Critical legal theory situated: the work of Eduardo Novoa Monreal as the legal adviser of Salvador Allende
by Fabia Fernandes Carvalho and João Roriz
Published on 20 December 2023
Ahora, después de haber tenido la singular experiencia de asesorar jurídicamente en Chile la frustrada tentativa de transformar su sociedad burguesa tradicional en una sociedad orientada al socialismo, sin quebrantar los marcos institucionales precedentes y respetando los lineamientos de la legislación vigente, hemos podido apreciar más cabalmente lo que el Derecho significa como rémora y como obstáculo para el cambio social. Esa experiencia nos ha animado a este ensayo, en el que tratamos de desarrollar en forma más completa, coordinada y sistemática las reflexiones que en una mente atenta a los requerimientos del avance social y de las nuevas tendencias político-económicas provocan los efectos obstructivos de un Derecho ineficaz, sobrepasado y obsoleto. Eduardo Novoa Monreal, El Derecho como Obstáculo al Cambio Social, México: Siglo Veintiuno
Editores, 16.ed., 2007, p. 14.[1]
In 1973, a jurist was preparing the legal defence of his small Third World country against one of the largest multinationals of that time. The case involved the nationalisation of the copper industry in Chile. If Cuba encouraged socialism through revolution and arms, Salvador Allende’s Chile (1970-1973) promised socialism through democracy and economic reforms. The nationalisation of copper—Chile’s leading natural resource—was at the heart of Allende’s vision of a new utopia.
The strife would take place in an arbitration court in Paris. The legal mind behind Chile’s defence was Eduardo Novoa Monreal (1906-2006). Although trained as a criminal lawyer, he rapidly mastered international legal arguments to build up Chile’s case. He would confront a team of international lawyers from the Kennecott Copper Corporation that formulated arguments on foreign investment protection, property rights and large compensations.
The legal battle promised to be fierce, but it did not happen. The coup d’état on 11 September 1973 ended the experiment of socialism through democracy. The military dictatorship under Augusto Pinochet combined state repression with economic neoliberalism and welcomed foreign money and companies. Many of Allende’s closest collaborators were tortured, killed, or exiled, and this could have been Novoa Monreal’s fate if he had not been in Paris preparing the legal case. It took him 14 years to return to his country, and he developed many of his international legal arguments in exile.
This contribution aims to present Novoa Monreal’s critical legal thinking briefly. His theses, advanced from the 1970s onwards, in Cristián Villalonga’s opinion, would be more than argumentative tactics: they should be understood as a critical theory of law itself. In addition to being little known in mainstream legal academia in Latin America, his ideas still need to be discovered in the Anglo-Saxon academic context since the author published his articles and books in Spanish. Before the emergence of the LatCrit movement in the 1990s and the Critical Legal Studies in the 1970s, both in the United States, Latin American jurists such as Novoa Monreal had already articulated a robust critical sensibility about the transformative possibilities of the legal field in our region. We would like to take the opportunity during the 50th anniversary of the military coup to revisit one of Chile’s foremost critical legal thinkers during that time.
From criminal law to legal socialism
Read as a whole, Novoa Monreal’s texts—especially those from the 1970s onwards that were written in a politically unstable and socially vibrant time in Chile and Latin America—reflect an anxiety about the relationship between law and social change, or more specifically, about the ways in which law and legal practitioners can be both an obstacle to and a driver of transformations in society. Novoa Monreal’s writings have an ethics of engagement and an aesthetic of persuasion as if we were constantly reminded that his treatment of law is not detached from reality and that if it were, it would become part of the problem. His legal arguments are not limited to understanding the law and legal issues but to questioning the discipline when there are impediments to realising social justice.
At a time in Latin America when utopian options seemed within reach, Novoa Monreal’s texts were constantly concerned with the role of the jurist in times of political and social enthusiasm. His writings questioned the difficulty of traditional and technical law in facing structural causes such as poverty and imperialism and called on legal practitioners to assume leading roles. If philosophers, economists, social scientists, and other professionals could contribute to a fairer society, jurists also should.
Novoa Monreal’s intellectual production is situated in his time. The thematic boundary of his academic work before and after his participation in Allende’s government is notable. Almost all of his publications before the 1970s focused on criminal law, a field in which Novoa Monreal became a reference both in Chile and later in the region. He was one of the leading promoters and members of the drafting committee of the Penal Code for Latin America, an initiative to harmonise Latin American criminal law. Between 1963 and 1971, he was the executive secretary of that commission. In addition to being an academic, Novoa Montreal exercised most of his professional activity as a lawyer at the Consejo de Defensa del Estado, responsible for advising, defending, and representing the Chilean state in judicial and extrajudicial actions. He joined the body in 1937 and became its president in 1970.
