Between Liberalism and Neo-liberalism: Law's Dilemma in Latin America
Jeremy Adelman (History) & Miguel Angel Centeno (Sociology)
Princeton University

Introduction
The twin pillars of liberalism appear triumphant in Latin America: markets allocate resources
and elections define governments.  And yet, Latin American societies remain crisis-prone.  From
Menem's Argentina to Zedillo's Mexico, not only are the governments' legitimacy under assault, but the
very girding of public authority is crumbling.  Across the region, the shift to civilian rule has not solved
many of the underlying troubles that undermined their progenitors.  Deregulation, privatization and
internationalization of domestic markets have not licked rent-seeking habits, much less put regional
economies on track to sustained upward growth.

The current malaise has historic roots: the record of liberalism in Latin America.   The
combination of market economics and republican rule, far from delivering on their upbeat prophecies,
has usually resulted in polarized extremes: social upheaval against market rules or praetorian brutality.
We argue that the troubled fate of liberalism can be ascribed to the way in which the two pillars of
modern political and economic life combined.  In Latin America, the pattern of market allocation of
resources and legal equality of political subjects proved to be, not a harmonious, self-reinforcing
combination (in the idealized versions of what transpired in North America), but an explosive one. Latin
America, from independence onward followed its own idiosyncratic course, not because the new
republics did not sufficiently embrace liberal tenets, but because they did not consolidate the legal
foundations for the coexistence of market competition and political legitimacy.

Much of Latin America's turmoil can be traced to the failure of the rule of law in Latin America. 
Rather that functioning as a institutional bedrock for markets and democracy, Latin American legality is
quicksand of rent-seeking and contestation. Liberal theory concentrates attention on property rights --
defining entitlements to use or dispose of resources -- and citizenship -- some degree of political
representation.  It presupposes the existence of a legal framework capable of enforcing rights and
obligations flowing from private and public entitlements.  This is what faltered in Latin America.

Why?  In short, the independence struggles shredded the legal fabric of the ancien regime
without bequeathing the means to create alternative legal regimes.  Liberals applied free market dogmas
without inscribing an underlying juridical order capable legitimizing public authority.   Latin American
states acquired the means of violence but did not forge regimes that could impose rule without force.

The result was a prolonged period of contestation, to which elites responded by revamping
constitutional rules in favor of exclusive regimes capable of commanding only threadbare popular
support.  Citizenship was sacrificed to property.  Yet, without legitimacy, this order -- private property
without public representation --  was essentially unstable, always vulnerable to internal challenges to the
rampant inequality and perceived injustices of the status quo.

By the twentieth century, Latin America -- with important exceptions that more often proved
the general rule -- was rocking between regimes trying to unfetter market relations at the expense of
public legitimacy, and reformist efforts that intruded on market autonomy.  In effect, the legacy of the
transition to modern republicanism set the region up for an openly contested relationship between
political representation and private property.

Current neo-liberal pieties replicate the earlier liberal fallacy of trying to combine markets and
representation without the rule of law.   Reformers rushed to release markets without attention to the
institutional life which enable them to function.  They were blind to a dilemma that dogged their
precursors: bereft of public rules, wealth-seeking behavior often mutated into private rent-seeking; in
turn, market activity aggravated social inequalities.  All too often public authority was seen as a mask for
private enrichment.

This argument challenges three common claims about the failure of liberalism and the rule of law
in Latin America.  The first, "culturalist" critique, maintains that Latin America was a continent with no
liberal heritage at all, a vessel for persistent authoritarian predispositions.  A second "statist" argument
claims that omnipotent public power suffocated private initiative, market-driven growth and electoral
democracy.  Both of these arguments conveniently forget long periods of free market policies and public
commitment to liberal discourses in Latin American history.  Third, we reject the determinism of purely
external factors -- imperialism, international inequalities, or inescapable constraints of globalization --
accounting for Latin American troubles.  While facts of everyday life, they are more results than causes
of the pattern of liberal development.  All of these types of arguments tend to argue that immutable
structural factors weaken the rule of law; Latin America is genetically condemned to legal backwardness. 
We prefer a more historically and politically embedded account.

Republican origins of legal dilemmas

Modern Latin America is the birthright of the Enlightenment -- the clutch of ideas resting on
notions of legal equality of political subjects and the autonomy of the private sphere.   From their
inception, republican movements in Latin America shared the belief that the rule of law could protect
this reordering of social relations.  By the rule of law we mean general principles that all subjects,
including rulers, were beholden to the same baseline public rules; rulers and ruled obey the same rules.

