The opposition between constitutionalism and dictatorship pervades the contemporary social sciences and reflects a long-standing theoretical conception of absolute power. This chapter explores the theoretical dimensions of the relationship between institutional constraints and dictatorship. After noting the prevalence of conceptions that view authoritarian power as unlimited, I explore at length the many aspects of the standard argument against autocratic self-limitation. To do this, I set out a conception of institutional limits, discuss the theory of sovereignty as an explanation of why rulers bearing absolute power cannot limit themselves, caution against conceptual confusions that might suggest facile – though inadequate – responses to the traditional theory, and conclude by presenting an account of the conditions under which institutional constraints might be effectively introduced under an authoritarian regime.

Dictatorship and Unbound Power

Since the beginning of the twentieth century the opposition of democracy and dictatorship has increasingly dominated political discourse on forms of government. In contrast to earlier classifications which elaborated variations on the classical trichotomy of monarchy, aristocracy, and democracy, the contemporary discussion of political regimes is largely exhausted in the dualism of dictatorship and democracy. Although scholars use a range of terms to refer to authoritarian regimes and have elaborated a number of subtypes, the principal criterion for differentiating dictatorship and democracy is the manner whereby laws binding upon a territory's inhabitants are created: In dictatorships laws are imposed from above, whereas through the mediation of elections and representation, laws emerge in democracies from among the very citizens who are subject to them.

On March 11, 1981, amidst great pomp and ceremony, the constitution went into force. In a private act, Pinochet's closest collaborators first bestowed the tricolor presidential sash upon him. Afterward, the swearing-in ceremony took place in the main hall of the Diego Portales building, the seat of the government and Junta offices. Accompanied by the rest of the Junta, the cabinet, the members of the Constitutional Tribunal, and the Justices of the Supreme Court, General Pinochet took the oath of office and swore allegiance to the constitution and the law. Later, in the Metropolitan Cathedral, Cardinal Raúl Silva Henríquez celebrated the traditional Te Deum Mass. The following morning, President Pinochet became the twenty-eighth president to occupy the majestic La Moneda palace, whose reconstruction after the September 11, 1973 bombing had just been hastily completed. That night a reception was held in the Patio de los Naranjos of the palace. The constitutionalization of military rule was being embellished with all of the traditional Republican pageantry of the past.

Beyond the immediate circle of those in power and pinochetista civilians, there was little to celebrate on March 11, 1981. The armed forces had been in power for seven and a half years and their new constitution did nothing to change that. For all the talk of the “constitution of liberty,” Chile remained subject to military rule. In the eyes of the opposition and foreign critics, the constitution was merely a move to legitimate further dictatorship. Like most authoritarian constitutions, the elaborate democratic edifice of the 1980 constitution, even with its many restrictive precepts, was nothing more than a façade: Through the back door authoritarian rule reappeared and was firmly entrenched.

Why a book about a dictatorship in a series on theories of democracy?

Constitutionalism and Dictatorship: Pinochet, the Junta, and the 1980 Constitution describes the process of legalization of a dictatorship. Since the story is full of drama, I will not reveal the plot. But the ending is known. A brutal military dictatorship, unadorned by any civilian institutions, handling opponents with arbitrary repression, departed from power according to the rules it set nine years earlier. Why dictators set these rules and why they obeyed them is the subject of Robert Barros's story. The puzzle this story raises, however, has deep consequences for understanding the rule of law under democracy.

In the classical liberal view, only a divided government can be a limited one. As Hampton (1994) and Kavka (1986) argued against Hobbes, this is the foundation of the rule of law. Moreover, a mere separation of powers is not enough, since separation of powers leaves unlimited latitude to the legislature, decisions of which must be implemented by all other branches of government. What is needed is a system of checks and balances that makes it impossible for any particular authority to undertake actions unilaterally, without the cooperation or consent of some other authorities.

The Madisonian view asserts that a government divided in this manner will be constrained to act according to rules.

With the massive repression unleashed by the military coup, the definition of the boundaries between law and extralegal force immediately emerged as potentially the most explosive point of contact between the judiciary and the military regime. As in any legal system conforming to the rule of law, Chilean constitutional and statutory law stipulated that all arrests had to comply with strict guarantees protecting individual freedoms, incarceration could only follow conviction by trial, and, even under constitutional states of emergency, such as the state of siege, due process remained in force and the scope of emergency powers was delimited. In the days following the coup, before the onslaught of repressive military power, these norms faded from the horizon. Mass detentions, summary executions, bodies in the Mapocho River, and the first military tribunals were clear signals that the precise argument of lawyers had given way to time of war, as the military itself characterized the period for legal purposes.

Nevertheless, despite this abrupt displacement, under the constitution the judiciary held the authority, if not the power, to see that these transgressions were corrected. The judiciary's relevant authority in this new context was twofold. First, on petition, the judiciary was empowered to uphold constitutional guarantees of due process and protect persons from arbitrary arrest. The instrument was the recurso de amparo, a writ similar to habeas corpus, which on appeal could proceed to the Supreme Court. Second, although the declaration of a state of siege gave military courts jurisdiction over most political offenses, the constitution authorized the Supreme Court to supervise all courts, which implied that the Court held the authority to review and correct the administration of military justice.

