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Forgotten Justice: Memory and the Access to Justice Program in Allende’s Chile

Marianne González Le Saux

Columbia University

Paper Prepared for delivery at the 2014 Congress of the Latin American Studies Association, Chicago, IL May 21 - 24, 2014

A Spanish version of this paper has been published as “La Justicia Olvidada: Memoria e Historia del Programa de Acceso a la Justicia durante la Unidad Popular, Chile 1970-1973”, in Juan Francisco Lobo Ed. En conquista de los derechos humanos: Homenaje a José Zalaquett Daher. (Santiago: Thompson Reuters, 2017)

When addressing the problems of “Justice” and “Memory” in twentieth-century Chile, it is difficult not to associate these two concepts with two specific historical periods: Pinochet’s dictatorship and the transition to democracy. As countless authors have shown, Justice and Memory emerged and quickly became two essential categories in the opposition to military rule and in the fight for human rights during and after the regime was over.1

However, this paper addresses a different topic, one that has attracted considerably less attention from both political actors and scholars: this is the issue of the memories associated to the role of legality and the justice system during President Salvador Allende’s Popular Unity government (1970-1973, hereinafter, “the UP”). As Peter Winn has noted recently, after four decades of trying to understand the drama of the coup d’état and the dictatorship, it is actually the UP period that has tended to be erased or “sanitized” from the collective memory.2

This affirmation could sound exaggerated if we measure it against the impressive number of works –testimonials and historical– on the Allende period.3 Still, these narratives, as Steve Stern work has shown, work selectively; they align themselves politically around

1 Irwin P. Stotzky, ed., Transition to Democracy in Latin America: The Role of the Judiciary (Boulder: Westview Press, 1993); Cath Collins, Katherine Hite, and Alfredo Joignant, eds., The Politics of Memory in Chile: From Pinochet to Bachelet, 2013; Steve J. Stern, Remembering Pinochet’s Chile: On the Eve of London, 1998 (Durham: Duke University Press, 2004); Cath Collins, Post-Transitional Justice: Human Rights Trials in Chile and El Salvador (University Park, Pa.: Pennsylvania State University Press, 2010); Brian Loveman and Elizabeth Lira, Las Ardientes Cenizas Del Olvido: Vía Chilena de Reconciliación Política 1932-1994 (Santiago, Chile: LOM : DIBAM, Dirección Bibliotecas, Archivos y Museos, 2000). 2 Peter Winn, La Revolución Chilena (Santiago, Chile: LOM Ediciones, 2013). 3 A good historiographical review on the period can be found in the Introduction of Franck Gaudichaud, Chili 1970-1973: Mille Jours qui Ébranlèrent Le Monde, Collection Des Amériques (Rennes: Presses universitaires de Rennes, 2013); and in Mario Garcés and Sebastián Leiva, Perspectivas de Análisis de La Unidad Popular: Opciones y Omisiones., Informe de Avance En El Proyecto “Los Movimientos Sociales Populares y la Izquierda Chilena en la Unidad Popular y su Respuesta Frente al Golpe de Estado de Septiembre de 1973” (Santiago, Chile: Universidad ARCIS, 2004).

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“emblematic memories,” they cluster around a certain number of themes, and they tend to leave outside the facts or events that do not fit well into the accepted versions of the story.4

This paper is a first attempt at exploring how this selectivity of memory works when it comes to considering a specific aspect of the Allende period: the relationship of the government with law and justice. As I will show, there are indeed some “emblematic memories” linked to the legality or illegality of the major UP economic policies, and there is another set of memories related to the role played by the justice system in the opposition to Allende. However, there is a third aspect in the relationship of Allende’s government to law and justice that is less known: the policies of the UP to expand the access of the popular classes to the justice system, what I will call the UP’s Access to Justice Program.

The UP developed indeed several policies aimed at dealing with a long-lasting issue in the Chilean legal system: the barriers that the popular classes encountered to solve their problems through legal means. Among these, I will consider especially two: the project to create Neighborhood Courts (“Tribunales Vecinales”) and, the reform to the public legal aid system (“Servicio Nacional Jurídico”).5

The comparison of the memories and histories of these two policies will help me to exemplify the selective construction of memory. Indeed, I show that only the Tribunales Vecinales have been remembered, while the reform to the legal aid system, the Servicio Nacional Jurídico has been forgotten. The partiality of this memory, and the reluctance some aspects of the UP’s Access to Justice Program can be explained because its history does not fit neatly in the emblematic memories of the period both on the side of the right and the left.

Indeed, the history of the UP’s Access to Justice Program, and especially the one of the Servicio Nacional Jurídico, goes against the grain of the traditional narratives of the Allende period as one of political violence and illegalities, for the right, and of revolutionary change and class struggle, for the left.

Several aspects made the Servicio Nacional Jurídico “unmemorable.” For instance, it reflected some contradictions within the UP government: it was a reformist and even to some extent conservative project whose ultimate goal was to keep the popular classes “within the law,” and in this respect it presented strong continuities with the decades prior to the UP. But it also had aspects of a radical or even revolutionary project that contested the technocratic, professional power of lawyers. The debates around this project also reflected the inconsistencies of one specific group among Allende’s opponents: the Chilean Bar Association or Colegio de Abogados. I show that besides or beyond the lawyers’ social

4 Stern, Remembering Pinochet’s Chile, 68, 132. 5 There were other policies such as the project of “Audiencias Populares” that demanded the professional courts to hold popular hearings; and a project to modifying the Labor Courts’ procedure. I did not include those for questions of space. On the “Audiencias Populares” see Jack Spence, Search for Justice: Neighborhood Courts in Allende’s Chile (Boulder, Colo: Westview Press, 1979); On the Labor Court reform, see “Mensaje que introduce el proyecto de ley modifica el Código del Trabajo y crea nuevos tribunales y cargos en la justicia del trabajo,” in Cámara de Diputados, República de Chile Boletín de Sesiones, Legislatura Extraordinaria, Sesión 18a En 2 Febrero de 1971 (Santiago, Chile, 1971), 988.

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class and political affiliation, what the Colegio was defending against the UP was also the status of the legal profession, its professional power. The lawyers who felt “victimized” by the UP defended the dictatorship. But under this new rule, the Colegio professional power was reduced almost to nil: to its great surprise, the legal profession was also, and again, on the side of the “victims.” Because in these two moments the fate of the Colegio was deeply tied to the fate of legal aid, one understand here why the whole debate around the Servicio Nacional Jurídico was best left in the shadows.

In a first part I will briefly present the emblematic memories linked to law and justice in the Allende period as a way of introducing the context in which the UP’s Access to Justice Program took place. In a second part, I deal with the contentious memories associated to the Tribunales Vecinales. I show that these were remembered because the narrative around them was able to reproduce the emblematic memories of the period. In a third section, and because here there is no memory to recuperate, I retrace the history of the forgotten Servicio Nacional Jurídico, trying to understand what aspects of this history during the UP and its denouement during the dictatorship can help us to understand the reason for its almost complete forgetting.

The sources that I used to conduct this research are still preliminary: I rely mostly on documents produced by the Chilean Bar Association General Board (“Consejo General del Colegio de Abogados”, hereinafter “the Colegio”), a scattered review of the Ministry of Justice archives, and a broad range of secondary sources that I use to understand the memories and the historiography of the period. Because my research on this topic is still in a very early stage, so are the conclusions that I draw from it.

