Dictatorship and the Rule of Law: Rules
and Military Power in Pinochet's Chile
Should we associate the rule of law only with democratic legal systems or can we conceive of the rule of law as an independent phenomenon that may equally be associated with other forms of regime? In particular, can we speak of an autocratic or dictatorial rule of law? In this chapter, I discuss two notions of the rule of law and argue that in principle, under specific conditions, both are compatible with nondemocratic forms of rule. Although this association may not be historically all that common, I analyze one case, the military dictatorship in Chile (1973-90), and try to show that a form of rule of law was operative within the regime, particularly during the last nine years of military rule. In developing this argument, I hope to elucidate some general properties of the rule of law and specify conditions under which rules can have force even upon their own makers.
The term “rule of law” is used quite widely in contemporary theoretical and political discussions. Nevertheless two broad conceptions are prominent. One, variously referred to as a “narrow,” “formal,” or “instrumental” conception of the rule of law, examines the formal characteristics that law must have if a legal system is to provide a nonarbitrary framework around which subjects can form expectations and live their lives. This notion of the rule of law essentially concerns the character of law as a mechanism of mediation between state authorities and social actors. The second notion of the rule of law is more demanding and requires that state authorities and lawmakers themselves be subject to
I wish to thank the participants in the Madrid conference and the anonymous reviewers
from the Cambridge University Press for their comments.