But on its own, the Enlightenment was not a foundational framework for a new order, nor a
sufficient compass for a stable political community.  This did not prevent late eighteenth and early
nineteenth century proponents of change from treating it as a panacea.  Indeed, the rather exceptional
case of the triumph of republicanism in the Thirteen Colonies allowed them to idealize Enlightenment
promises.

Such lofty aspirations were almost doomed to failure.  They certainly promised disappointment. 
As Napoleon's occupation of the Iberian peninsula in 1808 cascaded into a full collapse of the Bourbon
transatlantic order, creoles had to take charge of regimes for which they were not quite prepared.  The
champions of independence presented themselves as the makers of new political communities to live up
to the same principles as those of other revolutionary societies: principally France and the United States. 
Accordingly, the language of revolution broadcast a radically new order, free of kings, liberated from
private guilds, and free from oppressive corporate privileges and obligations (like church or military
fueros, or Indian tribute payments).  In short, the notion of legal equality of political subjects in an
emerging public world for all was a cornerstone of early republican purposes. 

Across the continent, the dual principles of reform spread.  Legislators unencumbered property
rights; anyone could trade, restrictions on contractual rights vanished, status-bound obligations to elites
began to succumb.  In the same spirit, suffrage spread -- it was indeed the citoyen model and not Locke's
that creoles preferred (so property restrictions did not exist with some prominent exceptions), implying a
daring degree of universal male representation, and aligning individualism with political citizenship. 
Across the continent, constitution-talk of the 1820s proclaimed the mutually reinforcing and harmonious
logic of combining free markets with free political individualism, both now covered by principles of
modern legality.

It was, as proponents of reform soon discovered, much easier to proclaim ideals in the face of
what they did not like than to translate imagined orders into constitutional realities. As has often been
noted, the first stage of Latin American Liberalism was unable to resolve the difficult contradictions
between its two central tenets, an emphasis on individual liberty and the creation of state strong
enough to "humble any corporate groups that threatened individual liberty" .   Unlike their European
equivalents which were contemporaneously constructing liberal regimes upon state machines which
had been in the process of consolidation for a century or more, the Latin America republics needed to
assure individual liberty while also constructing an administrative and political apparatus capable of
enforcing the rule of law.  The result was an often illiberal chaos.  While the early liberals dreamed of
a constitutional government, no legitimate force appeared which could enforce the law.    Thus, for
example, while all post-independence governments recognized the principle of private property, it was
at least several decades before any of them (with the possible exception of Chile) was able to enforce
such rights.