1. Historiography and Memories of law and justice in the UP period After his famous visit to Chile in 1971, Regis Debray, the French apostle of

revolutionary struggle in Latin America noted that From top to bottom of the administrative hierarchy, from one end of the country to another, the front of the stage is occupied by an interminable legal wrangle, its terms [are] provisions of the legal code, verdicts in the lower courts, grounds for a decision, counter-charges and appeals. The key word in all these disputes […] is not Revolution, or Justice, or Liberation, or Proletariat, but Legality, the taboo term, the obsessional leitmotif, and the visible stake.6

Rather to the dismay of Debray, precisely one of the distinctive features of the “Chilean road to socialism” was its delicate balance of commitment to and tension with the notion of legality. Around this issue, two sets of memories linked to law and justice emerged in Chile during the UP and would be repeated after the coup.

First, there was the question about whether the UP would be able to implement a socialist program within the realm of the existing “bourgeois” institutions, without

6 Régis Debray, The Chilean Revolution; Conversations with Allende (New York: Pantheon Books, 1972), 13.

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violating the Chilean Constitution or breaking the law. As Debray’s quote clearly illustrates, the debates around this issue were crucial to the legitimation and de-legitimation of the UP government, both in the eyes of its supporters and of its opponents, and they would remain so in the years to come. The use of “resquicios legales” (legal technicalities) for the expropriation and requisition of industries generated heated debates at the moment, and is still discussed on both sides of the political spectrum in some legal academic circles.7 Still, important sectors of the left understood for a long time that the UP commitment to the bourgeois legality was a mere “strategic” or “tactic” device to gain power and prevent opposition.8 Later, with the fight for and then the return of democracy, increasingly the left would come to recognize and reclaim the democratic and thus “legal” aspect of the UP project.9 For the right wing (and the Christian Democrats who supported the coup) the question of legality in the UP period can be best described as one of “illegality,” a moment of lawlessness and attack on the institutions.10 In other cases, they also echo the leftist approach, depicting the UP approach to the legality as merely “tactic” and thus insincere.11

A second though related topic was the judicial system’s and especially the Supreme Court’s opposition towards the UP. In this line, two trends of memories clearly emerge. On the rightwing memories, the courts’ resistance to the UP government’s policies was depicted as a “heroic struggle” for the respect of democracy and the rule of law that was being destroyed by the actions of Allende’s Marxist program and by the masses of its followers that he could not control.12 On the left, the interpretation was similar but the value judgment was inversed: the judicial power, controlled by the right wing, was among the conservative forces that allied against Allende.13 Scholars have indeed shown how, during the UP government, the Chilean judiciary abandoned its traditional deference towards the executive power and, under the pretense of protecting the law and the Constitution, it reversed its long-lasting reluctance to engaging in “judicial activism” 7 Andrés Amunátegui Echeverría, “El Protagonismo Político Del Poder Judicial Entre Los Años 1965 Y 1973,” Revista de Derecho (Valparaíso), no. 36 (August 2011): 619–63; Alejandro Polanco, “El Difícil Camino de La Legalidad. Vigencia Y Validez de Los Resquicios Legales Y Su Aplicación En El Programa Económico de Salvador Allende, Chile, 1970-1973,” Revista Historia Y Justicia 1, no. 1 (2013): 1–31. 8 Joan E. Garcés, El Estado Y Los Problemas Tácticos En El Gobierno de Allende (México: Siglo Veintiuno Editores, 1974); Carlos Altamirano, Dialéctica de Una Derrota (México: Siglo Veintiuno Editores, 1977). 9 Katherine Hite, When the Romance Ended Leaders of the Chilean Left, 1968-1998 (New York: Columbia University Press, 2000), 179–80; Luis Corvalán, El Gobierno de Salvador Allende (Santiago, Chile: LOM Ediciones, 2003). 10 Emilio Filippi and Hernán Millas, Anatomía de Un Fracaso: La Experiencia Socialista Chilena (Santiago, Chile: Zig-Zag, 1973). 11 Mario Góngora, Ensayo Histórico Sobre La Noción de Estado En Chile, Siglos XIX Y XX (Santiago, Chile: Ediciones la Ciudad, 1981), 130–2. 12 See for instance the following blog: “Allende: La Verdad (II),” Liberalismo Sin Tregua, accessed March 31, 2014, http://lavozliberal.wordpress.com/2010/09/12/allende-la-verdad-ii/; José Piñera, Una Casa Dividida: Cómo La Violencia Política Destruyó La Democracia En Chile (Santiago, Chile: Proyecto Chile 2010, 2005); Amunátegui Echeverría, “El Protagonismo Político Del Poder Judicial Entre Los Años 1965 Y 1973”; Gonzalo Vial Correa, Salvador Allende: El Fracaso de Una Ilusión (Santiago, Chile: Universidad Finis Terrae : Centro de Estudios Bicentenario, 2005). 13 Corvalán, El Gobierno de Salvador Allende, 182, 185; Alejandra Matus Acuña, El Libro Negro de La Justicia Chilena (Santiago: Planeta, 1999), 215.

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against government actions. As a consequence, the Supreme Court’s accusation of the UP’s “violation of the rule of law” served as one of the main legitimation devices for the intervention of the military in September 11, 1973.14

Much less clear in the memories of the period is the fact that the Allende government had a program to promote the access of the popular classes to the justice system, which we can see represented in the project to create Neighborhood Courts (Tribunales Vecinales), and in the bill to reform the legal aid system (Servicio Nacional Jurídico). The idea that the UP tried to strengthen the justice system does not seem to fit very well into the more stereotypical narratives of these years because it highlights that the UP took the question of legality seriously. For the left, this would obscure the real “class” struggle behind the formal legal conflict, and for the right, recognizing that the UP had a real commitment to legality would jeopardize their whole legitimation of the coup d’état.

In what follows, I will show that in regard to this UP’s Access to Justice Program memories have been selective. While the Tribunales Vecinales have left some traces in the memories of both right and left, the Servicio Nacional Jurídico has been stripped from the record. The partiality of these narratives has to do with how much each of these projects fit or disagree with the emblematic memories of the period. Let’s turn first, then, to the Tribunales Vecinales.

2. Contentious Memories: The Tribunales Vecinales

The Tribunales Vecinales was a bill that the UP government presented to Congress in February 1971 and withdrew on April of the same year. The bill established the creation of neighborhood courts, in which the judges would be lay people elected by the community. This was clearly a “failed” and very short-lived project. However, in testimonial, journalistic, and also in historical accounts both on the side of the right and on the left wing, the conflict that surrounded the Tribunales Vecinales has somehow been remembered.

In the memories of the right wing, the Tribunales Vecinales project came to represent Allende’s attempt to implement the equivalent of Cuban revolutionary trials and summary executions, and the fall into chaos and totalitarianism. In these memories, the UP government bill to create Neighborhood Courts was also conflated with the extra-legal emergence of “popular courts” in some squatter settlements controlled by the radical leftist “Movimiento de Izquierda Revolucionaria” (MIR). Even if this was not a government project, for the UP opponents, the fact that a not legally sanctioned “popular justice” came to exist in leftist-controlled urban settlements epitomized the dangers of a Marxist government. This nightmarish vision of the Neighborhood Courts initiative was forged by the right wing at the moment in which this project was presented to Congress.15 Then, it was reinforced in the months following the coup d’état through publications aimed at 14 Lisa Hilbink, Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile (New York: Cambridge University Press, 2007), chap. 3; Julio Faúndez, Democratization, Development, and Legality: Chile, 1831-1973 (New York: Palgrave Macmillan, 2007), chap. 8 and 9. 15 Spence, Search for Justice, 45–8.

