Virtual Legality

Abstract

Authoritarian regimes in Latin America frequently expanded military court jurisdiction to prosecute political opponents and protect members of the armed forces and police engaged in repression. What happened to the military courts after the recent transitions to democracy in the region? Why did some democratic transitions produce broad reform of military justice while most did not? This article first reviews contending theoretical explanations that offer answers to these questions, comparing those answers with actual outcomes in Argentina, Brazil, Chile, and Mexico. It then argues that the “mode of transition” perspective, which attributes variation in the extent of military justice reform to the autonomy and strength of the military in the democratic transition, best explains the outcomes in these cases. However, the military's autonomy and strength should be specified. In the area of military justice, the relevant factors are the military's propagation of an accepted legal justification for past uses of military courts and the creation of congressional support for the maintenance of existing military court jurisdiction. Both of these factors are present in Brazil, Chile, and Mexico, where little or no reform of military justice took place under democratization, and absent in Argentina, where broad reform did occur.