The Rhetoric of Legal Crisis
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The Rhetoric of Legal Crisis: Lawyers and the Politics of Juridical Expertise in Chile (1830-1994) by Cristián Villalonga Torrijo A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Jurisprudence and Social Policy in the Graduate Division of the University of California, Berkeley Committee in charge: Professor Malcolm M. Feeley (Chair) Professor David Lieberman Professor Marianne Constable Spring 2016 Abstract The Rhetoric of Legal Crisis: Lawyers and the Politics of Juridical Expertise in Chile (1830-1990) by Cristián Villalonga Torrijo Doctor of Philosophy in Jurisprudence and Social Policy Professor Malcolm M. Feeley (Chair) By the mid-1960s, different groups of Chilean law graduates pervasively began to manifest malaise about the competition of other professions in public decision-making (e.g. sociologists and economists), and the unresponsiveness of legal institutions to new social needs . Socio-legal scholarship agrees, based on a preliminary reading of the historical sources and anecdotal evidence, that lawyers lost their quasi-monopoly on statecraft and were unable to resourcefully participate in the political arena during twentieth-century Latin America. However, such phenomena have not been analyzed systematically. Paying attention to Chilean elite lawyers, this dissertation tries to fill the aforesaid gap. Builds upon Max Weber and Pierre Bourdieu’s scholarship as theoretical scaffolding, this research examines the transformation of juridical expertise in the process of modernization and the different strategies employed by legal professionals to regain influence in public governance. Through qualitative and quantitative analysis, the first part of my dissertation studies how the legal profession lost political power along with the division of governmental labor and the bureaucratization of courts and the bar occurred in twentieth-century Chile. The second part, chapters 4 to 7, analyzes how different networks of lawyers mobilized after the erosion of their authority, employing a dual strategy of collective action to advance simultaneously their position inside the legal field and diverse political agendas during the Cold War years 1 Table of Contents List of Illustrations iii Acknowledgments vi INTRODUCTION The Structural Change of the Legal Profession 1 and the Contest for the Power of Law Part I: Lawyers in Public Governance CHAPTER 1 The Republic as a Juridical Construction 13 CHAPTER 2 Reframing the Place of Law in Public Governance: Legal Elites and the Advancement of the Administrative State 56 CHAPTER 3 The Rhetoric of Legal Crisis and the Breakdown of the Legal Profession 111 Part II: The Fragmentation of the Legal Profession CHAPTER 4 A New Law for a New Society: Rethinking Legal Authority to Manage Social Change (1964-1974) 143 CHAPTER 5 Legal Path to Socialism? Juridical Instruments to Mobilize Popular Power (1970-1973) 172 CHAPTER 6 The Legal Crisis as Authoritarian Narrative: Autonomy, Modernization and Entrenchment (1973-1990) 209 i CHAPTER 7 Reforming Law, Pursuing Democratization. Dissident Lawyers and the Alternative Juridical Expertise (1978-1990) 255 CONCLUSION Understanding the Politics of Juridical Expertise: Chile, Latin America and Beyond 287 BIBLIOGRAPHY 299 APPENDIXES 1-17 334 ii List of Illustrations Figure 1.1 . Senate 1834- 1924. An Occupational Profile 33 Table 1.1. Lawyers at the Cabinet of Ministers (1831-1881) 38 Table 1.2. Political Stability in Latin America (1830-1924) 45 Figure 2.1. The Redefinition of Law within Public Governance: An Institutional Dynamic 58 Figure 2.2 . The Senate, 1925-1969. An Occupational Profile 69 Figure 2.3 . The Cabinet of Ministers, 1932-1970. An Occupational Profile by presidential periods 70 Figure 2.4. Mapping positions in the State and the Legal Field: Law Graduates’ Profiles at the Cabinets of Ministers and the Senate 71 Table 2.1 . Politically relevant Lawyers within the Entrepreneurial State: 1930-1960 75 Table 2.2. Occupational Profiles. Chairs at the Central Bank 76 Table 2.3 . Occupational Profiles. Chairs at the Superintendence of Banks 77 Table 2.4. Participation of lawyers in the boards of business associations 78 Figure 2.5. CHBA’s Boards: Engagement in Governmental Responsibilities 83 Figure 2.6. Political Profiles at the Judiciary (1823-1970) 85 Table 3.1. The New Symbolic Representations of Law: A turn inside the interpretive community 137 Figure 4.1. Legal Paths to Development 144 Table 4.1. The Reformist Legal Network (1964-1975) 146 Table 5.1. The Left-Leaning Legal Network at the UP 177 Figure 5.1. Takings by mean of D.L. 520 of 1932 190 Table 5.2. Legal Institutions’ Reaction to UP’s takings 201 Table 6.1. The Authoritarian Legal Network 215 Table 6.2. Commissions Reform to the Codes (1975-1977) 241 Table 7.1. The Convergence of Dissident Lawyers 260 