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constructing the legitimacy of the dictatorship by enumerating the evils of the UP government, and was repeated in the years to come by supporters of the military regime.16 For the right wing, this account of the UP’s Tribunales Vecinales and its (con)fusion with the MIR’s “popular courts” clearly reinforced the vision of the UP’s attack to the rule of law and the slippery-slope to a communist totalitarianism.

On the other hand, the left wing also kept a trace of the Tribunales Vecinales, but one can distinguish here two different memories. In one of the versions, the emphasis is on the moderate goals of the UP bill. For these narratives, the debate around the Tribunales Vecinales illustrates the bad faith with which Allende’s opponents worked to delegitimize a regime that was radical and progressive but in essence democratic and playing within the realm of the law. This is, in short, the memory of the sectors of the UP committed to the “institutional” road to socialism, such as the Communist Party and the Allendistas’ sectors of the Socialist Party.17

However, in other “leftist-leaning” narratives, there is actually no mention to the UP government’s Neighborhood Courts bill, only the memory of the MIR’s popular courts and their revolutionary challenge to the “bourgeois” justice system.18 It is no coincidence that these accounts come from historians who are more sympathetic to the more “revolutionary” road to socialism, the one that favored maybe not armed struggle, but at least a quicker rupture with the existing legal system. For this reason, they emphasize the autonomy of the MIR’s popular courts and do not associate their project with the UP government initiative that went in a similar direction.19

Using Steve Stern’s framework, we could say then that the Neighborhood Courts operate both for the right and for the left as a “loose memory” that readily attaches itself to “emblematic memories” of the UP.20

Of course, if we confront these memories with the history of the Tribunales Vecinales, we can begin to see how the selection in the narratives operates to create politically acceptable memories. There is in particular one brilliant study devoted to this specific topic, Jack Spence’s In Search for Justice: Neighborhood Courts in Allende’s Chile published in 1979, which allows us to make this exercise.21 16 Filippi and Millas, Anatomía de Un Fracaso: La Experiencia Socialista Chilena, chap. 9; Piñera, Una Casa Dividida: Cómo La Violencia Política Destruyó La Democracia En Chile, chap. 3; “Allende: La Verdad (II).” 17 Manuel A. Garretón, Análisis Coyuntural Y Proceso Político: Las Fases Del Conflicto En Chile, 1970-1973 (San José, Costa Rica: Editorial Universitaria Centroamericana, 1978), 34–5; Corvalán, El Gobierno de Salvador Allende, 185; Matus Acuña, El Libro Negro de La Justicia Chilena, 212. 18 Gaudichaud, Chili 1970-1973, 116; Mario Garcés, “Construyendo las poblaciones: El movimiento de pobladores durante la Unidad Popular,” in Julio Pinto Vallejos and Tomás Moulian, eds., Cuando Hicimos Historia: La Experiencia de La Unidad Popular, (Santiago, Chile: LOM Ediciones, 2005), 74–5; Sebastián Leiva and Fahra Neghme, “La Política Del Movimiento de Izquierda Revolucionaria (MIR) Durante La Unidad Popular Y Su Influencia Sobre Los Obreros Y Pobladores de Santiago” (Tesis para optar al grado de Licenciado en Educación en Historia y Geografía, Universidad de Santiago de Chile, 2000), 82, 95–7. 19 A good summary of the positions of “rupturistas” vs. “gradualistas” within the ranks of the UP in Julio Pinto, “Hacer la Revolución en Chile,” in Cuando Hicimos Historia, 9–32. 20 Stern, Remembering Pinochet’s Chile, chap. 4. 21 Spence, Search for Justice.

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Spence shows how the UP’s Tribunales Vecinales bill was inspired in a broader critique of the Chilean judicial system as being inaccessible to poor people and class-biased. Also, most judicial procedures were ineffective in dealing with the real problems encountered by the popular classes, especially the ones that took place in the growing urban squatter settlements. The UP project would be a first-step in a broader project of replacing Chile’s class-biased justice system. It would do so by developing a network of lay courts with judges elected within the community, which would be in charge of dealing with small claims that generally did not find their place in the existing justice system. The jurisdiction of these new courts was thus initially very limited –family disputes, small-claims, neighborhood conflicts- but it would empower the residents of poor neighborhoods and squatter settlements. By becoming their own judges and replacing the bourgeois and technocratic judicial establishment, the Tribunales Vecinales would thus be the first step in the construction of “popular power” within the justice system.22 And it was precisely because this project threatened so directly the established sources of power that it generated so much resistance among the right wing, the Christian Democrats, and the Judicial Power. The resistance was so strong that it ended up in the withdrawal of the bill from Congress in April 1971.23

In a parallel process, Spence shows how, especially after the UP bill failed, some urban squatter settlements with a strong MIR leadership established “popular neighborhood courts” outside the law. These were much more radical than the government project in their denial of the legitimacy of the “bourgeois justice system.” More than a complement, what they proposed was replacement of the existing judicial institutions. The UP government did not sponsor these courts.24

Spence’s work allows us to confront the memories linked to the Tribunales Vecinales with their history: his narrative, unlike the rightwing memory, not only shows the rather modest scope of the project, but it also clearly distinguishes the UP bill from the MIR-led popular courts that emerged in Santiago’s squatter settlements.

On the other hand, contrary to the two “divorced” memories of the Chilean left, it also shows the links between the UP project and the MIR-sponsored popular courts. His work allows us to stress the complementary character of the government’s institutional “revolution from above” and the more radical and popular “revolution from below.”25

3. Forgotten Justice: The “Servicio Nacional Jurídico” The Tribunales Vecinales were however not a standalone project. It was embedded in a

larger UP plan to expand the reach of law to the popular classes that was included in the UP

22 Ibid., chap. 1–2. 23 Ibid., chap. 3. 24 Ibid., 155. 25 Peter Winn, Weavers of Revolution: The Yarur Workers and the Chile’s Road to Socialism (New York: Oxford University Press, 1986).

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campaign program from its inception.26 One of these complementary policies was the project to reform the existing legal aid system, in what would be known as the bill on the Servicio Nacional Jurídico. Just like the bill on the Tribunales Vecinales this project was never implemented, and, as we will see, it also generated a heated political conflict between the UP government and its opposition represented in this case by the Colegio de Abogados (Chilean Bar Association, hereinafter “the Colegio”). However, unlike the Tribunales Vecinales, this conflict has been completely bypassed in the memories of the UP period. Not even Jack Spence who studied the problem of access to justice in Chile in the same period made reference to this initiative.27 To explain the reasons for this this erasure I retrace the history of this bill. I describe first the context for legal aid reform before 1970, then I analyze the conflicts generated by the UP bill on the Servicio Nacional Jurídico, and I finally turn to the denouement in the history of legal aid reform during the dictatorship.

Legal Aid in the Age of Reform: 1932 to 1970 From 1932 on, Chile had developed one of the largest legal aid services in Latin

America: this was the Servicio de Asistencia Judicial (hereinafter, SAJ). The SAJ had been created at the initiative of the Colegio de Abogados and was under its management, but it had increasingly obtained public funds for its administration.

