criticism 83 (Berkeley- University of California Press, 1990).
Practical opportunities for effective change in the present, moreover,
are lost when one is led to believe that "partial" critique, directed only at
certain specific practices of the regime, is necessarily inferior to "total" cri-
tique, directed against the regime's first principles. Most discussions of the
issue cast the moral terms of a judge's choice in unduly Manichaean terms,
ignoring relevant distinctions. In certain circumstances, for instance, it will
be possible to persuade a judge to reject the executive's application of a
provision to a particular case (as beyond the scope of the statutory terms),
though it remains impossible to persuade her to repudiate the statute itself.
At other times, it will be possible to persuade the judge to reject the repres-
sive statute as unconstitutional, provided she need not appear to repudiate
the regime which has enacted it.
In short, we must recognize that the judge may accept (and thereby
legitimate) a given statute without necessarily accepting or legitimating the
way in which the rulers wish to interpret it. And she may accept and legiti-
mate the regime without necessarily accepting (and being willing to lend
legitimacy to) its most repressive measures. If we insist that judges repudiate
the regime in a root-and-branch way, or if we assume that professional ser-
vice to it places them beyond reach of rational argument, then we deny
ourselves-as advocates for its victims-the chance to chasten executive
abuse in these standard lawyerly ways. As Hirschman has suggested, "voice"
can often be more effective than "exit," precisely because of how it is predi-
cated on an abiding "loyalty" to one's listeners.
251
Judicial inquiries into the details of particular cases, such as those un-
dertaken by the Argentine Supreme Court under the jurisprudential rubric
of positivism and realism, permit judicial resistance that is no less effective
than the more broad-gauged critique rooted in natural law. The most per-
suasive criticism of the Argentine Court would simply be that its members
did not engage in such inquiries often enough. Criticism prompting effec-
tive change is generally animated by the sensation of disappointment with
those in whom one has invested higher aspirations. Because the Argentine
Supreme Court Justices, for instance, had a deep investment in the regime
that had appointed them, and with whose general purposes they identified,
they were impelled to undertake a public criticism of military conduct,
where others who lacked such an investment would surely have capitulated
in the threatening face of raw military power.
Contrary to conventional wisdom in such matters (exemplified by Sny-
der's critique), it may be unnecessary to step outside the terms of legal dis-
course prevalent within one's own time and place in order to find a point
from which critically to evaluate the conduct of political leaders. This is
exactly what the Argentine Court sought to do, in criticizing military con-
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).
duct from the jurisprudential perspectives favored by the regime itself. Some
will find it implausible to extend an account of critical intellectuals to the
situation of avowedly conservative and even authoritarian judges. But a
judge, like the social critic of Walzer's theory, is distinguished from a philos-
opher by his exclusive reliance on the authoritative materials made avail-
able to him by the dominant culture of his place and time. Judicial
interpretations, like those of the connected social critic, must fit and justify
these authoritative materials in great degree, even if they may also partly
criticize the way in which these authorities have been understood and ap-
plied in the past.
The Argentine Court's critique was clearly "internal" to the dominant
jurisprudential forms of the military regime. But it would be wrong to con-
clude summarily that the Brazilian Court's critique was necessarily more
"external" or detached. Naturalist arguments, such as those of the Brazilian
Court, need not be any less internal to a society's accepted modes of legal
discourse, even if current rulers choose to adopt some other jurisprudential
form for their self-justification. The ambiguities of Walzer's theory emerge
as soon as it is applied beyond the easiest cases of immanent critique, those
in which judicial resistance assumes the same jurisprudential form favored
by executive rulers. First, naturalist arguments need not be cast in universal-
ist terms applicable to all peoples and based in human nature. They may
instead be formulated in terms of the particular moral principles that a
given national community has chosen to embrace consistently throughout
its history.
252
This was, in fact, the variety of naturalist argument often made by the
Brazilian Court, in its frequent allusions to principles of liberal constitution-
alism that Brazil's early republican founders, such as Rui Barbosa, had
sought to commit the nation. Natural law can thus be "domesticated,"
forged within a national crucible and thereby recast into immanent critique.
Second, judicial reliance on modes of criticism likely to resonate among the
public at large ought to be considered no more detached from society than a
critical idiom better calculated to resonate in the halls of executive power.
A critique not cast within the preferred idiom of a country's authoritarian
rulers, in short, may nevertheless correspond to dominant understandings
and successfully invoke the sympathies of a substantial group of fellow citi-
zens. As in the Brazilian case, judicial resistance may simply be directed to
society at large or its congressional representatives rather than to executive
elites.
The real difficulty is that criticism, perceived by the critic as working
within the established terms of political and legal argument, may often be
received by authoritarian rulers as altogether remote from such terms. The