Furthermore, creole republicans were far from likeminded about the what the republic was
supposed to resemble.  Some trumpeted centralist, unitary frameworks, even constitutional monarchies
to preserve some semblance of the old order so that the new order would not implode on itself.  Others
advocated a complete rupture, arguing that only by cleansing the community of old vices would new
virtues thrive.  Constitutional congresses came and went.  Revolution soon degenerated into civil war.
It is easy to take this account of infra-creole elite discord at face value.  But it does not exhaust
the story.  Republicanism discharged massive mobilization among subaltern sectors.   Liberalism, in
effect, was more than just a banner by which creoles could trumpet an alternative to Bourbon absolutism
and aristocratic privilege, it also which stirred the political imagination largely rural folk.  The most
dramatic (and as far as elites across the region were concerned, horrific) case was Saint Domingue, where
the principle of legal equality catalyzed a bitter war against the French and even mulatto planter class.   If
Haiti exemplified French revolutionary principles at the service of bringing down formal French rule, an
entire arc of peasant society in mainland Latin America mobilized to the tune of popular sovereignty,
freedom from onerous duties and local self-rule.  From the guerrillas of Father Morelos in Mexico to the
montonero armies of José Artigas in the River Plate, rural folk found in elements of liberalism the
possibility for realizing projects that did not easily square with the designs of more urban, elite
publicists.   Thus, constitutional discord was more than a clash of ideas among revolutionary leaders to
guide liberal communities into statehood, it was also the context for class, ethnic and racial struggles over
the meaning of community.
Disappointed republican leaders lost hope.  Their despair led them to recast earlier faiths in
political subjects' ability for self-government.  Consider Simón Bolívar's words: "The majority of the
people have been led astray by religious fanaticism and reduced by the allurements of a devouring
monarchy.  To the torch of liberty, which we have offered to America as the guide and object of our
efforts, our enemies have applied the incendiary brand of discord, of devastation, and the strong
enticement of usurped honors and fortunes for men who have been debased by the yoke of servitude and
reduced to brutishness by the doctrine of superstition."
Despair eventually led many creoles to blame their own liberated subjects for their inability to
realize the double-promise of freedom from absolutist monarchy.  Bolívar himself bemoaned Latin
Americans' "permanent infancy" and, by 1820, he advocated a temporary and benevolent dictatorship
(not, it should be added, to be confused with the praetorian sort of the post-World War II years) to tutor
the region out of its own backwardness.  "The American states need the care of paternal governments to
heal the sores and wounds of despotism and war."   By the 1850s, second-generation creole statists, from
Andrés Bello in Chile to Juan Bautista Alberdi in Argentina, advocated centralized, executive-dominated
polities to stabilize fractious republics and bring some order to fissiparous political communities. 
Alberdi, reflecting on the failures of the 1820s, once noted that "in the first cries of triumph, (liberals)
forgot a word that is less sonorous than liberty, but which represents a counterweight which keeps
liberty afoot: order."  
It was Bello's adopted home, Chile, that offered something of a political template for the new
order.  Bello, active in legal and constitutional circles in Santiago from the 1830s, advocated a
restorationist-type system, with a powerful presidency and laced through with a set of legal coda to
defend private rights.  Suffrage rights, however, took a beating: the 1833 Constitution scaled back the
franchise by posing property and literacy requirements on the vote (some of these restrictions survived
until 1970).  The system, named after its chief political architect, Diego Portales, ushered in a
comparatively long period of stability for the sinuous republic.  Indeed, from being a backwater, Chile
emerged as one of the region's most powerful countries, devastating the older and once-richer heartlands
of Bolivia and Peru in a series of wars of territorial expansion, culminating in the War of the Pacific
(1879-1883).
Brazil offered a similar example.  Political authorities in Rio de Janeiro managed to steer the
transition to independent statehood with a minimum of friction.  This at least avoided the economic
costs and social mobilization of waging a war of independence.  While a representative monarchy, the
Brazilian Empire was surprisingly open politically.  Electoral laws of 1824 and 1846 provided for
widespread suffrage rights and minimized property qualifications.  As Richard Graham has noted, it is
possible that the Brazilian Empire was technically speaking more "democratic" than the United States --