In the following decades, the SAJ had expanded throughout the country, and impressively increased its caseload. However, it had some of the usual and other more unusual problems associated to all Chilean public services. First, it was underfunded and understaffed. Its employees –mostly lawyers and social workers– were seriously underpaid and overworked. Most of the work was actually performed by an unreliable and inexperienced pool of unpaid law students forced to intern in the service as a prerequisite to be admitted to the Bar. Second, the geographical expansion of the SAJ had replicated the general trend of Chile’s centralization: Santiago had the more complex and better-funded services, while the provincial offices worked under dire conditions. The unequal distribution of resources across the country and uneven quality of the legal services was reinforced because of the SAJ’s administrative organization, which lacked a national structure: each Provincial Board of the Colegio de Abogados administered its own legal aid offices.

By the 1960s, the financial, administrative, and “human resources” problems of the SAJ were reaching a critical point. And the first to highlight these problems was the SAJ administration itself: from 1960 on, the SAJ’s Directors increasingly made their concerns known to the Colegio de Abogados Board. By 1964 the SAJ Director in Santiago was describing the situation of the Service as “angustiosa” and in 1965 he warned that “it is imperious to give a different structure to the Service to prevent it from reaching a complete

26 “Primeras 40 Medidas Del Gobierno Popular” (Santiago, Chile, 1970), sec. 37, 38. 27 When making reference to the problem of legal aid, he analyzed the private initiative of the Catholic University to create a Legal Clinical Program, but he did no mention whatsoever to the government’s project on the same issue. Spence, Search for Justice, 26–32.

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crisis.”28 The problems in the Provincial offices were even worst, and this also explains why its employees went on strike in 1968 for the first time since the SAJ creation, and that same year, the Colegio Board received, with less than enthusiasm, the news that, after 30 years of “peaceful” work relations with their staff, the SAJ employees had created a union, the Sindicato Profesional de Empleados y Obreros del Servicio de Asistencia Judicial.29

The dramatic condition of legal aid services was not an internal problem anymore, but a matter of public concern. The Frei administration began to discuss plans to drastically reform the SAJ by giving to it a national structure, but did not have the time or the political impulse to carry on the needed reform.30 As the issue was still pressing, during the 1970 presidential election Radomiro Tomic, the Christian Democrat candidate, and Salvador Allende, for the Unidad Popular, both included proposals to reform legal aid in their campaign programs.31

Legal Aid in Times of Revolution: 1970-1973 That a Christian Democrat government should propose a plan for legal aid reform

seems logic. After all, legal aid is essentially a very “reformist” policy. Indeed, the concept of legal aid presupposes that the judicial system is highly complex and where citizens require the assistance of a specialized intermediary –the lawyer– to translate their claims to the system. In this regard, strengthening legal aid almost by definition implies supporting a professional and technocratic legal system that is obscure and inaccessible to lay people, and even more so, to the poor.32 Thus, unlike the more “radical” project of the Tribunales Vecinales that sought to replace the power of professional middle class magistrates by local and popular judges who would speak the language of the people, legal aid did not challenge the way in which legal power was created; it only distributed it more equally.

In this sense, explaining why the UP government –or at least the sectors of it committed to the “institutional road to socialism” – would devote energy to reform the system of legal aid requires some additional explanation.

It is known that from the end of the 1960s on, Chilean leftist parties had began to strongly criticize the class-bias of the Chilean judicial system.33 But as Allende stressed in his first address to Congress in May 21, 1971, “it is not the principle of legality that the popular movements are denouncing.” On the contrary, legality had been the result of “the

28 Consejo General del Colegio de Abogados, Memoria Anual 1964, 50; Memoria Anual 1965, 42. 29 Consejo General del Colegio de Abogados, Memoria Anual 1968, 19. 30 “Exposición del Señor Mario Mosquera sobre el Problema del Servicio de Asistencia Judicial,” 1965, ARNAD, Fondo Ministerio de Justicia, V. 28502 (Corporación de Asistencia Judicial, 1983); Instituto de Docencia e Investigación Jurídicas, Servicio Nacional Jurídico : informe recaído en la petición del Ministerio de Justicia sobre la creación del Servicio Nacional Jurídico (Valparaíso: Instituto de Docencia e Investigación Jurídicas, 1973), 124. 31 “Primeras 40 Medidas Del Gobierno Popular,” sec. 38; Comisión de Programa de la Democracia Cristiana, “El Programa Tomic,” Política Y Espíritu 25 (agosto 1970): sec. 6.7.1. 32 Richard Abel, “Law without Politics: Legal Aid under Advanced Capitalism,” UCLA Law Review 32 (1985): 474–642. 33 Faúndez, Democratization, Development, and Legality, 204.

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struggles of many generations against absolutism,” and the goal of the government was precisely to create a “new legal system” that would be responsive to “the needs of a people dedicated to build a new society.” It was absolutely clear that in the new socialist society “there would be legality [legalidad habrá].”34

José Antonio Viera-Gallo, the Deputy Minister of Justice noted in 1972 that “the law is not the main obstacle to revolution…” On the contrary, “Any domination is by definition irrational, but the domination through the law is less hateful, inhuman, and brutal than a domination that only uses force.” For this reason, “the principle of legality subsists during socialism while there is a distinction between rulers and ruled, i.e., while it is necessary to establish a regime of popular participation. Legality is a guarantee, in these new circumstances, of a non-arbitrary power and of rationality in social life, because it establishes clear rules, and any legally-relevant action should be adapted to it.”35

As we can see from these quotes, the commitment of the UP with legality was thus more than merely “strategic” or “tactic.” Important sectors in the UP really believed in the law, and the legendary commitment of the Chilean working classes to legality was something that they whished to encourage. Moreover, maintaining popular classes within legality was more important than ever before in the context of massive popular mobilizations that were increasingly resorting to extralegal and illegal means: the famous “tomas” or takeovers of industries, agrarian lands, or urban settlements that multiplied during the UP period were showing the limits of the traditional attachment of poor Chileans to the law.36 While sympathetic to the reasons behind these popular actions, the more “institutional” faction of the UP was considerably less thrilled about the means employed. Viera-Gallo clearly stressed that “not every break of the law is revolutionary.”37 This explains in part why the UP needed to promote the legal aid system and boost the delivery of legal services: it put the law at the reach of the ones who had been deprived of it, and in doing so, it helped to control the popular movement’s impulse to escape from the legal framework. And in this regard, the reform to legal aid and the Tribunales Vecinales project went hand in hand, they were both directed at giving “more law” to the Chilean popular classes.

From this perspective, there was an important degree of continuity between the UP interest in legal aid and the reasons that had prompted in the 1930s a group of reformist elite lawyers to approach the conservative populist government of Arturo Alessandri Palma to create the Servicio de Asistencia Judicial in the first place. The partnership between the Colegio de Abogados and the State to promote a robust legal aid service in the 1930s had also come after a decade of strong social mobilization in the 1920s. At that point, then, both 34 “Primer Mensaje Del Presidente Salvador Allende Al Congreso Pleno,” in Sesiones Del Congreso Nacional, 313a Legislatura Ordinaria, Sesión En 21 de Mayo de 1971 (Santiago, Chile, 1971). 35 José Antonio Viera Gallo, “El Segundo Camino Hacia El Socialismo: Aspectos Institucionales,” Cuadernos de La Realidad Nacional, Revolución y Legalidad: Problemas del Estado y el Derecho en Chile, 15 (December 1972): 160, 166, 168. 36 Winn, Weavers of Revolution, 142. 37 Viera Gallo, “El Segundo Camino Hacia El Socialismo: Aspectos Institucionales,” 175.