252. This is exemplified by Dworkin's account of legal interpretation in the Anglo-
American world. Law's Empire (cited in note 26).
difference between connected and alienated criticism therefore lies almost
entirely in the eye of the beholder. The predictive power of Wazer's theory
is greatly weakened when reformulated to reflect this complexity. His argu-
ment has to be altered almost beyond recognition to read: Social criticism is
most effective when it is interpreted by its targets as working within the
established modes of political and legal argument. The critic himself has
little control over whether his critique is defined by its target as connected
to shared standards of judgment or estranged from them. Hence, the only
judicial resistance to oppressive law that should be regarded as genuinely
connected to an authoritarian regime, for purposes of predicting its practical
efficacy, should be that which operates within the regime's preferred juris-
prudential terms. From this standpoint, the resistance of the Argentine
Court can be regarded as immanent whereas that of the Brazilian Court
cannot. It would be impossible to conclude, on this interpretation, that con-
nected criticism proved any more effective, that its more estranged
alternative.
In an authoritarian regime, the natural audience of the judicial resister
is the executive authorities whose conduct he wishes to alter. He thus has
an "elective affinity" for a form of criticism that facilitates sympathetic re-
sponse from his more powerful interlocutors.
2 53
The jurisprudential form fa-
vored by these interlocutors thus provides the natural language of judicial
resistance in such circumstances, as the Argentine experience suggests. The
judge has an affinity for immanent critique (in my revised sense), because it
poses fewer risks to his interests in professional survival and facilitates his
communication with those in a position to redress his grievances with great-
est ease. The affinity is nevertheless "elective," since the judge may con-
clude that the authoritarian rulers are much less likely to be responsive to
his criticisms than other political participants who may be mobilized in sup-
port of his critique of executive misconduct. This is precisely what occurred
in the Brazilian case.
Though I have here endorsed aspects of the "realist" critique of legal
reasoning, I do not mean to deny that there are judges who conscientiously
believe that their professional resistance or capitulation to authoritarian rul-
ers is constrained by the particular legal theory to which they profess adher-
ence. For such judges the impact of their jurisprudential dispositions is
different from what it is for judges to whom the choice of argumentative
approaches is instrumental and undetermined by theory. Some judges of
naturalist inclination may believe that to couch their resistance in positivist
terms entails a breach. of candor that is indefensible, even under a repressive
state. For such a judge, the stakes are raised. If he is to resist, he must do so
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).
through a jurisprudential idiom that places him at greater personal risk than
a judge who is willing to dissimulate. The Brazilian case suggests that there
are judges who are indeed willing to incur that risk.
Another judge who believes in natural law and in naturalist modes of
legal argumentation may conclude, by contrast, that breaches of candor
concerning his reasoning are morally justified in an authoritarian state, as
long as the legal conclusion reached (i.e., the fact of resistance) is unaf-
fected. In other words, the naturalist judge may hide in positivist clothing,
engage in a kind of jurisprudential cross-dressing. This might seem to pose a
methodological problem for an inquiry like the present. It means that the
fact that resistance is cast in positivist terms does not necessarily indicate
that the judge is a principled positivist. But my central argument has been
that positivism facilitates judicial resistance to authoritarian regimes regard-
less of whether invocation of positivist rhetoric is impelled by intraprofes-
sional commitments (i.e., principled adherence to this legal theory) or by
extraprofessional ones (i.e., common, critical morality).
Despite its limitations and the required amendment suggested above,
Walzer's defense of the efficacy of immanent critique, applied to the judicial
response to authoritarian rule, offers a useful antidote to the Manichaean
vision of critics such as Snyder. For him, any judicial resistance to profound
injustice that is not also implacably committed tQ overthrowing the regime
responsible for it, in the name of universal moral truth, is merely "ornamen-
tal" and actually a surreptitious form of complicity. Connected criticism can
sometimes be quite effective if the critic can in fact engage his intended
audience in dialogue, whoever that may be. Disconnected criticism, how-
ever uncompromising in authorial intent and jurisprudential form, can
sometimes serve the executive's legitimating purposes no less effectively
than more immanent forms of critique.
B. Lessons from Illiberalism: Legal Theory for a Nonideal
World
Many will suppose that nothing of importance to more democratic so-
cieties could be learned from inquiries such as this one. What could be less
significant, in the larger scheme of things, than the experience of judges in
societies where judges themselves seem politically insignificant? (I recall dif-
ficulty experienced by an acquaintance, for instance, in trying to obtain a
copy of the most recent Brazilian constitution from a major Rio bookstore
in 1984-only to be told by the owner that the shop did not carry "periodi-
cal literature").
In addition to advancing the debate between followers of Hart and
Fuller, the preceding analysis also seeks to lay some of the groundwork for a
nonideal theory of adjudication, to be defended later at greater length.
Much contemporary legal theory, like most moral philosophy, takes an ideal
world as its tacit point of departure. Judges are stipulated to possess great