Table 8.1. Dual strategies of mobilization: A concise review 294 iii Figure A.1. Lawyers Graduated per year between 1788 and 1898 334 Figure A.2 Example on the period 1830-1924 335 Table A.3. Lawyers at the Senate (1834-1924) 340 Table A.4. Lawyers at the Cabinet of Ministers (1831-1924) 344 Table A.5.1. Profession and occupational background of Cabinet Ministers by presidential periods (1831-1881) 347 Table A.5.2. Social Extraction of Law Graduates in Cabinet of Ministers by presidential periods (1831-1881) 347 Table A.5.3 Place of Legal Training of Law Graduates in Cabinet of Ministers by presidential periods (1831-1881) 348 Table A.5.4 Judicial and academic experience of Law Graduates in Cabinet of Ministers by presidential periods (1831-1881) 348 Table A.6.1. Lawyers at the Senate. Period 1932-1951 351 Table A.6.2. Lawyers at the Senate. Period 1952-1973 353 Figure A.7 Lawyers at the Senate (1925-1969): Their Social Backgrounds 355 Table A.8 Lawyers at the Cabinet of Ministers (per government, 1932-1970) 356 Figure A. 9 Board of the Institute of Lawyers of Santiago (1915) 360 Table A. 10 Profiles at the CHBA’s General Board 362 Figure A 10.1. (CHBA) Dominants Political Parties during the period 1932-1958 366 Figure A 10.2. (CHBA) Main Political Parties since the mid-1960s 366 Figure A 10.3. Social Profiles at the CHBA’s General Board 367 Figure A 10.4. Casting a Comparative Glance on the Bar General Boards 368 Figure A. 11. The Judiciary: A Glance on Judges’ Social Profiles 369 Table A.12. The Rhetoric of Legal Crisis: An Analysis of its Timing 371 Figure A. 12 The Rhetoric of Legal Crisis: An Analysis of its Timing 371 Table A. 13. The Rhetoric of Legal Crisis: A Glance on the Authors 373 Figure A 13. A Look at their positions in the State and the Legal Fields 374 Table A.14 Rhetorical Elements of the Written Sources 379 Table A.15 Lawyers in the projects of constitutional reform (1964-1970) 380 Table A 16.1 Law Professors in the Reform to the Law School (University of Chile. 1966 Reform) 381 iv Table A 16.2. Law Professors in the Reform to the Law School (University of Chile. 1970 Reform) 381 Table A 16. 3 Law Professors in the Reform to the Law School (Catholic University of Chile, 1970) 382 v Acknowledgments In my endeavor to study law, history and politics, I have accrued numerous professional and personal debts over the past years. I was fortunate to benefit from a splendid Dissertation Committee integrated by Malcolm Feeley (Chair), David Lieberman and Marianne Constable. There are not enough words to say thanks for their enormous help and intellectual encouragement during all my time here at the Jurisprudence and Social Policy Program. I have also benefited from valuables commentaries provided by Javier Couso, Lauren Edelman, Terence Halliday, Robert A. Kagan, Laurent Mayali, Matthew Mirow, Calvin Morrill, Rogelio Pérez-Perdomo, and Rachel Stern. Conferences at the Law and Society Association and the American Society for Legal History proved enormously inspiring as well. In my country, I especially thank Carlos Frontaura, a great friend and mentor who has always provided support above and beyond the call of professorship. Also, I thank all who have helped me in my academic career at the Pontificia Universidad Católica de Chile School of Law, particularly, the Director of the Department of Legal Science, Gonzalo Rojas Sánchez, and the former Deans Arturo Yrarrázaval and Roberto Guerrero. I feel honored to have been invited to teach at my alma mater the years to come. During my studies, I have received financial support from the Fulbright Program, the Chilean Commission for Science and Technology, the Pontificia Universidad Católica de Chile School of Law, the Tinker Foundation, the Graduate Division, the Center for Latin American Studies and the Jurisprudence and Social Policy Program at Berkeley. Equally, I would like to thank the numerous colleagues and friends who have assisted me. Some have collaborated in editing different parts of this manuscript: Krzysztof Odyniec, Lonjino Lazcano, Sara Ludin, Jesse Rodenbiker, Anne Takefuji, and Lawrence Viles. Others have given me a hand by helping during my fieldwork in Chile or providing moral encouragement: Nicolas Pérez, Krostoffer Verbeken, Juan Agustín Castellón, Carlos Henríquez, Margarita Farías, Verónica Recabarren, Mayra Feddersen, Paco García de Vinuesa, Gabriela Vivanco, Vitorio Allende, Álvaro Lapetra, Juan Eduardo Ibáñez, inter alia. At last, but not at least, I want to express my enormous gratitude to my family. I am lucky to have my wife Juhssett Maturana and our sons, Arturo and Antonio, who stood by me during all the time of this academic endeavor. My parents Antonio and Clara, and my siblings, have also been a constant source of support. I greatly appreciate the sacrifices all they made to back me. And for that I am eternally grateful. Berkeley, May 13 th , 2016.