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the lawyers’ guild and the Chilean state shared the idea that social order would be strengthened if the popular classes could redirect their legal problems to formal institutional channels such as the courts. And for poor people to reach the courts, it was necessary to provide them with the free assistance of a lawyer, which explains the timing for the creation of the SAJ.38

To some extent, by trying to strengthen the legal aid system, the UP government was trying to achieve a very similar end. Still, stressing the continuities and the idea that this was mainly a “reformist” project should not obscure some important ruptures: what was “revolutionary” in the otherwise reformist UP agenda for restructuring legal aid was how they rethought the idea of who should control legal aid institutions. As Viera-Gallo argued, Socialism had the task of “dismounting bureaucracy allowing the broadest possible access of the masses to the centers of decision within the state.” Thus, while the old institutions subsisted, their problems would be mitigated if within the centers of power one could boost “popular participation” and diminish the professional, technocratic, bureaucratic power. In the new socialist society, “the role of lawyers should be limited to serve the people in its creative enterprise. For this to be possible, it is essential to alter the mechanisms through which law was created and applied […] We need to uphold the banner of the de-professionalization of law.”39

The Tribunales Vecinales were certainly a more complete achievement of the idea of “de-professionalization.” Yet this idea was not totally alien to the way in which the UP legal aid reform was framed. Indeed, at the end of 1971 the UP Ministry of Justice commissioned, ironically, a group of expert lawyers to draft a report on the situation of the Legal Aid Services and the alternatives of reform.40 But when all the relevant actors in the field of legal aid met in July 1972 for a two-days workshop, the opinion of the Deputy Minister of Justice was very clear: the SAJ, which until then had been controlled by the Colegio de Abogados, should now be controlled directly by the state, and within the state, representatives of the “organized masses” –union leaders and community organizations- should have the main control of legal aid.41 In this regard, the UP project of the Servicio Nacional Jurídico was radical in claiming that the popular legitimacy of the masses should rule over the professional power of the lawyers.

This rethinking of “professional power” is precisely what turned legal aid into a point of contention. And this issue helps us to explain how and why the Colegio de Abogados became one of the staunchest opponents of the UP government.

Of course, in some level it seems almost natural that an association of elite lawyers such as the Colegio de Abogados would be opposed to Salvador Allende’s “popular government.”

38 Marianne González Le Saux, “The ‘Social Function’ of Lawyers: The Chilean Legal Aid Service and the Politics of the Legal Profession, 1925-1960s” (Master Thesis, Columbia University, 2013). 39 Viera Gallo, “El Segundo Camino Hacia El Socialismo: Aspectos Institucionales,” 177. Emphasis added. 40 The task fell on a University of Chile Law School’s think thank, the Instituto de Docencia e Investigación Jurídicas, Informe sobre el Servicio Nacional Jurídico. 41 Presentation of José Antonio Viera-Gallo, Deputy Minister of Justice, in ibid., 15–7.

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And certainly, the Colegio was one of the strongholds of the right wing and the more traditional Christian Democrat sectors. Yet, here I contend that neither the lawyers’ social class nor their partisan affiliation explain by themselves why the Colegio so enthusiastically sided against the UP. The conflict between the Colegio and the UP was one on the nature of professional power, an aspect which was certainly related to class and politics but that it would be simplistic to reduce to these issues.

For instance, rather unexpectedly one can see that at the beginning of the Allende administration, the Colegio attempted to maintain –at least publicly- a collaborative position towards the government. In November 1970, they warmly congratulated the election of Allende, whished him “success” in his administration and offered “the Colegio’s ample collaboration” with the new government. The President of the Colegio, Alejandro Silva Bascuñán, very cordially met with the new authorities –the President, the Ministry and Deputy Ministry of Justice. When the Minister of Justice expressed that the SAJ needed to be reformed, and also that there was the need to reform the Colegio Boards’ elections procedure to include the “minorities” and make it more democratic, the President of the Colegio “replied that he was delighted to hear the opinions of the Minister of Justice because the Colegio shared all his proposals.”42

However, as time went by, the attitude of the Colegio became increasingly confrontational. One could attribute this shift to the growing political polarization of the country, but I argue that there are more specific reasons to explain the mounting hostility of the Colegio towards the UP. Of course the Colegio was not thrilled to see its country turn to socialism, but curiously, the explicit anti-communist rhetoric is not present in the Colegio’s discourse from 1970 to 1972. The denunciation of the “Marxist,” “communist,” or “totalitarian” Allende’s regime would only appear in their publications in 1973, and much clearly after than before the coup d’état.43

Instead, what really alarmed the Colegio during the years of 1971 and 1972 was to see that under the new government, the legitimacy of their professional power as lawyers was being contested. This was very clear in their reaction in early 1971 to the UP project of Tribunales Vecinales: the Colegio shared the conviction that local courts would improve the access to justice in the country, but the government’s idea of lay-staffed courts was a direct threat to their professional power.44 Likewise, a bitter conflict exploded related to the University of Chile Law School: the University Board had the project of subsuming the Law School in a larger “Social Science School,” where law studies would be reduced to the status of a mere department. The Colegio considered that this “will bring the desintegration of Juridical Science as an autonomous discipline” and that this “is a negation of the 42 Consejo General del Colegio de Abogados, Memoria Anual 1970 (Santiago, Chile, 1970), 16. Emphasis added. 43 Consejo General del Colegio de Abogados, Memoria Anual 1973 (Santiago, Chile, 1973), 24, 28, 29; Colegio de Abogados de Chile, Quiebra Del Estado de Derecho Durante El Régimen Marxista de Salvador Allende Y Adhesión Del Colegio de Abogados Al Nuevo Gobierno: Antecedentes (Santiago: s.n., 1973). 44 Consejo General del Colegio de Abogados, Memoria Anual 1971 (Santiago, Chile, 1971), 15; Spence, Search for Justice, 57–61.

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juridical values that are inherent to our history […] as a Nation.” Moreover, “the lack of scientific autonomy is harmful for the prestige of the legal profession.”45

But nowhere was it clearer that lawyers were “victims” of the UP government than in what they perceived as direct attacks against the judicial power. In April 1971, they energetically joined the Supreme Court in their denunciation of the takeover of the Talca Court of Appeals by UP supporters protesting against the destitution of the provincial governor (“Intendente”).46 The same happened in May 1972 with the famous takeover of the Melipilla courtroom by a group of peasants who resisted the criminal indictment of some of their comrades accused of trespassing, when the Colegio strongly confronted the government because it had refused to intervene on the side of the judge.47 The Colegio also denounced several “attacks” against some famous lawyers who represented U.S. firms or local businessmen undergoing expropriations.48 In the Colegio’s opinion, these public demonstrations deserved the harsher treatment –the application of the “Ley de Seguridad Interior del Estado”– because they qualified as “slander” and “contempt” against the judicial authority and showed disrespect against the “dignity” of the law itself.49 By August 1973, the Colegio de Abogados had compiled a long list of the UP’s breaches to the law to backup a constitutional accusation against Allende.50

It was thus not only the Supreme Court but broadly the legal profession who had become alienated against the UP.51 And with their professional legitimacy that they saw threatened, they were contributing to build what would become of the strongest legitimations of the 1973 coup d’état –the fact that the UP government was violating the rule of law.