until 1881, that is.  With emancipation of Brazil's slaves on the horizon, constitutionalists recoiled at the
prospect of enfranchising new ex-slave citizens and possibly imperiling Brazil's political "stability" and
property rights.  In a stunning coup de main, the Assembly radically gutted the electoral laws.  By the
time Brazil became a republic (1889), it boasted an extremely exclusionary regime.
Across Latin America principles and practices of political equality gave way to political
inequality. Beginning with the second half of the 19th century, the pattern followed by Latin
American liberalism changed dramatically.  If the first half had been characterized by the chaos
resulting from the contradictory goals of protecting individual liberty and the establishment of
governmental authority, the second half saw the increasing abandonment of the first for the sake of
the second. In the words of Venezuelan dictator Guzman Blanco, the new ideology privileged above
anything else "order, and moral and material progress". This shift was accompanied by a practically
wholesale acceptance of liberal economic theory exemplified by the doctrines of free trade and
comparative advantage. The Latin American variation on trasformismo unified elites into new historic
blocs, solving the riddle of instability, while disassociating themselves from the integrative purpose of
early liberals.  This created the political basis for impressive market-led growth.   From 1880 (roughly) to
1910, the region registered stunning economic performance but systematically turned its back on the
challenge of legitimating local regimes.  With nuances, the Chilean and Brazilian examples replicated in
Mexico (which began restricting earlier suffrage rights in the 1830s -- revoking some of these curbs under
the Reforma), Colombia (which followed the Brazilian about face in the 1880s Regeneración) and
elsewhere.  What is more, de facto exclusions reinforced these de jure exclusions through a series of
widespread electoral practices, such as the prevalence of public voting, open fraud, even more open
patronage and clientelism, and naked violence.  All of this was supposed to ensure political stability
without fully disbanding the original guiding principles of popular sovereignty.
Our excursus into nineteenth-century Latin American history is meant to reveal three
idiosyncratic aspects of Latin America's nineteenth-century liberal legacy.  First, the breakup of Iberian
(and especially the Spanish) empires shattered the ancien régime political economies and natural law
systems without leading to an automatic liberal successor based on republican law.   The Revolutions
shattered the juridical obstacles to capitalist development and remapped the personnel of the ruling class. 
But they did not imply consensus around alternative constitutional principles.   Second, once
independent, early liberals issued a flurry of reforms designed to uphold contractual freedoms and
universal (male) rights to political representation.  But the turmoil of economic dislocation, social
militarization and political fragmentation soon plunged the early republics into civil strife.  Third, with
the exemplars of Chile and Brazil, Latin American republics inverted the flow of political movement
across the Atlantic of stabilizing market mechanisms and opening political channels.  
This last point merits some elaboration through comparison.  In North America and much of
modernizing Europe, the franchise percolated downward as the century unfolded.  With plenty of
bumps and discontinuities (and in the case of the United States a full-scale civil war) along the way, these
societies used extended suffrage to legitimize political economies.   Latin America, with very few
exceptions, reversed this order: in order to stabilize market relations and bring order to representative
systems, the political bases of regimes became less universal by the century's end.   From Porfirio Díaz's
Mexico to Julio A. Roca's Argentina, regimes were liberal economically (breaking up old, corporate
property ownership, ushering their societies into the Atlantic circulation of goods and capital, and
attentive to the needs of public institutions to promote private venture) but more conservative
politically.  In effect, regimes became more publicly exclusive as the private returns from world market
integration began to climb.  This, then, enabled local elites to claim larger shares of wealth and income
without having to face a state actively supporting public goods, never mind trying to effect some relative
material equality.
This had profound implications for the rule of law.  If the early principles of republicanism
promised to unite subjects under the shared banner of contractual and representative freedoms and
equalities, the fall-out of the revolutions uncoupled this dual mission.  By the end of the century, law was
manifestly designed to uphold private rights and freedoms, but deprived of a role of guaranteeing these
features in the public realm.  As order prevailed over liberty and as authority eclipsed freedom,
legitimacy of the public domain waned in favor of its stability.

