Law and Society in Latin America

A New Map

Cesar Garavito, Cesar Rodriguez Garavito

• Publisher: Routledge
• Year: 2014
• Print ISBN: 9780415854047
• eBook ISBN: 9781136002489
• Topic: Law
• Subtopic: International Law
• Index: Law

Over the past two decades, legal thought and practice in Latin America have changed dramatically: new constitutions or constitutional reforms have consolidated democratic rule, fundamental innovations have been introduced in state institutions, social movements have turned to law to advance their causes, and processes of globalization have had profound effects on legal norms and practices. Law and Society in Latin America: A New Map offers the first systematic assessment by leading Latin American socio-legal scholars of the momentous transformations in the region.

Through an interdisciplinary and comparative lens, contributors analyze the central advances and dilemmas of contemporary Latin American law. Among them are pioneering jurisprudence and legal mobilization for the fulfillment of socioeconomic rights in a highly unequal region, the rise of multicultural constitutionalism and legal struggles around identity politics, the globalization of legal education and practice, tensions between developmental policies and environmental justice, and the emergence of a regional human rights system. These and other processes have not only radically altered the institutional landscape of the region, but also produced academic and practical innovations that are of global interest and defy conventional accounts of Latin American law inherited from law-and-development studies.

Painting a portrait of the new Latin American legal thought for an international audience, Law and Society in Latin America: A New Map will be of particular interest to students of comparative law, legal mobilization, and Latin American politics.

Chapter 1

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Remapping law and society in Latin America

Visions and topics for a new legal cartography

César Rodríguez-Garavito

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New realities, old maps

This book is the result of a collective effort to critically diagnose the study of law in Latin America, and propose new angles from which to view legal thinking. Put in the cartographic terms of the title, it is an attempt to map the legal terrain and propose navigation charts toward routes less traveled, with destinations that are perhaps more promising.

As Santos has theorized, “just like maps, laws are ruled distortions or misreadings of social territories” (1995: 458). Both are simplified representations, a form of imagining and ordering human relations, that, to be efficient, minimizes the complexity of reality. Just as the cartographer traces only some of the details of the land to make it fit into a legible pocket map, the jurist – whether she is a legislator, judge, lawyer or analyst – chooses to regulate or understand only a fraction of the social practices through a legal lens.

As a result, law and cartography operate through highly selective interventions, which adopt one perspective among many. Thus, “a single map is but one of an indefinitely large number of maps that might be produced for the same situation or the same data” (Monmonier 1991: 2). For example, in order to translate the roundness of the globe onto a two-dimensional map, it is necessary to select a projection technique, which also requires that one select a point of the globe to serve as the center of the projection. This additionally implies that one must choose between two mutually exclusive objectives: either faithfully represent the angles between different points on the globe while distorting the area (as in the classic Mercator projection, which over-represents the North of the planet) or represent the area with precision but distorting the angles (as in the Peters projection, which restores the scale of the Global South) (Brotton 2013). In order to fulfil its function, every map must distort reality from the perspective of the chosen geographic center.

And so it is with law. Any quick mapping of what is written and taught about Latin American law, both within and outside the region, shows that most legal scholarship continues to have its central focus on Europe and the United States. Intellectual production from the North is disproportionately magnified (and, consequently, that of the South reduced), as in the classic Mercator map.

Comparative legal and socio-legal literatures published in English are still dominated by chastened versions of the law-and-development paradigm. Despite the fact that the current geopolitical, social and legal context is drastically different from the one that inspired the first wave of law-and-development scholarship and practice in the 1960s, many of the old assumptions about Latin American legal institutions and culture continue to creep into contemporary scholarship and reform projects. As critical scholars from different traditions have shown (Esquirol 2003; López 2004; Rodríguez-Garavito 2000), such assumptions tend to depict Latin American legal fields as marked by large gaps between norms and practice, exacerbated legal pluralism, clientelistic legal cultures, and authoritarianism. Explicitly or implicitly, this view is based on a comparison made against an equally skewed view of legal institutions of the Global North, where these characteristics presumably do not exist.

While this depiction of Latin America has always been theoretically and empirically inadequate, it is even more so today, when the facts on which it is based are changing. The bipolarity of the Cold War and the hegemony of the United States at the end of the last century have been replaced by an increasingly multipolar geopolitical context in which Latin American countries like Brazil and Mexico play a central role. While dictatorships ruled over a large part of the continent during the founding years of law and development, now, democratic governments govern practically the entire region. Instead of the rise of neoliberalism we saw during the final years of the twentieth century, today the political economies of the region, to varying degrees, include robust social policies aimed at reducing poverty and inequality.