In this escalating conflict, the question of legal aid reform was not a marginal one: it condensed what the lawyers saw as an attack to their professional power. Indeed, the Colegio de Abogados had deep vested interests in the existing legal aid service. The SAJ was the Colegio’s weak but valuable child. The Colegio had given birth to SAJ and it had managed to obtain the support of the state to keep it alive. And in doing so, it made them able to attract an important amount of resources from the state to their professional association. By the 1960s, it was not the SAJ that depended from the Colegio, but the Colegio that depended, for its survival, on the SAJ. Mario Mosquera, a Colegio Board member who was asked to submit a report on the critical situation of the SAJ in 1965, made this very clear: “every financial support to the Colegio de Abogados […] is granted on the basis of the Servicio de Asistencia Judicial […] In other words, the Colegio’s fulfillment of

45 Consejo General del Colegio de Abogados, Memoria Anual 1971, 16–9. 46 Matus Acuña, El Libro Negro de La Justicia Chilena, 211–9; Memoria Anual 1971, 10. 47 Faúndez, Democratization, Development, and Legality, 214–22; Consejo General del Colegio de Abogados, Memoria Anual 1972 (Santiago, Chile, 1972), 8–9. 48 Memoria Anual 1971, 7–12; Consejo General del Colegio de Abogados, Memoria Anual 1972, 5–10. 49 Consejo General del Colegio de Abogados, Memoria Anual 1972, 8. 50 Consejo General del Colegio de Abogados, Memoria Anual 1973, 24–7. 51 Faúndez, Democratization, Development, and Legality; On the opposition of the Supreme Court against Allende see especially Hilbink, Judges beyond Politics in Democracy and Dictatorship.

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its legal aid function is essential so that the Colegio can have the funds to subsist and to achieve properly its other goals.”52

But for the Colegio, the SAJ was not only a matter of money: in the 1960s, legal studies were undergoing a serious legitimacy crisis that questioned the ability of lawyers to contribute to a more modern and more egalitarian society.53 The Colegio’s control over legal aid showed that lawyers were not just the antiquated defenders of the 19th-century liberal order but that, as a profession, lawyers were committed to social reform.54 In this context, elite lawyers had a strong stake in maintaining the legal defense of the poor under their control.

It was for this reason that in 1965 Mosquera urged the Colegio to promote a strong reform to the legal aid system, otherwise there was the risk that “the executive power, the state will end up creating its own legal aid organization and depriving the Colegio of their control over this activity…”55

The Colegio had thus been the first to push the public agenda for a robust reform of the exhausted legal aid system. They agreed that the Service needed to be given a national structure to tackle its administrative inefficiencies and the unevenness of legal services throughout the country. However, when the UP came up with the Servicio Nacional Jurídico project, the Colegio was outraged. As we saw, this project precisely entailed taking the legal aid system from the control of the Colegio and putting it under the direct control of the state. Concretely, a Board would establish the general guidelines of the Service. In this Board, there would be representatives from the Law Schools, from the Ministry of Justice, and from the Colegio de Abogados, but also from the main workers’ and peasants’ unions, from the Juntas de Vecinos (neighborhood boards) and from the Centros de Madres (local women’s associations). 56

This structure left the Colegio with no real control over legal aid, and certainly, not over its resources, an arrangement that they opposed. They “considered that the defense of the poor will suffer if the Service abandons the Colegio’s tuition because only the Colegio is technically and ethically qualified to perform this sort of control.” They also feared that because it depended from the Ministry of Justice, the new service would be vulnerable to the “political manipulation” of the government [obraría bajo la presión de la politiquería].57

52 “Exposición del Señor Mario Mosquera sobre el Problema del Servicio de Asistencia Judicial,” 1965. 53 Steven Lowenstein, Lawyers, Legal Education, and Development: An Examination of the Process of Reform in Chile (New York: International Legal Center, 1970); Íñigo De la Maza, “Lawyers: From the State to the Market” (Master Thesis, Standford Law School, 2001). 54 González Le Saux, “The ‘Social Function’ of Lawyers.” 55 “Exposición del Señor Mario Mosquera sobre el Problema del Servicio de Asistencia Judicial,” 1965. 56 Presentation of José Antonio Viera-Gallo, Deputy Minister of Justice, in Instituto de Docencia e Investigación Jurídicas, Informe sobre el Servicio Nacional Jurídico, 15–7. 57 Consejo General del Colegio de Abogados, Memoria Anual 1972, 23, 26; In the same sense, see the interventions of Alejandro Silva Bascuñán and Jaime Silva Silva, two Colegio Board members, in Instituto de Docencia e Investigación Jurídicas, Informe sobre el Servicio Nacional Jurídico.

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And to some extent, the Colegio’s fears were not completely unfounded. The UP clearly perceived the reform to legal aid as a political tool that would allow them to weaken its opponents and attract new supporters. This becomes clearer by pointing out the moment when the government decided to present its bill on the Servicio Nacional Jurídico to Congress. It was on October 18th, 1972.58 The date might seem surprising: it was precisely in the middle of the infamous “Huelga de Octubre,” a devastating strike of employers, truck drivers, and professionals sponsored by the US against the UP, which paralyzed the country for weeks. Thus, it might seem strange that the government should be worrying about legal aid in the middle of one the largest economic, political, and social crisis of its history. But there was certain rationality to it.

Indeed, the Colegio de Abogados –together with all the major professional associations of the country– was an active organizer of the Confederation of Professional Associations that supported the October Strike against Allende.59 The bill on the Servicio Nacional Jurídico presented just at this point was a move to weaken the Colegio by depriving it from the public resources they obtained from managing SAJ.

Yet, it was also a way of attracting new supporters among the professional middle class. Indeed, two months before the October strike, at the end of August 1972, the SAJ unions who represented the legal aid employees from the South of the country had gone on strike protesting their untenable salary and working conditions. Their employer was the Colegio de Abogados Provincial Board. As it turned out, the SAJ union’s strike had actually been initiated in order to support, if not directly encouraged by, the Ministry of Justice. According to the Colegio, the Minister had apparently met with the union leaders, explaining to them that their working conditions would only improve if they sided with the government in supporting the separation of the SAJ from the control of the Colegio.60 By the end of September 1972, they were still on strike, and they were asking for the direct intervention of President Allende.61

The October strike began just at this point. And in this context, the government needed to show that there were some sectors among the professional middle class –in this case, the lawyers and social workers of the SAJ– who were actually on their side. To guarantee their support, they presented the bill on the Servicio Nacional Jurídico on October 18th, 1972, which was supposed to answer the claims of the SAJ employees.62 On the same line, on October 24th, 1972, the government presented a second bill to Congress intended to modify 58 Cámara de Diputados, República de Chile, “Mensaje Que Introduce El Proyecto de Ley Que Crea El Servicio Nacional Jurídico,” in Boletín de Sesiones, Legislatura Extraordinaria, Sesión 9a, 18 Octubre 1972, 1972, 429. 59 Consejo General del Colegio de Abogados, Memoria Anual 1972, 10–2. 60 Consejo General del Colegio de Abogados, Memoria Anual 1971, 10. 61 Telegrama de 27 de septiembre de 1972 de la Asociación de 24 consultorios jurídicos gratuitos de las Provincias de Concepción, Arauco y Bío-Bío al Presidente Salvador Allende, in ARNAD, Fondo Ministerio de Justicia, Volumen 13948, Oficios 1972. 62 Oficio No 01965 del Ministro de Justicia, Jorge Tapia Valdés de 31 de octubre de 1972 en respuesta a la Asamblea de Funcionarios de 24 Consultorios Jurídicos de las Provincias de Concepción, Arauco, y Bío-Bío, ibid.