From Contestation to Social Citizenship
If law seemed less a field for protecting liberal public principles, it did not demobilize sectors
which were excluded from republican representation.  Indeed, it came as a shock for belle époque elites
that, in the throes of first-centenary festivities (c. 1910), popular sectors raised the banner of legal
freedoms to challenge conservative rule.  In Argentina, sharecroppers denounced elite landowner power;
in Brazil syndicalists torched coffee cargoes to protest against infringements on bargaining rights; and in
Mexico, most dramatically, a cross-class alliance brought down the kleptocratic Díaz regime in the name
of restoring some semblance of constitutional propriety.
As the twentieth century unfolded, the legitimacy of the public order became a source of
criticism among the excluded, and a subject of some anxiety among "elite" reformers.  Governments
began to tinker with very modest welfare concessions, many began to disband or condemn the
exclusionary practices.  Especially in the cases of Chile, Argentina and Uruguay, some appeared to rejoin
the Atlantic drift to secular universalization of the public domain.  Some, like Brazil and Central
America, made no progress.
For the most part, these reforms, when they occurred, represented cases of too little too late. 
The more tight-fisted regimes stomped openly on demands for suffrage, open collective bargaining and
urban reform.  In Brazil, the planter political classes broke up unions, arrested neighborhood organizers
and silenced middle class demands for incorporation into a cleaner political system.   In El Salvador,
Guatemala and Nicaragua, patterns of exclusion were even more ruthless.  But in most countries,
tinkering was the prevailing rule.  By 1930, however, no Latin American country could be said to have
recalibrated the balance of universalizing private representation and protecting personal property. 
Market-driven capitalism flourished without addressing the legitimacy the legal rules governing extra-
private relations.  Indeed, the very economic success of outward-oriented development relieved pressure
on the ruling classes to alter the rules of authority: rapid growth and high-pitched investment gave elites
enough means to dispense patronage and favors to political clienteles.
But the source of the imbalance's vibrancy was also its unforeseen debility.  By the late 1920s
many had begun to wonder whether, especially as export prices began to flatten then drop, Latin
America's idiosyncratic liberal regimes might survive.  Their prescience anticipated the melt-down of
1929-1930.  Export prices crashed; international creditors called in loans.  No Latin American society
emerged from the Depression unscathed by the breakdown of gold standard internationalism.   
In spite of the current distaste for economistic explanations, it would be hard to downplay the
significance of the 1930s.  The effects of economic turmoil were as multiple as they were profound.  On
the surface, the first victims were the civilian regimes, often already suffering from acute sclerosis.  The
Argentine army sent the senile President Yrigoyen into exile; a convergence of regional movements
toppled the paulista planters from power in Rio de Janeiro; a radicalizing Liberal Party swept to office in
Colombia; and even Plutarco Calles' emerging plutocracy (no pun intended) fell, giving way to the
reformist Lázaro Cárdenas.  The early 1930s destabilized the old republican equipoise.  In few cases,
however, did the full constitutional aparata of power collapse.
Below the surface, social and economic dislocations were even more seismic.  The collapse of
export sectors intensified the grievances lurking in the previous era's bounty.   Syndicalists dusted off old
claims about union recognition, peasant seizures of estates began to climb.  In perhaps the most extreme
manifestation of export-led growth, sugar-driven Cuba, cane-workers occupied mills and fields and began
erecting sugar "soviets" and running their enterprises collectively.    In some cases, such as López
Pumarejo's "Revolution on the March" in Colombia and Lázaro Cárdenas' revival of agrarismo, regimes
openly condoned (while trying to channel) assaults on the commanding heights of the hobbled export
economies.
In the end, the combination of mobilized existing popular sectors and the emergence of new
social actors, like the industrial proletariat (now grown thanks to import substitution), finally challenged
the architectural makeup of nineteenth-century liberal constitutionalism.  By the 1940s, the earlier party
machines and state apparata were clearly unable to absorb the blows from social claims from below. 
Sergeant Fulgencio Batista, having played the role of mediator in Cuba's febrile days of revolt in 1933-34,
finally helped break decades of fraudulent exclusion: in 1940 he invited workers, peasants, and Afro-
Cuban delegates to assemble to rewrite the constitutional framework for the republic.   Getulio Vargas
began scuppering his own soft-authoritarian Estado Novo to don the mantle of friend of the Brazilian
worker -- only to have Brazil's potentates dislodge him from power.  But perhaps the most celebrated
case of this constitutional transformation propelled from below was the case of Argentina, where
Colonel Juan Perón harnessed the power of the ever more aggrieved and dynamic trade unions.  Elected
to power in February 1946 by a slender margin, Perón set about dismantling the legal pillars of the old
order and building a regime that would come to embody the quintessence of populism.
The populist arrangement -- with important nuances and variations that cannot be explored here
-- reversed the nineteenth century pattern.  If the previous century made the political arena more
exclusive while defending private property rights, populism confronted the yawning legitimacy crises of
the old model with an explicit effort to induct popular sectors back in to the public arena.
Popular incorporation was partly achieved electorally.  Perón, Vargas, Cárdenas, Batista, Arbenz
and others used the franchise and party politics to admit, or readmit popular sectors into the public
domain.  They restored the republican notion that representation was a cornerstone of the rule of law, of
resurrecting the idea that rulers and ruled should obey the same rules (of course, whether these principles
were honored is quite another matter).
Populism also heralded another channel for popular induction: using public legal authority to
create new private social rights.  Trade unions, landless peasants, and mothers had all been clamoring, not
just for formal political rights, but also for substantive social rights.  Peronist trade unions radically
shifted shopfloor property rights -- inscribed in the matrix of collective bargaining laws -- in favor of the
rank and file.  Guatemalan peasants, pressed middle-of-the-road governments to broaden the peasantry's
landholding stake, to the point of forcing the Arbenz administration to encroach on United Fruit
Company territory.    Indeed, agrarian reform became, by the 1950s and 1960s, the wedge of social
claims-making across the region.  And it was also the cause which most tested the internal stability of
populist coalitions.  Either way, it signified a high-water mark of a particular idiom of rights and
entitlements in Latin America, one in which populist champions accepted the principle that a developing
liberal regime had to address social and economic equalities in order to realize political liberalism. 
Substantive reform would induct popular sectors into the public domain while breaking down the
calcified, "feudal" obstacles to capitalism and modernity.
What made populism so remarkable was its explicit combination of political and social citizenship as the
means to rebuild republican political communities. But, form the point of view of liberalism, populist
regimes still failed to resolve the legal quandary of early independence. The Cardenas sexenio , for
example, represents one of the high points of Latin American populism.  If this sought to re-include
the masses that had been abandoned by the progressive dictatorships of the 19th century, it did so not
through the creation of a regime of citizens, but through a corporatist mechanism represented by the
government party.  The populist turn of the Mexican state was in part a response to the same
economic crises facing other Latin American countries as a result of the Depression and the increase in
labor and peasant militancy of the early 1930s.   Whatever Cardenas' ideological preferences, he, like
his continental counterparts, had to come up with a political formula which would signal the
inclusion of the masses that quite rightly had begun to question the benefits brought about by the
Revolution of 1910.
The Cardenista response to demands from below included a massive expansion of
agrarian reform, pro-labor legislation, and the nationalization of vital sectors.   But while these did
mark a break with the previous policies of exclusion, Cardenas sought to respond to the needs of the
mass of the population not through a defense of the rights of individuals, but through the
representation of their social interests within the PNR/PRM (precursors to the PRI). Moreover, many
of the most dramatic advances came thanks to the influence of the president himself using special
decrees.  While the Cardenista legacy included a remarkable political stability, this was not based on
necessarily a strong regime of laws.  Power was institutionalized through the PRI and the state
bureaucracy, and the masses were at least formally included in the development of state policy, but
this was done with little respect of formal law other than the political expediency required for the
protection of the institutional revolution.  The articulation of this popular inclusion was therefore
sensitive to the composition of the political leadership.  Under Cardenas, inclusion meant agrarian
reform, but under Aleman, it meant the consolidation of a new dominant class linked to the regime.

