Comparing Transitions to Democracy. Law and Justice in South America and Europe (Studies in the History of Law and Justice, 18)

This present book examines some of the key features of the interplay between legal history, authoritarian rule and political transitions in Brazil and other countries from the end of 20th Century until today. This book casts light on these aspects of the role of law and legal actors/institutions. In the context of transition from authoritarian rule to democratic state, Brazil has produced a significant literature on the challenges and shortcomings of the transition, but little attention has been given to the role of law and legal actors/institutions. Different approaches focus on the legal mechanisms, discourses and practices used by the military regime and by the players involved in the political transition process in Brazil. A comparative perspective that takes into account different political transitions – and their legal consequences – in Europe and Latin America complements the analysis. Part 1 (4 essays) discusses some of the central issues of political transition and legal history in contemporary Brazil, focusing on the time of the transition (and its effects on transitional justice) with different perspectives, from racial and gender issues to constitutional reform and police repression. Part 2 (3 essays) brings the comparative studies on South American experiences. Part 3 (4 essays) analyses different cases of transition to democracy in Chile, Portugal, Spain and Italy. Part 4 (3 essays) proposes a historiographical and methodological approach, considering the politics of time involved in the interplay between political transitions and legal history. Contents Editors and Contributors 1 The Transition to Democracy: A New Object of Study for Legal History 1.1 The Problem of Transitional Justice 1.2 Limitations of Transitional Justice 1.3 Constitutional History and Transitional Processes 1.4 The Scope of the Transitional Process 1.5 Temporal Dimensions of the Transitional Process 1.6 Transition and Its Unfoldings Part I Brazil 2 “Where the Silences Are Mute”: Political Transition, State Violence, and the Racial Question in Contemporary Brazil 2.1 Introduction 2.2 Dictatorship, Repression, Resistance: The Black Movement in Question 2.3 Democratization, the Constitution, and the Racial Question 2.4 Police Violence and Race: The Case of the Mothers of May 2.5 Concluding Remarks: Race, Silence and Social Time References 3 Political Transition, Continuities and Permanences: The Rights of Indigenous Peoples and Political Transition in Brazil 3.1 Introduction 3.2 History of the Rights and the Extermination of the Indians in Brazil 3.3 The Policy of “Organised Extermination” of the Indians Under the Military Dictatorship 3.4 Political Transition Between Continuities and Permanencies and the Paradox of the Inclusion of the Exclusion of the Indians in Brazil 3.5 Final Considerations References 4 Unemployed People in Street Protests: Theories of Political Transitions and the Limits of the Brazilian Democratization 4.1 Introduction 4.2 Debates on the Latin American Political Transitions 4.3 Street Protests During the Brazilian Political Transition: The Case of Looting in São Paulo (1983) 4.4 Looters and Troublemakers: Political Citizenship in the New Republic 4.5 Looters and the Unemployed: Social Citizenship in the New Republic 4.6 Looters and Criminals: Notes on Legal Instrumentalization 4.7 Final Remarks References 5 Constitutional Politics During the Early Years of Brazilian Civil-Military Dictatorship: The Constitution as a Tool for Authoritarian Political Transition 5.1 “Legal Instrumentalism” and Political Transition in the Context of Brazilian Civil-Military Rule (1964–1985) 5.2 Controlling Constitutional Change 5.3 Conclusion: The Failure of the Authoritarian Constitutional Project References Part II Comparative Perspectives 6 Transitional Justice and Sexual Crimes in Latin America: Argentina, Brazil and Chile in Comparative Perspective 6.1 Introduction 6.2 Political Transitions and Silence Surrounding Sexual Crimes 6.3 Different Paths for Addressing Sexual Violence: The Uses and Limits of Law 6.3.1 Obstacles and Strategies to Bring Sexual Violence to Court 6.3.2 Obstacles and Strategies of Legal Procedure 6.4 Final Remarks References 7 Justice Entrepreneurs and the Struggle for Accountability in South America: Comparative Reflections on Transitional Justice and Operation Condor 7.1 Introduction 7.2 South America’s Dictatorships and Transitions 7.3 Accountability After Terror 7.3.1 Justice vs. Impunity 7.3.2 Finding the Truth 7.3.3 Reparations 7.4 Justice for Operation Condor 7.4.1 Accountability for Transnational Crimes 7.4.2 Emblematic Operation Condor Sentences 7.5 Justice Entrepreneurs 7.6 Conclusion References 8 Mobilization and Judicial Recognition of the Right to the Truth: The Inter-American Human Rights System and Brazil 8.1 Introduction 8.2 Mobilization and Recognition of the Right to the Truth in the IASHR 8.2.1 Mobilization and Recognition of a Right to the Truth Grounded on the American Convention on Human Rights 8.2.2 The Connection Between the Right to the Truth and the Quest for Justice 8.3 The Mobilization of the Right to the Truth and Its Acknowledgement by the Brazilian Judiciary 8.4 Final Remarks References Part III Comparative Case Studies 9 Legitimation Narratives, Resistance, and Legal Cultures in Authoritarian and Post-authoritarian Chile: Lawyers and Judges in the (Post)-Transition 9.1 Introduction 9.2 The Legal Profession in Pre-dictatorship Chile: The Historical Roots of Chilean Legalism 9.3 Courts, Coercion and Human Rights Lawyering During the Pinochet Regime: 1973–1990 9.4 Transition and Its Discontents 9.5 Final Remarks References 10 Spanish Law: Coming to Terms with the Ghosts of Francoism (1936–2017) 10.1 Introduction 10.2 Historical Memory in Law Under Franco (1936–1958) 10.3 Amnesty and Oblivion (1975–1982) 10.4 Democratic Consolidation: Legal Silence (1982–1999) 10.5 “The Grandchildren’s Revolt” (2000–2016) 10.6 The Implementation of the Memory Law (2008–2016) 10.7 The Current Moment: Dominant and Subaltern Memory 10.8 Conclusions References 11 The Failed Reconciliation: The Role of the Judiciary in Post-fascist Italy and the Togliatti Amnesty 11.1 Introduction 11.2 The “Impossible” Purge of the Judiciary 11.3 A Special Justice? 11.4 The Togliatti Amnesty 11.5 Conclusion References 12 Punishing the Wrongdoers During the Portuguese Transition to Democracy: A Comparative Historical Analysis 12.1 Introduction 12.2 The Portuguese Democratization and Transitional Justice Processes 12.2.1 Rupture with the Past 12.2.2 Revolutionary Legitimacy 12.2.3 Limited Judicial Role 12.2.4 Left-Wing Bias 12.3 Conclusion References Part IV Transitional Time: Theoretical Approaches 13 Transitional Justice: A Likely Story 13.1 Introduction 13.2 Ruti Teitel’s Transitional Justice 13.3 Distributing Violence 13.4 A Likely Story 13.5 Conclusions References 14 Taking Transitional Justice Carefully: Multi-temporalities, Care, and Inclusion in Times of Transition 14.1 Introduction: Going Back to Justice in Times of Transition 14.2 The Arrogance of a Single Present Time 14.3 The Normalization of Both Bodies and Times in Transition 14.4 Conclusion: Social Inclusion and Carefulness During Transition References 15 Time and Legal Change: Some Methodological Remarks on Italy’s Transition to Democracy 15.1 Introduction 15.2 The Accountability of Fascism Between Restorative Justice and National Appeasement: The Normative Framework 15.3 Issues and Problems of the Criminal-Law Debate on the Transitional Measures 15.4 Concluding Remarks References Chronology ARGENTINA BRAZIL CHILE ITALY PORTUGAL PARAGUAY SPAIN URUGUAY Index