In the meantime, in the midst of the economic crisis in Europe and the United States, unleashed by deregulation and austerity policies since 2008, the legal institutions of the Global North show many features that, according to law and development, characterize Latin America. The growing socioeconomic inequality in the North has led to small elites having a disproportionate and excessive amount of influence regarding the substance of laws; the precarious economy has created a steep rise in the informal sector and in legal pluralism; and the xenophobic reactions against immigration and the war against terrorism have given way to criminal laws and legal decisions typical of authoritarian regimes. Euro-America seems to be evolving toward the caricaturized version of the Global South, as has been provocatively suggested by Comaroff and Comaroff (2012).

As with any asymmetric relationship, the North-South comparison that dominates the English literature about the law in Latin America continues to be influential because it has its correlate in literature produced in Latin America. Latin American legal scholars spend an excessive amount of time, resources and energies assimilating, translating and interpreting (or simply “staying current” with) materials produced in the North. For example, in legal education the prevailing practice is to use specialized manuals, on topics ranging from torts and civil contracts to property and administrative law, that usually start with a lengthy and scientifically questionable historical introduction beginning in Rome, passing through the drafting of the Napoleonic Code and ending with the adoption of this legal tradition in Latin America. Without going into the practical relevance or analytical value of these historical introductions for the study of the specific topic, what is important to highlight here is the perspective that this type of legal education tends to adopt. The period when the law travels from Rome to France (with a few stops along the way) is explained as a progression toward a consummate model, while the period when national law is created tends to be seen as one of importation and assimilation of those models. Thus, implicitly or explicitly, national law tends to be considered a poor copy of a model that, by definition, can never be satisfactorily emulated, be it the French law of contracts, the American adversarial criminal justice system or system of constitutional control, or the Spanish or German Bill of Rights. Hence, a large part of the content of Latin American law textbooks consist of an agglomeration of long textual citations of international doctrine, a collage that limits the role of local legal scholars to that of a commentator of cited foreign authorities.

A similar phenomenon occurs with legal theory. In their writings about the law, Latin American authors have a marked predilection for exegesis and commentary without reference to the actual practice of law or, even less, the reality of how the law is applied in local contexts. The style of theoretical analysis tends to be that of a ventriloquist: local spokesmen for legal theories from Europe or the United States abound, and whose work often has a philosophical structure, or involves defending positions, that reflect the social and academic reality of the North. Thus, they are of questionable relevance for understanding the large theoretical problems of law in Latin America.

A map of socio-legal studies reveals a similar panorama. The subordinate perspective in this field often comes from the mistaken use of the Weberian concept of “ideal types” as normative ideals instead of descriptive models. For Weber, the methodological utility of ideal types is purely descriptive and heuristic: they are mental creations that help the analyst classify and understand the complexity of the social reality (Weber 1978). Hence, ideal types, for example, of modern law, capitalism, or bureaucracy, are models only in a descriptive sense, not normative. They are formulations of the imagination that help to understand facts, rather than an ideal to which one should aspire (Poggi 2006: 26).

This distinction is frequently lost in Latin American socio-legal studies. Many scholars try to explain institutions and legal practices in the region by comparing their realities with ideal types (in a normative sense, that is to say, as superior models) extracted from an uncritical reading of the realities of Europe or the United States. The result is the perpetuation of law-and-development dyads that are as empirically inaccurate as they are analytically problematic: legal monism in the North versus legal pluralism in the South, rule of law there versus authoritarianism here, culture of compliance in the North versus non-compliance in the South, and so on.

In sum, the key trait that the literature within and outside the region share is a certain angle from which it views the law, a perspective of analysis that reconstructs and reinforces Latin America’s place as a “reception context” – of norms, theories and doctrines from “production contexts” of the global North (López 2004).

The scholarly effects of this perspective are as profound as they are palpable. They are evident, for instance, in the dearth of Latin American contributors to the English-language literature on law in the region. Despite the globalization of knowledge and the explosion of transnational academic networks, writing about Latin America for an international audience continues to be produced largely by Northern-based scholars. On the Latin American side, the effects of the asymmetric scholarly field are evident, for example, in the marked inclination towards reading and citing publications by Northern authors, and a disinclination towards reading or highlighting of the contributions of Southern colleagues. Once again, the history of Latin American legal innovations (for example, the social constitutionalism of the last two decades, which has pioneered theories, doctrines and decisions regarding socio-economic rights in the world) is often told from outside the region, and not by those who developed these theories.

