Studies in the History of Law and Justice

Volume 18

Series Editors Mortimer Sellers, University of Baltimore, Baltimore, MD, USA Georges Martyn, Law Faculty, University of Ghent, Ghent, Belgium

Editorial Board António Pedro Barbas Homem, Faculty of Law, Universidade de Lisboa, Lisbon, Portugal Emmanuele Conte, Facolta di Giurisprudenza, Università degli Studi Roma Tre, Roma, Italy Maria Gigliola di Renzo Villata, Law & Legal History, Università degli Studi di Milano, Milano, Italy Markus Dirk Dubber, Faculty of Law, University of Toronto, Toronto, ON, Canada William Ewald, University of Pennsylvania Law School, Philadelphia, PA, USA Igor Filippov, Faculty of History, Moscow State University, Moscow, Russia Amalia Kessler, Stanford Law School Crown Quad, Stanford University, Stanford, CA, USA Mia Korpiola, Helsinki Collegium for Advanced Studies, Helsinki, Finland Aniceto Masferrer, Faculty of Law, Universidad de Valencia, Valencia, Spain Yasutomo Morigiwa, Nagoya University Graduate School of Law, Tokyo, Japan Ulrike Müßig, Universität Passau, Passau, Germany Sylvain Soleil, Faculté de Droit et de Science Politique, Université de Rennes, Rennes, France James Q. Whitman, Yale Law School, New Haven, CT, USA The purpose of this book series is to publish high quality volumes on the history of law and justice. Legal history can be a deeply provocative and influential field, as illustrated by the growth of the European universities and the Ius Commune,the French Revolution, the American Revolution, and indeed all the great movements for national liberation through law. The study of history gives scholars and reformers the models and courage to question entrenched injustices, by demon- strating the contingency of law and other social arrangements. Yet legal history today finds itself diminished in the universities and legal academy. Too often scholarship betrays no knowledge of what went before, or why legal institutions took the shape that they did. This series seeks to remedy that deficiency. Studies in the History of Law and Justice will be theoretical and reflective. Volumes will address the history of law and justice from a critical and comparative viewpoint. The studies in this series will be strong bold narratives of the development of law and justice. Some will be suitable for a very broad readership. Contributions to this series will come from scholars on every continent and in every legal system. Volumes will promote international comparisons and dialogue. The purpose will be to provide the next generation of lawyers with the models and narratives needed to understand and improve the law and justice of their own era. The series includes monographs focusing on a specific topic, as well as collections of articles covering a theme or collections of article by one author.

More information about this series at http://www.springer.com/series/11794 Cristiano Paixão · Massimo Meccarelli Editors

Comparing Transitions to Democracy. Law and Justice in South America and Europe Editors Cristiano Paixão Massimo Meccarelli School of Law Department of Law Universidade de Brasília Università di Macerata Brasília, Brazil Macerata, Italy

ISSN 2198-9842 ISSN 2198-9850 (electronic) Studies in the History of Law and Justice ISBN 978-3-030-67501-1 ISBN 978-3-030-67502-8 (eBook) https://doi.org/10.1007/978-3-030-67502-8

© Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Contents

1 The Transition to Democracy: A New Object of Study for Legal History ...... 1 Cristiano Paixão and Massimo Meccarelli

Part I Brazil 2 “Where the Silences Are Mute”: Political Transition, State Violence, and the Racial Question in Contemporary Brazil ...... 11 Cristiano Paixão 3 Political Transition, Continuities and Permanences: The Rights of Indigenous Peoples and Political Transition in Brazil .... 31 Juliana Neuenschwander Magalhães 4 Unemployed People in Street Protests: Theories of Political Transitions and the Limits of the Brazilian Democratization ...... 49 Maria Pia Guerra 5 Constitutional Politics During the Early Years of Brazilian Civil-Military Dictatorship: The Constitution as a Tool for Authoritarian Political Transition ...... 73 Leonardo Augusto de Andrade Barbosa