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the system of elections to the Colegio Board. The goal was to make the Colegio Board more “democratic” by giving a representation to the “minority” sectors. This was a project that the Colegio had been promoting for several years already.63 But at that moment, the government move was obviously aimed at having representatives of leftist lawyers in the Colegio Board. The urgency of disarming the Colegio’s opposition and giving power to their few supporters among the legal profession appeared clearly in that the bill established that new elections should be hold just 30 days after the passage of the bill.64

In sum, in its strategy to dealing with legal aid reform, the UP government maneuvered around the problem of having challenged the legitimacy of “professionalism” but still wanting to attract to its cause the support of the professional middle class.

In May 1973, the project of the Servicio Nacional Jurídico resurged again in the government agenda: the President requested from Congress an expedite discussion (“urgencia”) of the bill, though this request was withdrawn on the following day, probably because at that point the government realized that the Colegio had been able to mobilize the support of the majority of Congress –Christian Democrats and right wing– against the project.65 The Servicio Nacional Jurídico bill would then sit in a hostile Congress, together with hundreds of other projects of laws that waited to be discussed, until September 11th, 1973, when the doors of Congress would be closed, and would remain so for the next 17 years.

Legal Aid under Counterrevolution: 1973-1981

That the UP had had a plan to expand access to justice is already a curious piece of information. But what might come as a real surprise is to learn that while the dictatorship was massively violating human rights, disregarding due process of law, and with the support of the Supreme Court, denying any judicial protection against these violations, at the same time, the same military regime was studying the best ways of broadening the access to courts by considering the long overdue reform to the legal aid system.

Indeed, on October 1973 –less than a month after the coup d’état–, Alejandro Silva Bascuñán, the President of the Colegio de Abogados, met with the Junta-appointed Minister of Justice to discuss the reforms to the SAJ and also the creation of “tribunales vecinales letrados,” i.e., of professional neighborhood courts.66 The new Minister of Justice actually commissioned again a report to the same University of Chile’s think thank that 63 Consejo General del Colegio de Abogados, Memoria Anual 1970, 8, 16. 64 “Mensaje Que Introduce El Proyecto de Ley Que Establece Normas Relativas a La Elección de Consejeros Del Colegio de Abogados,” in Cámara de Diputados, República de Chile, Boletín de Sesiones, Legislatura Extraordinaria, Sesión 10a En 24 Octubre de 1972 (Santiago, Chile, 1972), 488. 65 “Oficio Del Presidente de La República Que Introduce Urgencia Al Proyecto de Ley Que Crea El Servicio Nacional Jurídico,” in Cámara de Diputados, República de Chile, Boletín de Sesiones, Legislatura Ordinaria, Sesión 2a, 29 Mayo 1973, 1973, 33; Cámara de Diputados, República de Chile, “Oficio Del Presidente de La República Que Retira Urgencia Al Proyecto de Ley Que Crea El Servicio Nacional Jurídico,” in Boletín de Sesiones, Legislatura Ordinaria, Sesión 3a, 30 Mayo 1973, 1973, 33; Consejo General del Colegio de Abogados, Memoria Anual 1973, 15. 66 Consejo General del Colegio de Abogados, Memoria Anual 1973, 15.

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Allende’s government had resorted to, probably now depurated of its more progressive members.67

The Colegio de Abogados was finally breathing at ease in the new regime: they sincerely believed that, while a rupture in the country’s long constitutional tradition was unfortunate, this was actually the only outcome able to guarantee the return to order and the mistreated rule of law.68 They were also convinced that their “brave” resistance to the UP and their faithful support to the new military regime would assure them a good treatment from the new authorities, especially in what concerned a possible reform to the SAJ. They thought that the dictatorship would prove supportive of a plan of robust reform but they would not dare deprive them from its administration.69 In the following years, they came to see that both calculations proved to be wrong.

Alejandro Silva Bascuñán, the Colegio President from 1965 to 1974, was appointed by the military Junta to the Commission to draft a new Constitution for Chile (Comisión de Estudios de la Nueva Constitución). In this Commission, when discussing in 1974 the provisions on the right to Access to Justice, he made sure to prevent that the new Constitution would establish a system of legal aid contrary to the Colegio interests. He promoted the adoption of a language that established that it was for “the law to establish the means to provide legal assistance,” leaving the options open for a public or private administration of the service. This, he thought, would leave the door open for the Colegio de Abogados to keep its control over the institution while the government was deciding the plans for the long-awaited reform.70

In the following years, however, the Junta seemed to have decanted from its initial impulse. The project of professional neighborhood courts was never implemented. And the future of the SAJ remained uncertain, the Colegio still struggling every year to obtain the necessary funding from the state to support the service.71

The ironic denouement in the history of the SAJ came finally in 1981 when the Junta passed a decree-law that deprived the Colegio de Abogados from the SAJ management.72 In a way, then, the dictatorship ended up doing partially what the Allende government attempted to achieve. And it did it for similar reasons: at that point, the Colegio de Abogados had become increasingly critical of the regime, and the dictatorship took the SAJ from the hands of the Colegio as a way of weakening one of its opponents.

67 Boletín Del Instituto de Docencia e Investigación Jurídicas, vol. 30–31, Los Tribunales Comunales Letrados (Santiago, Chile, 1975). 68 Colegio de Abogados de Chile, Quiebra Del Estado de Derecho Durante El Régimen Marxista de Salvador Allende Y Adhesión Del Colegio de Abogados Al Nuevo Gobierno. 69 Consejo General del Colegio de Abogados, Memoria Anual 1973, 15. 70 Benito Mauriz Aymerich, “Asistencia Legal y la Constitución Política del Estado,” in Benito Mauriz Aymerich and Pablo Alonso Martínez, Asistencia Legal En Chile (Santiago, Chile: Departamento de Práctica y Asistencia Legal, Escuela de Derecho, Universidad Católica, 1978), 45–52. 71 See for instance Consejo General del Colegio de Abogados, Actas de Sesiones 1974, Sesión en 22 de Julio de 1974; Actas de Sesiones 1975, Sesión en 6 de Septiembre de 1975. 72 Junta de Gobierno de Chile, Ley 17995 que concede personalidad jurídica a los Servicios de Asistencia Judicial de las regiones que se indican en las regiones que se señalan, 1981.