When on September 11, 1973, the Chilean armed forces and carabineros, the national police, ousted the properly elected government of Salvador Allende, seized power, and unleashed a violent repression against the Left, they unambiguously broke with standing constitutional norms regarding the obedient and nondeliberative character of the armed forces, valid methods of accession to and abdication of office, the separation of powers, and the rule of law. By these acts the Chilean armed forces put an end to democracy and opened the door to dictatorship. Though the exclusionary and repressive character of the military's rule was blatant from the outset, what type of dictatorship would follow was not immediately evident. Within a day of the coup, the armed forces arrogated to themselves the “Supreme Command of the Nation,” formed a four-man Junta de Gobierno composed of the commanders in chief of the army, navy, and air force and the director general of the national police force, carabineros, and pledged to respect the law and the constitution insofar as the situation permitted.

However, these initial measures were ambiguous and raised a number of questions. First, what would be the scope of the new regime's powers? The concept Supreme Command of the Nation was without referent within the Chilean constitutional tradition and provided few clues as to the range of powers assumed by the military. Second, once the scope of these powers was settled, how would their exercise be organized among the armed forces? Would one force dominate the executive or would mechanisms for power sharing be instituted?

This book is about the military dictatorship that governed Chile for sixteen and a half years from September 11, 1973 through March 11, 1990. It is widely accepted that this was a dictatorship dominated by a single man, General Augusto Pinochet Ugarte, and that the centralization of power in his person explains the exceptional duration of military rule in Chile. This book is also about a central problem within modern political theory: the nature of absolute power and whether rulers who hold such power can effectively constrain themselves with institutions of their own making. Generally, it is believed that such autocratic self-binding is impossible. The reasoning is simple and long-standing: Dictators cannot subject themselves to rules because dictators can always change rules that restrict their power or else violate them without facing sanction. For this reason, effective constitutional limitation of authoritarian power is generally held to be impossible.

This book calls into question both of these established wisdoms. Contrary to the “personalization of power” view, it demonstrates that the course of the dictatorship in Chile was shaped by a collegial military junta. Shortly after the coup, this junta demanded rules to regulate power among the armed forces and later introduced and sustained a constitution which set into operation institutions that limited the dictatorship's power and prevented it from unilaterally determining the outcome of the October 5, 1988 plebiscite which triggered the transition to democracy in 1990.

Early in the evening of October 6, 1988, Pinochet appeared on national television. After a month of dressing in civilian attire, the general reappeared in uniform and specified for the people of Chile the precise consequences of the preceding day's events: “Neither the tenets nor the constitutional itinerary outlined have been in play, rather only the election of the person who should lead the country toward the full application of the Fundamental Charter during the following presidential period” (El Mercurio, October 7, 1988).

Among other things, Pinochet was indirectly reminding the nation that in accordance with the constitution, their refusal to grant him a second eight-year term still extended his term, as well as the Junta's, one year. In other words, although his presidential term ended March 10, 1989, T.D. 29 specified that Pinochet would remain president for another year and five months.

The Constitutional and Electoral Dénouement of 1989

Notwithstanding this remedial lesson in constitutional law, civilian political forces attached far broader implications to the victory of the “No.” Sectors of the Left demanded Pinochet's immediate resignation; others, including the PDC, called for early elections; and virtually all parties – from the Left to the Right – called for (or accepted the need for) constitutional reforms. Within days of the plebiscite, the PDC and the rightist Renovación Nacional (RN) had each publicly presented proposals for reform, and by late December the new Minister of the Interior, Carlos Cáceres, announced that he would begin talks with the parties.

These negotiations proceeded by fits and starts, as the constitutional question immediately became intertwined with various political strategies once all parties began to jockey for position heading toward the presidential and congressional elections.

In August 1980, when the constitution was presented to the public, the charter could not be separated from its authoritarian origins and impact. The constitution had been imposed from above: Narrow, appointed bodies prepared preliminary materials behind closed doors; “the founders,” four nonelected, military commanders, aided by their legal counsel, framed the final text; and the only participation citizens were allowed was to assent in a dubious plebiscite carried out amidst a state of emergency. Similarly, the constitution did nothing to alter the dictatorial character of the regime: Despite some changes (discussed in the following chapter), the transitory dispositions left Pinochet in office as president for an eight-year term, gave him expanded repressive powers, and left the four-man military junta to legislate, as well as exercise other government functions. In its genesis and effects the 1980 constitution appeared as a masterwork of authoritarian constitution making: The main body structured a passable – if controversial – democratic edifice, while behind this façade the real structure of dictatorial power stood, braced by the authoritarian scaffolding of the transitory dispositions.