Novoa Monreal became close to Salvador Allende during his 1964 presidential campaign, Allende’s third run and the last before his definitive victory. As a politically engaged jurist, Novoa Monreal mentioned the need to review property rights and the concept of acquired rights, so they do not remain a refuge only for the privileged. After aligning with Allende’s campaign, Novoa Monreal became one of the prominent jurists of the Unidad Popular.
When Salvador Allende arrived at La Moneda in November 1970, he asked Novoa Monreal to seek legal arguments capable of substantiating his program of economic reforms. In addition to being the principal drafter of the constitutional text for the nationalisation of copper, the jurist also held a series of strategic positions in the socialist administration, such as the Compañía de Teléfonos de Chile, the Comisión Chilena de Energía Nuclear, and the Comisión Jurídica del Cobre. These were intense years of contribution to the Allende administration.
Critical Legal Thinking in Novoa Monreal
The experience of being part of a democratically elected government that promised socialism, which was later violently removed from power by an authoritarian regime, certainly impacted Novoa Monreal. After the 11 September coup, his writings became even more directly engaged with law’s relation to social change. From a few sparse articles published on non-criminal topics, he wrote more general books that proposed a critical rethinking of law, such as those published in 1975 and 1985. Other books dealt with more specific topics, such as nationalisation projects—see as example the publications of 1972 and 1976—and the social role of the university in Latin America.
In his book Law as an Obstacle to Social Change (1975), the Chilean jurist criticised the law for not keeping up with the realities of Latin America and their demands. His complaint was not intrinsic to law but to particular perspectives and specific uses, especially to what he called the European liberal-individualist tradition. His criticism was directed at the use of law from there, Europe, imported to be used here, thus hindering social transformations. In Novoa Monreal’s thinking, the law has an instrumental relationship with social reality and, therefore, can be fair or unfair depending on its context, uses and objectives. In an unequal society, the law must adjust to the concrete project of social life that animates each specific society at a given historical moment. Obsolete law and conservative jurists would be part of the problem in this setting.
Novoa Monreal’s encounter with the socialism of the Chilean experience left marks on his thinking. He portrayed the judiciary in Chile as some sort of a ‘justice of classes’. The judges, especially those from the high courts, were biased in favour of the economic elite. Their legal interpretation was not disassociated from their class. Quite the contrary: they resulted from it. Considering a teleological assumption of law as a political project, he separated bourgeois law, based on the liberalism and individualism characteristic of the capitalist system, and centred on the notions of legal security, vested rights and the exercise of free and autonomous will, from another idea of the legal discipline that is more attuned to structural social transformations.
On the one hand, Novoa Monreal focused his criticism on the liberal-individualist aspect of the law. On the other, he did not conclude (as some Marxist authors do) for completely discarding law as an instrument of social action. He looked for ways to direct law to social justice and how jurists could operationalise it in this direction. Notably, he positioned state reforms as a source of social and economic organisation, prioritising the general interest over private ones and advancing the social rights agenda. He did not deny the right to property altogether. Still, given the economic reality in Chile and the need to use its natural resources for its development, such a right would be secondary. For Novoa Monreal, progressive jurists must recognise the transitory role of law within a scenario that demands more profound economic, political, and social changes and support them.
Engaging international law: The legal defence of Chile in the context of the nationalisation of copper
An integral part of the political project referred to as via Chilena hacia el socialismo, the project for the nationalisation of copper in Chile was carried out with full attention to its legal aspects, that is, seeking legal justifications to affirm its adequacy in the broader context of the social, political and economic transformation project pursued by the Unidad Popular government. Novoa Monreal justified the nationalisation of copper in Chile because its exploitation in the country had not brought wealth to Chile. However, it had been very lucrative for foreign companies. The country was the first copper producer in the world at the end of the 19th century, and its reserves corresponded to 20% of the world’s total in 1970, although much of its wealth did not stay in Chile. Novoa Monreal pointed out the importance of copper for the Chilean economy and the problems of such a strategic sector of the national economy being handed over to foreign companies. For the Chilean jurist, the project of nationalisation of copper would correspond to a fundamental and essential measure so that Chile could leave behind a condition of dependence and underdevelopment.
On 11 June 1971, the Congress of Chile unanimously voted for the nationalisation of copper through a constitutional reform. It was justified based on the national interest and the exercise of the sovereign and inalienable right of the Chilean state to dispose of its wealth and natural resources freely. The same constitutional legislation established what would be a proper compensation in its provisions.
Debates about the legality of the nationalisation of Chilean copper were not limited to constitutional arguments in that country’s parliament. In accounting for the possible options to defend their interests, US multinationals extracting copper in the country resorted to international law to support their positions and took their demands to foreign courts. According to a document produced by the Kennecott Copper Corporation in 1971, customary minimum international standards would require that all foreign property appropriated by other states be fairly compensated. The US notion of ‘fair compensation’ would be ‘prompt, adequate, and effective in its payment and which reflects the “going concern” value of the assets taken’.