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Indeed, in 1978 Alejandro Silva Bascuñán had resigned the Comisión de Estudios de la Nueva Constitución and become part of the “Grupo de los 24,” a politically heterogeneous group of intellectuals, mostly constitutionalist lawyers, who met to discuss an alternative constitutional and political order to the one being crafted by the dictatorship.73 Also, the increasing number of denunciations of human rights violation that the Colegio had openly ignored at the beginning as “tergiversations” and “calumnies” against the new authorities could not be denied anymore. Many of the lawyers participating in the defense of human rights managed to make their views heard in the Colegio, and the association was growing more and more uncomfortable with the position of defending a regime where the rule of law for which they had allegedly been fighting, was being openly disregarded.74

Most of all, the Colegio de Abogados, together with all the other professional associations who had fiercely resisted the UP were now again joining arms, but this time against the dictatorship’s plan of neoliberalization that threatened the power of all professional associations. Indeed, the new 1980 Constitution that established a model of a “minimal state” had no place anymore for strong corporate associations that drew resources and privileges from the state.75 The article 19 Nº 5 of the new Constitution turned the affiliation to professional associations into a voluntary decision: this amounted to deprive professional associations of any formal public role, and reduced them to the status of mere private organizations. The Decree Law 3.621 of 1981 formalized this situation. The Colegio and the rest of the professional associations protested, but within the dictatorship that they had contributed to install, their resistance was to no avail.76

The Colegio de Abogados, probably the strongest among the professional corporations, was the one that suffered the most from this new turn of events. This new standing precisely implied that it could not keep fulfilling a public function with state funding, such as administering the legal aid service, and as a result, the SAJ was finally separated from the Colegio on May 8th, 1981. Other than that, the dictatorship did not attempt any substantive reform to the service that would have improved its efficiency. In the new scheme, it was now to be administered by two Corporations, regionally divided, directly

dependent from the Ministry of Justice, and each directed by its own Board. As such, the long-desired national structure that would have given more uniformity to the Service was not attained. Needless to say, in this Board there was no representation of the “organized

73 Eugenio Ortega Frei, Historia de Una Alianza: El Partido Socialista de Chile Y El Partido Demócrata Cristiano, 1973-1988, Tesis Para Optar Al Grado de Licenciado En Historia, PUC (Santiago, Chile: CED- CESOC, 1992). 74 Denunciations of human rights violations reached the Colegio from 1973 onwards, and one can see in the Actas de Sesiones of the Colegio the gradual shift towards, first, an acknowledgement of the problem, and then, towards a condemnation of these violations. But this is the topic for another paper. See Consejo General del Colegio de Abogados, Actas de Sesiones, 1973-1988. 75 Adolfo Ibáñez Santa María, Herido En El Ala: Estado, Oligarquías, Y Subdesarrollo Chile 1924-1960 (Santiago de Chile: Edit. Biblioteca Americana, Universidad Andrés Bello, 2003). 76 See Consejo General del Colegio de Abogados, Actas de Sesiones, 1980 and 1981.

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masses.” Even more, there was no formal representation of the Colegio either, only the government, the Law Schools, and “two private lawyers.”77

At this moment, however, the Colegio –and everybody else- “forgot” to notice that it was the dictatorship that they had so enthusiastically supported in its beginnings, which had finally made real what appeared as one of their most terrible nightmare under the UP: the taking away of legal aid from the Colegio, and even more radically, the total deprivation of power of their professional association.

4. Conclusions I have argued that the UP’s commitment to legality is best explained through the fact

that this government attempted to expand the reach of the justice system to the popular classes. However, related to this point, there have been only marginal and partial memories.

The Tribunales Vecinales appear in some narratives because, seen as a standalone project, sometimes connected and sometimes disconnected from the MIR popular courts, they match quite well with some emblematic memories of the UP: they were “revolutionary enough” to generate fear in the right and pride in the left. They can also work, in some more reformist sectors of the left, to show the absurd and unfair opposition that the Allende government encountered from an elitist and paranoid right wing.

On the other hand the struggles surrounding the Servicio Nacional Jurídico have been forgotten, precisely because its history fits less comfortably in the emblematic memories of the period. What is that thus that this history shows that is better forgotten?

First, it highlights that the Popular Unity was strongly committed to a project of “expanding legality” to the popular classes. The UP Ministry of Justice was convinced that the popular classes needed “more” and not “less” law, and this implied not only the creation of a new “popular” justice such as in the Tribunales Vecinales but also the expansion of the existing “professional” ones such as in the reform to legal aid.

The reformism of the Servicio Nacional Jurídico does not make this project especially memorable to the left. It is even less comfortable to point out that it exemplifies quite well the impulse of the UP government to contain the spontaneity and increasing “extra-legality” of the popular movement, in greater continuity with the conservative reformism of the 1930s. Even more for the right wing, linking the UP to an expansion of legality instead of its destruction would disarm their rationalization of the dictatorship based on the primacy of illegality during Allende’s government.

At the same time, the more “revolutionary” aspect of the Servicio Nacional Jurídico –its challenge to the professional power of lawyers– highlights the complexity of the

77 Junta de Gobierno de Chile, Ley 17995 Que Concede Personalidad Jurídica a Los Servicios de Asistencia Judicial de Las Regiones Que Se Indican En Las Regiones Que Se Señalan; Ministerio de Justicia, Subsecretaría de Justicia, Decreto Con Fuerza de Ley 994 de 21 de Septiembre de 1981 Que Aprueba Estatutos Por Los Cuales Se Regirá La Corporación de Asistencia Judicial de La Región Del Bío-Bío, 1981; Decreto Con Fuerza de Ley 995 de 21 de Septiembre de 1981 Que Aprueba Estatutos Por Los Cuales Se Regirá La Corporación de Asistencia Judicial de La Región Metropolitana de Santiago, 1981.

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conflicts that emerged during this period, which were not only framed in terms of social class or partisan affiliation. Indeed, the history of the Servicio Nacional Jurídico tells us also an interesting story about Allende’s government and its opposition.

On the one hand, it illuminates that the “battle of Chile” was not only a fight for the redistribution of wealth, but also one for the redistribution of knowledge. It implied a contestation of the basis of the technocratic professional power, but this challenge was being led by a government of professionals who longed for the support of other professionals.

On the other hand, it shows how the Colegio de Abogados who fiercely opposed the UP because it was threatening its professional power, ended up turning against the dictatorship for doing almost the same, but this time, with no chance of resistance. The Colegio de Abogados, whose history of power and influence in the Chilean state had been tied to their links to legal aid, became little more than an insignificant private club once it lost the control over the defense of the poor. Of course, by doing this, the military regime did not pretend to question the basis of technocratic power, much on the contrary. But it went against one of the solid basis of political power and social legitimation that the legal profession had built over the 20th century. Lawyers, as a professional body, would never be that powerful again.78

That lawyers fought the UP not only to defend their “class privileges” but also to defend their professional status should not be considered as a redundant statement. The best proof of this is that, precisely as professionals, lawyers would become one of the unexpected “victims” of the dictatorship. And alongside them and even more in the shadows were all the poor and working class Chileans who, still depending from an unsatisfactory legal aid system and facing a hostile judiciary were deprived from the protection of the law, maybe to an extent that they had not known before.

78 De la Maza, “Lawyers: From the State to the Market.”

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Works Cited Primary Sources Archivo Nacional de la Administración del Estado (ARNAD). Fondo Ministerio de Justicia.

Volumen 13948 (Oficios 1972); ———. Fondo Ministerio de Justicia. Volumen 28502 (Corporación de Asistencia Judicial,

1983). Cámara de Diputados, República de Chile. “Mensaje Que Introduce El Proyecto de Ley

Modifica El Código Del Trabajo Y Crea Nuevos Tribunales Y Cargos En La Justicia Del Trabajo.” In Boletín de Sesiones, Legislatura Extraordinaria, Sesión 18a En 2 Febrero de 1971, 988. Santiago, Chile, 1971.

———. “Mensaje Que Introduce El Proyecto de Ley Que Crea El Servicio Nacional Jurídico.” In Boletín de Sesiones, Legislatura Extraordinaria, Sesión 9a, 18 Octubre 1972, 429, 1972.

———. “Mensaje Que Introduce El Proyecto de Ley Que Establece Normas Relativas a La Elección de Consejeros Del Colegio de Abogados.” In Boletín de Sesiones, Legislatura Extraordinaria, Sesión 10a En 24 Octubre de 1972, 488. Santiago, Chile, 1972.

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