intelligence, perfect information, unlimited resources, impeccable impartial-
ity and disinterestedness.
254
They speak clearly and coherently to executive
and legislative leaders who share these qualities. Beginning from this ideal
and the adjudicative approach thought suitable to it, theorists then gradu-
ally introduce-with obvious reluctance-the qualifications considered
necessary to allow an actual judge to put the theory to effective use in the
nonideal world: the world with which we are more intimately familiar.
This approach closely resembles that of neoclassical economics, which
assumes perfect competition and perfect informational symmetry between
buyers and sellers, only subsequently introducing the amendments acknowl-
edged to be necessary for applying the resulting conclusions to real-world
economies. In both economics and jurisprudence, then, we derive our prac-
tical conclusions about "what should be done" by progressively introducing
modifications into a initial model of how the world ought to work, a model
that is acknowledged from the outset to be very different in crucial respects
from the world to which these conclusions must ultimately be brought to
bear. The chasm between the world from which the conclusions were drawn
and the one to which they are to be applied, however, cannot be viewed as
unbridgeably wide, for then the entire methodological edifice would
collapse.
This approach is unsuitable for applied ethics, an enterprise that en-
compasses judicial ethics. One reason is that there is surprisingly little
agreement about what the ideal world would look like, even among those
avowedly working within the theoretical tradition of Anglo-American lib-
eralism.
25 5
Legal theory would thus do well to follow the advice of Barring-
ton Moore:
On the score of happiness, it is difficult to say anything more than that
its sources seem infinitely various, and that disputes about taste are
notoriously hard to resolve. Matters stand otherwise with misery and
suffering.... If human beings find it difficult to agree upon the mean-
ing and causes of happiness, they find it much easier to know when
they are miserable. Presumably it requires no laborious proof to demon-
strate that they have hardly ever really enjoyed ... being tortured or
slaughtered,.., the loss of beloved persons through the acts of others
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.
255. Compare, e.g., the conclusions in moral theory of Rawls with those of Nozick.
over which one has little or no control,... rotting in prison ... or
simply losing the means of livelihood for the expression of heretical or
unpopular
beliefs.2
56
It follows that normative theory ought to direct its attention not pri-
marily at how to reach utopia, where perfect happiness will reign, but rather
at how to ensure against misery and suffering. There is more likelihood of
agreement about the nature and sources of these. Legal theory should thus
adopt the aims of Thomas Hobbes, rather than of John Rawls or Ronald
Dworkin. Its aspiration should be to prevent the summum malum.
2 7
For
Hobbes, this was anarchy, the "war of all against all." For legal theory, it
must be judicial capitulation to severe repression. Legal theory need not
aspire to attain the summum bonum-a perfectly just society (as for Rawls)
or a superhuman judiciary (as in Dworkin's Hercules).
258
The miseries enu-
merated by Moore are most clearly present, and reach their apogee, in vio-
lently undemocratic societies such as those examined here. Normative
theory hence ought to look for guidance in the historical experience of such
societies and to the actual efforts of those within them who have sought to
resist the injustices their rulers inflict.
259
Only after we have discovered
what fosters meaningful resistance to these evils, and effective dialogue with
its perpetrators, in circumstances such as those of Argentina and Brazil can
we begin to work back toward introducing the qualifications necessary to
make our conclusions for action directly applicable to societies like our
own.
26 0
Ours are societies, after all, where misery and injustice are in no short
supply, even if not so pervasive as in parts of South America. A nonideal
theory of adjudication, in short, needs to start from the easy cases, where it
is relatively clear what judges should do and how they should do it. Only
later can theory begin to make the modifications necessary to bring its dis-
coveries to bear on societies where injustice and its sources are somewhat
less transparent. As a method of doing nonideal theory, it is surely more
256. Moore, Reflections on the Causes of Human Misery and upon Certain Proposals to
Eliminate Them 1-2 (Boston: Beacon Press, 1975).
257. I follow the recent lead of John Dunn in this regard. Interpreting Responsibility
193-96 (cited in note 77).
258. Rawls states explicitly that his conclusion make sense only for a "well-ordered soci-
ety." Political Liberalism 35-40 (New York: Columbia University Press, 1993).
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).
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 categorically 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.
defensible to start with theories designed to account for effective resistance
to radical injustice, revising them to deal with less severe cases, than to start
with theories designed to explain how judges ought to behave in a pre-
lapsarian world where injustice and political repression do not and cannot
exist. Thus, even as we again seek to teach our liberal democratic ideals to
other parts of the world, we stand much to learn from the experience of the
most illiberal societies about the sources of injustice and resistance-legal
and otherwise-to the suffering it causes.

MarkOsiel DictatorsJudicialBrazilArgentina

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

MarkOsiel DictatorsJudicialBrazilArgentina

Uploaded by

Copyright:

Available Formats

Citation: 20 Law & Soc.

Inquiry 481 1995

You might also like