Mark J. Osiel, “Dialogue with Dictators: Judicial Resistance in Argentina and Brazil.” Law & Social Inquiry, vol. 20, no. 2 (1995): 481-560.
Summary: This article explores how judges respond to authoritarian pressure by analyzing judicial behavior under military rule in Argentina and Brazil. It investigates whether particular theories of legal interpretation—such as positivism, legal realism, or natural law—make judges more likely to resist or comply with repressive regimes. The study finds that no legal theory inherently predisposes judges to either submission or resistance. Instead, judges’ responses are shaped by political context, including the regime’s preferred legal rhetoric and the judiciary’s acceptance of extra-constitutional authority. In Argentina, judges used positivist reasoning to critique only the “excesses” of military rule, aligning with the junta’s legal framing. Brazilian judges, less sympathetic to the regime, turned to natural law to question broader legitimacy and reach the public. Ultimately, the article suggests that, paradoxically, strict literalism may often provide the most viable path for judicial resistance, since authoritarian regimes typically uphold the appearance of legality without formalizing their most repressive policies.