Authoritarian law
In retrospect, it is easy to pick apart the vulnerabilities of the populist démarche.   Despite its
inward reorientation, it did not insulate Latin American societies from international pressures.  But the
real troubles were domestic.  Populism was no more successful at recalibrating the relationship between
public representation and legitimacy with private property rights to place the republics on more stable
constitutional foundations.  In an effort to shore up the legitimacy of liberal capitalism in populist forms,
governments intruded on the sphere of private property rights.  If the belle époque liberal mold suffered
from underlying legitimacy problems, the latter-day populist reincarnation soon suffered from serious
macro-economic malaise.  And these troubles were, at heart, rooted in the failure of the revamped legal
fabric to reconcile collective conflict.
It did not take long for contemporaries to see the warning signs.  Inflation soared; balance of
payments deficits plunged; business sectors began to complain more loudly of persecution.   And when
reforming regimes had to impose austerity, mobilized sectors balked.  Populist experiments ended in
tragedy.  The assassination of Jorge Eliecer Gaitán, the ensuing bogotazo, and the restoration of
revanchist Conservative rule in Colombia anticipated the reactionary tide in the rest of the region.   In a
temporal span from the Guatemala coup in 1954 to the overthrow of Allende in 1973, populist projects
to integrate workers and peasants into a republican model, by broadening representation with
substantive rights, went down, literally, in flames.  Collective violence became a political means to
depoliticize society.  Indeed, the scale of the public carnage and violation of personal liberties can only be
understood as an effort to dismantle, forcibly, social alliances and political arrangements in formation
since the 1930s.  Authoritarian regimes aimed to dismantle the heritage of social citizenship.
On the eve of the modern authoritarian turn, Latin American societies hovered over a deep
chasm between two irreconcilable positions.  Each one presented an alternative balance of the liberal mix
between public representation and the autonomy of private property.  Each commanded polarized social
allegiances and invoked opposing discourses of rights.  There were, to be sure, efforts to build bridges, as
Kathryn Sikkink has shown in the case of Brazilian and Argentine developmentalism.    But this was a
short-lived option.  Some outliers used international rents (like oil in Venezuela after the fall of Pérez
Jiménez) to lubricate vast civilian patronage regimes.  Others thwarted the populist turn altogether and
perpetuated the old civilian exclusionary model, like Colombia, but condemned the regime to persistent
legitimation problems.  Mexico, building on its revolutionary heritage, reinforced the scaffolding of the
PRI, bracing the state to the party while using oil rents and political savvy to palliate constituencies.  Yet,
not even this archetype of hegemonic rulership could fully reconcile the divergent claims of political
participation and rights of property.  The demons of liberalism finally clashed openly in 1968.
The chasm between the populist-integrative alliance and the authoritarian-exclusive camp
widened in 1959 with the triumph of Fidel Castro's rebels.  Cuba, in fact, displayed the most concerted
shift from old republicanism, to populist incorporation, only to return to its earlier exclusive habits after
1952.  Venal civilian, and later under Batista soft-authoritarian rule (at least by comparison to what
would begin to seize Latin American societies after the Cuban Revolution) eventually devoured itself in
illegitimacy.  The populist vision embodied in the 1898 and 1933 Revolutions and the 1940 Constitution
became the opposition's rallying cry, and eventually served as the fidelista banner.   When Fidel entered
Havana, he promised a return to the spirit of constitutional integration -- and as his regime sedimented
into power, it institutionalized inclusionary policies of populism by claiming that the Party was the
totalizing expression of the entire social spectrum.  So universal was its domain that principles of
competitive elections were redundant.  In the meantime, bourgeois legal protection of personal property
rights became the emblem of what the Revolution sought to eviscerate: the rights of particulars against
the entitlements of the whole.  Castro, accordingly, used Party law to serve an entirely public purpose.
The victory of Cuban rebels hardened the resolve of other Latin American elites' determination
to prevent populism from following the same course.  As guerrilla focos proliferated, rulers could use
their presence as proof of an irreconcilable threat to bourgeois legal principles.   Ironically, this threat to
bourgeois legality prompted rulers to take a decisive turn to authoritarianism, treating the end of
elections and the unimpeachable powers of the military as the necessary costs of defending private rights. 
In dramatic fashion, propertied sectors swung Latin America to one side of the chasm.   Doing so
required unraveling the concessions made from the 1930s onward, crushing the mobilized constituencies
of populism, and expunging even the nineteenth-century pretense of even unequal public representation. 
Authoritarian rulers rejected the foundational logic of the rule of law; authoritarian law made explicit the
disjuncture between the rules of the rulers and Draconian rules for the ruled. 