This immediate effect occluded another dimension of the constitution: Its autocratic origins notwithstanding, the main body of the constitution was never intended to organize an authoritarian regime. Contrary to the conventional wisdom, the constitution was crafted neither to assure continuity in power beyond the transitory period nor to grant the armed forces a permanent place from which to dominate civilian politics. The concept of constitutional safeguards set into the 1980 charter was institutional, not tutelary — as Guzmán was wont to insist the constitutional order was to be “self-protected,” secured by organs internal to the political-institutional regime, not by an external guardian, such as the armed forces.

When the members of the Junta decided to promulgate partial constitutional acts – the Actas Constitucionales of 1976 – they inadvertently set in motion a sharp internal debate over institutions and dictatorship that culminated only in 1980 with the promulgation of a constitution. At the outset, the Junta embraced constitutional “self-limitation” as a stratagem to stave off international critics without abdicating power. Nonetheless, the cosmetic manipulation of constitutional forms triggered intense conflicts over the advisability of continued military rule and alternative scenarios of transition. The repercussions of contingent acts, particularly the recoil of the September 1976 car-bomb assassination of Orlando Letelier and Ronni Moffitt in Washington, D.C., and recurring conflicts over the use of dictatorial power further fueled these exchanges. After a drawn-out process, agreement was reached to enact a “definitive” constitution, and in July and early August 1980 the Junta worked out the final text on the basis of proposals drafted by the Constituent Commission and the Consejo de Estado (Council of State), the advisory council created in 1976. The eventual text stipulated the organs and powers that would form a postmilitary “protected” democracy, a timetable and steps for moving to this civilian regime, and the structure of military power during the interim, and was ratified by plebiscite on September 11, 1980 and went into effect six months later.

This chapter analyzes the political dynamics that prompted the promulgation of the 1980 constitution. The following two chapters will examine the substantive content of the constitution and its impact upon military rule and the transition to civilian rule.

The relationship between the constitution and the exception was posed immediately with the Chilean armed forces' irregular assumption of power on September 11, 1973. In its first legal act, the Junta did not openly suppress the 1925 constitution. Rather, in ART. 3 of D.L. No. 1 (D.O., September 18, 1973), the Junta vowed to “guarantee the full effectiveness of the attributions of the judiciary and respect the constitution and laws of the Republic, in the measure that the present situation in the country allows for the better fulfillment of the postulates it [the Junta] has set itself.” In other words, the constitution was to remain nominally in force but its supremacy would be subordinate to the imperatives of the state of exception as defined by the Junta.

However, as was generally the case during the first period of military rule, the initial implications of this vow were vague and ambiguous. A number of questions arose immediately regarding the implications of this dualism of nominal constitutionalism and emergency rule. First, would institutions empowered to exercise constitutional and legal control, such as the Supreme Court and the Contraloría General de la República, in any way limit de facto power? Second, how would the exception affect the constitution? Would the Junta proceed arbitrarily without regard for constitutional forms or would it modify the constitution as necessary to have it conform to its will, or eclectically employ one procedure or the other as it deemed expedient?

Case

Gaston promised to give a large sum of money (a) to his niece Catherine on her twenty-fifth birthday, (b) to his daughter Clara because she was about to marry, (c) to the United Nations Children's Emergency Fund for famine relief, or (d) to a waitress with a nice smile.

Discussions

FRANCE

In Case 1(a), Gaston's promise to his niece appears to be a gift. One way to make a gift irrevocable in French law is by actual delivery to the donee, but Gaston did not deliver, and, in any case, only gifts of small amounts can be made binding in this way. Consequently, the transaction is governed by art. 931 of the French Civil Code: ‘all transactions which constitute giftsinter vivos must be executed before a notary’, that is, by a notarially authenticated document. Therefore, if the promise is made informally, Gaston will not be bound by it. He would be bound if the gift was made in the legal form by a notarially authenticated document. It would also be necessary for his niece to accept (art. 932 of the Civil Code). If those requirements were met, and then he died before paying the promised sum, his estate will be liable since his heirs inherit the whole of his assets (patrimoine), including contractual debts, pursuant to art.

Case

Vito was an executive working for Company, a business firm, on a contract obligating him to continue working, and Company to continue employing him, for a period of ten years. Company promised to pay him a large sum of money, equal to a year's pay, (a) in the midst of his term of employment because he received an offer of immediate employment at higher pay from a competing firm, or (b) at the end of his term of employment, after he had announced his intention to retire, to thank him for his services. Is Company obliged to keep this promise? Does it matter if Vito has already bought a vacation house he could otherwise not afford?

Discussions

FRANCE

In French law, Cases 10(a) and 10(b) raise quite different questions.

The question in Case 10(a) is whether an agreement that restricts an employee's choice of employment is valid. Such a restriction is valid provided that three conditions are fulfilled: the agreement must be limited as to time; it must be limited as to space; and its purpose must be to serve a legitimate interest of the employer. If these conditions are all satisfied, the restriction is valid, but it is still subject to a special rule that is foreign to the requirement of cause in contract law: the employer is not obliged to give something in exchange for the restriction. There are two exceptions to this special rule: it does not apply when a quid pro quo is provided for by a collective agreement with a trade union or by a contract between the employer and the employee.