Part II Comparative Perspectives 6 Transitional Justice and Sexual Crimes in Latin America: Argentina, Brazil and Chile in Comparative Perspective ...... 87 Claudia Paiva Carvalho 7 Justice Entrepreneurs and the Struggle for Accountability in South America: Comparative Reflections on Transitional Justice and Operation Condor ...... 111 Francesca Lessa

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8 Mobilization and Judicial Recognition of the Right to the Truth: The Inter-American Human Rights System and Brazil ...... 137 Carla Osmo

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 ...... 165 Cath Collins 10 Spanish Law: Coming to Terms with the Ghosts of Francoism (1936–2017) ...... 193 Alfons Aragoneses 11 The Failed Reconciliation: The Role of the Judiciary in Post-fascist Italy and the Togliatti Amnesty ...... 215 Antonella Meniconi 12 Punishing the Wrongdoers During the Portuguese Transition to Democracy: A Comparative Historical Analysis ...... 241 Filipa Raimundo

Part IV Transitional Time: Theoretical Approaches 13 Transitional Justice: A Likely Story ...... 265 Gabriel Rezende 14 Taking Transitional Justice Carefully: Multi-temporalities, Care, and Inclusion in Times of Transition ...... 279 Douglas Antônio Rocha Pinheiro 15 Time and Legal Change: Some Methodological Remarks on Italy’s Transition to Democracy ...... 295 Massimo Meccarelli

Chronology ...... 311 Index ...... 319 Editors and Contributors

About the Editors

Cristiano Paixão is Professor of Legal History and Constitutional Law at the University of Brasília Law School. He received his Doctor in Law degree from Federal University of Minas Gerais, with postdoctoral studies in historiography at Ecole des Hautes Etudes en Sciences Sociales de Paris and modern history at Scuola Normale Superiore di Pisa. He was a Visiting Professor at Macerata Univer- sity School of Law and at the Master’s Program in Constitutional Law at Seville University, and has published extensively about constitutional history. He was a member of the Brazilian Amnesty Committee (Ministry of Justice) and was one of the coordinators of the Anísio Teixeira Memory and Truth Commission (University of Brasília). His main research interests are constitutional history, law and literature, and interdisciplinary studies in law.

Massimo Meccarelli is Professor of Legal History at the University of Macerata (Italy) and Affiliate Researcher of the Max Planck Institute for European Legal History (Frankfurt am Main). He was Visiting Professor at: Universidad Autónoma de Madrid, Johann Wolfgang Goethe-Universität in Frankfurt am Main, Universität Wien, and Universität Luzern. He is author of several works on history of legal thought, history of justice, historiography, and methodology of legal history. His most recent research interests are law and diversity, legal pluralism, constitution making process, time and law, and law and humanities.

Contributors

Leonardo Augusto de Andrade Barbosa Center for Continuing Education and Professional Development (CEFOR, Chamber of Deputies), Brasília, Brazil Alfons Aragoneses Department of Law, University Pompeu Fabra, Barcelona, Spain

vii viii Editors and Contributors

Claudia Paiva Carvalho Instituto de Pesquisa e Planejamento Urbano, Universi- dade Federal do Rio de Janeiro, Rio de Janeiro, Brazil Cath Collins Ulster University, Belfast, Northern Ireland Maria Pia Guerra School of Law, University of Brasília, Brasília, Brazil Francesca Lessa Department of International Development and the Latin American Centre, University of Oxford, Oxford, UK; Observatorio Luz Ibarburu, Montevideo, Uruguay Massimo Meccarelli Department of Law, University of Macerata, Macerata, Italy Antonella Meniconi Department of Literature and Modern Cultures, University of Rome, La Sapienza, Italy Juliana Neuenschwander Magalhães School of Law, Federal University of Rio de Janeiro, Rio de Janeiro, Brazil Carla Osmo Federal University of São Paulo, São Paulo, Brazil Cristiano Paixão School of Law, University of Brasília, Brasília, Brazil Douglas Antônio Rocha Pinheiro School of Law, University of Brasília, Brasília, Brazil Filipa Raimundo ISCTE-Lisbon University Institute, Lisbon, Portugal Gabriel Rezende Instituto Brasiliense de Direito Público, Brasília, Brazil