Of course this asymmetry is not exclusive to legal thinking, nor is this critique new. In fact, it has been widely researched and discussed in other schools of Latin American thought, such as cultural studies (Fernández 2005; Grüner 2005) and social sciences (Lander 2003), which have proposed a reflective, analytical and epistemological approach designed to counteract such tendencies. Latin American historians are going further and have undertaken a collective effort to publish new histories for ten countries in the region that, in an impressive collection of 95 books, are rethinking national trajectories in light of events and ideas native to Latin America (Schwarcz 2011).

In contrast, the legal field has been largely impermeable to such critical discussions. It often appears one step away from falling in the well-known epistemological trap of exoticizing the Latin American reality: the same faux pas that the Colombian novelist Juan Gabriel Vásquez criticized with eloquence in his prize-winning essay, The Art of Distortion (2009). Commenting on a classic work of Alejo Carpentier from 1943 regarding the supposed exoticism of Latin Amdistorsión1;squez threw the following dart: “Carpentier has used, to write his thesis, the eyes of a European […] In fact, […] by thinking so much about Latin America, he has gone from being Latin American to becoming a Latin Americanist” (2009: 34).

How can we escape this trap? How can we overcome the continuing legacy of law-and-development thinking? How can critical scholarly perspectives, from inside and outside the region, foster a horizontal transnational dialogue among equals about law in Latin America? How can we create a community of scholars that produce richer theoretical and empirical analyses, and foster legal practices that deepen democracy, equality, plurality and human rights in Latin America?

From various fields and topics, the authors in this book try to answer these questions. They do so from the perspective of scholars who are in – and deeply involved with – Latin American legal institutions, from law schools to courts to non-governmental organizations to intergovernmental human rights organizations.

To contextualize the content and outline the structure of the volume, in the remainder of this chapter I describe two organizing threads that cut across the chapters. First, I discuss the shared angle of vision from which contributors write about their topics. Second, I sketch the current context of the Latin American legal fields in terms of the advances and the tensions they are experiencing. In cartographic terms, I am interested in detecting the movement of the tectonic plates – the political, economic and institutional changes – that have altered the legal landscape of the region. The result is a map that is different from the conventional one, in which there are new constitutions, legal innovations that have been exported to other regions of the world and unresolved disputes about basic concepts and institutions, from multicultur-alism to the rule of law.

A new legal cartography

More than a thesis or analytic style, the essays of this book share a vision. To continue with the cartographic metaphor, what ties them together is a certain projection technique, one that locates its geographic center in Latin America, and draws from there an image of law in the region and in the world. Thus, they undertake a task that cartographers have called “counter-mapping” (Wood 2010), an effort to represent a territory (in this case, the legal) from perspectives that are different from the dominant.

Fernández Retamar, pioneer counter-cartographer of Latin American cultural studies, has articulated this approach using literature, specifically the characters-concepts of Prospero (the colonizer, the master) and Caliban (the colonized, the enslaved) of Shakespeare’s The Tempest. “Assuming our condition as Caliban implies rethinking our history from the other side, from the other protagonist” (Fernández 2005). In this line, legal counter-mapping attempts to go further than the dominant perspective in its various historical forms (the North, the West, the “civilized world,” the center, the First World, the developed world, the masculine, the white, etc.) in order to think about the law from another viewpoint (the South, the East, the “barbarian world,” the peripheral, the less-developed world, the feminine, the indigenous, the black, the mestizo, etc.).

Hence, this book opens with a context section located decidedly in Latin America. In the three chapters that comprise Part I, the authors reflect over key challenges that cut across the legal practice in the region: inequality (Oscar Vilhena), violence ( Julieta Lemaitre) and the culture of non-compliance with law (Mauricio García).

This perspective, nonetheless, does not turn its back on global legal thinking. An intellectual isolation of this kind would be as unfeasible as it would be undesirable. Although anchored in Latin America, the counter-mapping presented in this book is a hybrid of the contributions of legal thinking both ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Notes on contributors
• 1 Remapping law and society in Latin America: Visions and topics for a new legal cartography
• Part I The context of Latin American law
• Part II Constitutional reforms and innovations
• Part III The multicultural turn: indigenous peoples' rights
• Part IV Transnational legal processes and human rights
• Index