Law's current impasse
Authoritarian violence aimed to exorcise the demons of populism -- even if these demons were
themselves the progeny of liberalism, efforts to reconcile the illegitimacy of constitutionalism by
combining political and social claimsmaking in the collective language of incorporation.   It had to do this
by dispensing with concerns to legitimize public rules altogether.  This is why it is important to
distinguish the exclusive patterns of the nineteenth century from contemporary models; the former
seldom rejected the aspirational aspects of nineteenth-century liberalism; the latter presented themselves
(especially in the Southern Cone) as restorers of natural orders without the pretense of using the rule of
law as a means to legitimize collective rules.
There were, however, affinities.  Both models of exclusivism trumpeted the need for market
integration.  Dictators began tearing down the populist scaffolding of social citizenship: welfare rights,
collective bargaining provisions, investment in public goods and a complex heritage of protection, fiscal
inducement and financial backing for state and para-state firms.  In the lexicon of 1970s economic
orthodoxy, economic policy aimed to remove the sources of "financial repression" and harmonize local
and international prices. 
But the similarities between the belle époque model of market integration and political exclusion
can (and have been) exaggerated.  Two important differences stand out.  The first was the latter-day
power and presence of international financial institutions which happily bankrolled the authoritarian
models (they were, after all, pretty good business for a while -- certainly considering the alarmingly low
returns to capital after 1973).  The second were the Cold War and the National Security convictions that
any surviving populist voices were nothing more than ventriloquists for Communism (which, as
Anastasio Somoza discovered to his dismay, only forced Nicaraguan elite reformers into the ranks of his
opposition).  Both differences provided contextual variables which eventually doomed the post-War
dictators.
One remarkable aspect of the authoritarian recipe was just how much a failure it was.   There
were, to be sure, some very long nightmares -- Guatemala perhaps being the most gruesome.   But on the
whole, efforts to tilt balance of public and private rights in favor of the latter eventually collapsed on
their own self-contradictions.  In spite of the rhetoric of selfless, martial dedication to the health of the
body social, rulers and their acolytes could not help but use their differential access to public power to
line their private pockets.  The very absence of checks and balances and accountability -- the thinnest
veneer of homage to principles that the same rules applied to ruled and ruler -- created an irresistible
temptation to corrupt.  In the name of freeing market forces by unfree political means, dictators
animated less profit-seeking than collusive rent-seeking.  The sheer scale of corruption still awaits its
historian.  But its most evident outward form, capital flight, became rampant by 1978-79.   This
behavior helps explain why, once in power, rulers recoiled from disabling the statist agencies which they
rhetorically condemned as the Trojan horses of populism.  They were simply too lucrative. 
Authoritarian rent-seeking galvanized, poly-class movements fed up with forced subsidies to political
insiders and the economically rich.
There were also undertows of anxiety about the non-constitutionality of military rule.   The
dictators (not unlike the vanguard creoles of the Age of Revolution) found it easier to crush what they
did not like than to nurture a new legal order.  It did not take long for infra-regime divisions over how to
restore natural hierarchies on sounder footings to surface.  Some coups were greeted with counter-coups;
others had to cope with constant internal squabbling (which, more often than not, were dealt with by
giving disgruntled plotters access to the public trough).  Under Ernesto Geisel, the Brazilian regime, not
without some hesitation, tried to synchronize an eventual return to legality under the codeword abertura
or decompression.  The Argentine generals feuded openly.  Only Pinochet managed to keep a firm lid on
internal discord while also constructing a pseudo-constitutionalist order.
If internal contradictions sapped authoritarians of their restorationist ambitions, external shifts
catalyzed their collapse.  With variations, the eruption of the debt crisis in the summer of 1982 sundered
the feeble financial structures of authoritarianism.  Then, detente across the Cold War divide with the
ascent of Gorbachev deprived rulers of their claim to be the last defense against international
Communism.  Like dominoes, the dictators fell.
What did they leave behind?  What faced civilian regimes?  We suggest three legacies.
First, many new civilian governments sought to insulate policy-makers from popular claims-
making, fearing that a return to populist forms would destabilize their hobbled regimes.   The new
democrats of the 1980s confided in the powers of technocratic solutions.  They sought to remove crucial