In Paris, the Chilean response had also to go through international law, and Novoa Monreal was tasked with formulating it. After the coup, and already in exile, the Chilean jurist published a series of texts in which he positioned the demands and defence of Chile based on international legal arguments, texts that probably made up part of his legal pieces in defence of the Chilean state. Notably, Novoa Monreal’s professional and intellectual productions became interrelated, reinforcing his understanding of a situated international law. Thus, international legal norms, practices and institutions began to be addressed in his publications, such as Nacionalización y recuperación de recursos naturales ante la ley internacional (1974), Defensa de las nacionalizaciones ante tribunales extranjeros: caso de los productos exportados (1976) and La nacionalización del petróleo en Venezuela (1979).
In his 1974 book, the international law arguments assembled by Novoa Monreal contributed to the debate among international lawyers and to locating Chile’ specificities, its context, and the objectives of Allende’s socialist administration. How did Novoa Monreal articulate Chile’s defence using international law? In essence, the legal foundation of nationalisation was derived from the sovereign power of the state to freely adopt within its territory all measures required for the development, well-being and progress of the human community that it governed. In Novoa Monreal’s politics of re-description, he framed the debate as an issue regarding state sovereignty over natural resources instead of a matter of contractual practice between two commercial parties. The dispute settlement would be resolved around the issue of nationalisation.
For the Chilean jurist, the 1945 Charter of the United Nations crystallised the sovereign power of states. Accordingly, each state should have the right to decide the economic and social system concerning its territory. In other words, to be sovereign means to organise oneself economically. It is for the state to choose the regime of ownership and remittance of profits in force in its territory, which also becomes mandatory for foreigners residing there. If a state decides that an industrial sector must cease to be private property and become state domain for the general interest of the population, it has the right to do so.
Moreover, Novoa Monreal drew directly on the UNGA Resolution 1803 (1962) on ‘Permanent Sovereignty over Natural Resources’. This resolution recognised the ‘right of peoples and nations to permanent sovereignty over their natural wealth and resources’ and that this right ‘must be exercised in the interest of their national development and the wellbeing of the people of the state concerned’. This is a sovereign and inalienable right.
Finally, Novoa Monreal asserted that international law needed a clear rule accepted by the community of states on nationalisation and its eventual legal consequence, compensation. Therefore, the Chilean project of nationalisation of copper would be fully justified, as carried out by the Unidad Popular government, and no compensation was required. This project was related to the broader objective of realising the independence and development of Chile, which would be associated with the sovereign capacity of the Chilean state. Here, international law was articulated by Novoa Monreal to justify a substantive transformation in the way of exploiting an essential natural resource for the country’s economy in the context of the via Chilena hacia el socialismo.
Lawyering from and for the Third World
In his book Law as an Obstacle to Social Change (1975), Novoa Monreal reflected on theoretical matters regarding law and the economic structure. However, in his critical thinking, theory was not analysed apart from the empirical world. On the opposite, they could only go together. To assume otherwise would not only blur the understanding of the law but also deepen social injustices.
‘Now, after having had the singular experience of legally advising Chile in the frustrated attempt to transform its traditional bourgeois society into a society oriented towards socialism, without violating previous institutional frameworks and respecting the guidelines of current legislation’, he reflected, ‘we have been able to appreciate more fully what law means as a hindrance and as an obstacle to social change’. Novoa Monreal acknowledged that the book was the result of his experience in Chile: ‘This experience has encouraged us to write this essay, in which we try to develop in a more complete, coordinated and systematic way the reflections that, in a mind attentive to the requirements of social progress and new political-economic trends, cause the obstructive effects of an ineffective, outdated and obsolete law’.
Lawyers are trained in formulating legal theses to defend those they represent in the best possible way. Novoa Monreal acted as a lawyer from and for the Third World, developing international legal interpretations that enabled a developmental project for Chile based on sovereignty over natural resources. Through legal vocabulary, he sought to implement a political project to transform a peripheral country that historically had suffered losses in an international economic order structurally inattentive to the interests of the ‘weak peoples’, to use Novoa Monreal’s words.
[1] “Now, after having had the singular experience of legally advising Chile in the frustrated attempt to transform its traditional bourgeois society into a society oriented towards socialism, without violating previous institutional frameworks and respecting the guidelines of current legislation, we have been able to appreciate more fully what law means as a hindrance and as an obstacle to social change. This experience has encouraged us to write this essay, in which we try to develop in a more complete, coordinated and systematic way the reflections that, in a mind attentive to the requirements of social progress and new political-economic trends, cause the obstructive effects of an ineffective, outdated and obsolete law.” (Free translation by the authors).
Fabia Fernandes Carvalho is an Adjunct Professor at the Faculty of Law, Federal University of São Paulo, Brazil; and a Senior Fellow with the Transnational Law and Racial Justice Network (TLRJN), Faculty of Law, University of Windsor, Canada.
João Roriz is a Professor of International Law at the Federal University of Goiás, Brazil.