areas of decision making from public, never mind deliberative, arenas altogether.   So, rather than
animating notions of a rule law capable of using representation as a means to reconcile collective conflict,
new governments segmented the powers of elected authorities from the authority of tutored experts. 
This is not the same as authoritarian decision-making, though there are some continuities.   Rather, new
democrats invested in extra-political authority the powers to make choices which representative
authorities were deemed incapable making.
Second, fundamental spheres where notions of legal equality were supposed to be sanctified
remained debilitated.  This is especially true of Latin American court systems.   The glaring cases of
military amnesties and exemptions from due process only betrayed the reluctance of many new civilian
governments to rein in repressive forces.  Moreover, the mundane, day-to-day inefficacy and inequality
of judicial dispensation of rights is a reminder to Latin Americans of just how little judiciaries can be
relied upon as the trenchwork for defending even the most formal and basic of rights.
Third, Latin American economies inherited crippling debts and massive pressure to restructure,
which promise to leave entire swaths of the populace outside active market participation, whether labor
markets or consumer markets.  This not only saps elected regimes of their ability to meet social claims-
making and sows seeds for the very kind of fruit that flourished under populism, but it publicly removes
pressures on dominant classes to share the wealth which accrues upwards.   In effect, growing
inequalities sharpen the dichotomy of market-allocated rewards and a traditional discourse of social
citizenship and substantive justice.  It remains to be seen just what political forms this disjunction takes.
These three issues reveal troubled dimensions of neo-liberalism.  Neoliberals opted to withdraw
the state from market regulations without reforming institutional makeups.  Pulling the state out of
market and even public activity, without assuring an underlying legitimate system to behold rulers and
ruled to the same rules, has perverse consequences in Latin America.  It is one thing to dismantle state
intervention in Western Europe or North America, where the history of liberalism has bequeathed a
more deeply sedimented rule of law.  Deregulation and privatization do not necessarily imperil baselines
of civic equalities inscribed in legal rules and procedures.  Rolling back substantive equality provisions at
least does not scathe formal juridical equalities.  In short, it may be argued that Thatcherite reforms did
allow market forces to "work" in England (few across the political spectrum would contest this).  But it
is quite another matter to dismantle state powers in Latin America, where attacking substantive legal
provisions cripple formal and procedural equalities.  At the very least, populism sought to address formal
equalities and notions of citizenship -- by tying them to substantive provisions.   Taking down the
substantive scaffolding only reveals the cracks and holes in the walls of the formal rule of law.
This has economic and social implications.  Without baseline formal legal rules it is unclear whether
market forces have been "unleashed" at all.  It may be argued that the neoliberal language of market
efficiency and private initiative is little more than the rhetorical arsenal for tightly bound grupos to
obfuscate collusive arrangements.  Deregulation and privatization have energized rentier behavior as
much as competitive behavior.  Paradoxically, "liberalization" on its own does not stabilize and protect
private property rights, even though it transfers ownership from the public domain and vests more
collective decision-making in private hands.  This is why the issue of corruption and public scandal across
the region is so important: disclosure of dirty-dealing exposes the neoliberal hypocrisy of putatively
freeing agents from state constraint without forcing them to abide by common rules for all legal subjects.
Perhaps of greatest relevance for the concerns of this essay, despite the considerable advances in
promoting a more democratic politics, the rule of law and the accountability of the government
remains tenuous.  The personal corruption which appears in hindsight to have dominated the Salinas
sexenio is a prominent example.  The eight years of Menemismo in Argentina have seen increasing
doubts about whether members of the government are subject to the same laws as the rest of the
citizenship.  Fujimori's autogolpe, his increasing autocratic tendencies, and the ever more public role of
the military and of the mysterious Vladirmiro Montesinos cast considerable doubt on whether a state
of laws exists in that country.  The impeachment of Collor would indicate that Brazil could serve as
an exception, but the widely accepted corruption of the police forces, the considerable power of
regional political mafias, and the increasing threat to public security make it difficult to see that
country as one governed by laws.