Routledge Handbook of Law and Society in Latin America

Rachel Sieder, Karina Ansolabehere, Tatiana Alfonso, Rachel Sieder, Karina Ansolabehere, Tatiana Alfonso

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781317291275
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

An understanding of law and its efficacy in Latin America demands concepts distinct from the hegemonic notions of "rule of law" which have dominated debates on law, politics and society, and that recognize the diversity of situations and contexts characterizing the region.

The Routledge Handbook of Law and Society in Latin America presents cutting-edge analysis of the central theoretical and applied areas of enquiry in socio-legal studies in the region by leading figures in the study of law and society from Latin America, North America and Europe. Contributors argue that scholarship about Latin America has made vital contributions to longstanding and emerging theoretical and methodological debates on the relationship between law and society.

Key topics examined include:

• 
  
  

• The gap between law-on-the-books and law in action
• The implications of legal pluralism and legal globalization
• The legacies of experiences of transitional justice
• Emerging forms of socio-legal and political mobilization
• Debates concerning the relationship between the legal and the illegal.

The Routledge Handbook of Law and Society in Latin America sets out new research agendas for cross-disciplinary socio-legal studies and will be of interest to those studying law, sociology of law, comparative Latin American politics, legal anthropology and development studies.

1

LAW AND SOCIETY IN LATIN AMERICA

An Introduction

Rachel Sieder, Karina Ansolabehere, and Tatiana Alfonso

In common with other regional traditions of law and society studies, law and society research in Latin America is concerned with the relationship between law – understood broadly as norms, institutions, and practices – and long-run patterns of development, political environment, institutional forms, and cultural specificities. However, as we argue in this introduction, even when it is impossible to characterize such a diverse region, the distinctive contours of socio-legal research in Latin America have been particularly shaped over time by key political and historical junctures, and by the changing nature of the socio-legal academy.¹ Unsurprisingly, law and society scholarship in the late twentieth century was marked by shifts in the region’s political history: from the initial optimism about legal transplants during the period of the Alliance for Progress, and the subsequent law and development movement, through the pessimism of the years of dictatorship when authoritarian legal orders were consolidated, to the role that human rights and new constitutional orders have played in numerous states following transitions from authoritarian rule and civil war. More recently, scholarship has focused on issues such as the justiciability of the rights of indigenous and Afrodescendant peoples, the relationship between law and legal institutions, and social change, or the judicialization of governmental corruption that has led to highly charged confrontations between executives, legislatures, and the judiciary in many countries of the region.

Latin America’s socio-legal academy has also developed during recent decades. It is smaller and less institutionalized than its United States and European counterparts, and its members tend to be more directly involved in attempts within their countries (and increasingly across the region as a whole) to secure progressive social change through law. It is also an academy characterized by a high degree of methodological heterogeneity and rich cross-disciplinary dialogs, straddling law, legal philosophy, sociology, political science, history, anthropology, and cultural studies. Compared to the USA and Europe, less large-scale quantitative comparative research is undertaken, a result both of funding limitations and the relative lack of established expertise in cross-regional quantitative legal analysis.² Although the division between Marxist and liberal approaches has marked the history of Latin American law and society scholarship, it is also the case that rather than developing around specific theoretical and methodological trends or departures (as in the United States and European socio-legal academy), empirically informed socio-legal scholarship has tended to be led by a focus on specific issues and problems: for example, gender discrimination, or police violence, to name just two topics that have generated a wealth of research in recent years. Multidisciplinary approaches including historical, jurisprudential, ethnographic, and institutional analyses are increasingly a standard feature of such scholarship. This volume aims to map the emerging contours of law and society research in Latin America and contends that an understanding of how law has been studied in the region can contribute to understandings of law more broadly.

Law and society is a field with shifting boundaries. For that reason, any attempt to define its limits and shape is a controversial and complicated enterprise. In the United States and Europe, we can identify historical trajectories of the field’s development with reference to certain organizations, universities, and research centers such as, for example, the Law and Society Association in the United States,³ the University of Wisconsin, Oñati in the Basque country,⁴ the Center for Social Studies (CES) in Coimbra, or human rights programs at the Institute of Latin American Studies in London, or at the Chr. Michelsen Institute in Norway. By contrast, within Latin America itself the field has not been as closely linked to the development of particular organizations, although – as we signal in this introduction – a diversity of institutions in different countries has played a key role in its formation at distinct moments in time.⁵

We use here two criteria to identify the law and society field in Latin America. The first is a pragmatic one: Latin America as both a site of interest and a place of production for law and society studies. Second, despite the field’s diffuse contours in a region where no one association or publication exists that articulates academic production, we define it according to a common denominator, namely the shared interest in law in action. Rather than specific methodological or theoretical perspectives, this is what primarily defines law and society studies in the region. Widely different contributions all share a concern to understand how law functions in practice: how it is represented and imagined by different groups, the distinct ways in which law is used and invoked, and the effects it produces. As a consequence of this point of departure, and in contrast to earlier attempts to survey the field of socio-legal studies in the region (see the important contribution of García-Villegas and Rodríguez-Garavito 2003), we do not attempt to characterize law or law and society in the region. The diversity of the legal, social, and political trajectories of 17 countries makes this an impossible task and ultimately, we would argue, one of limited analytical purchase, given that many features of law – understood as a social construction – in Latin America are in fact now common to law everywhere. Although one of our points of departure is the profound gap between law in action and law on the books throughout the region, the idea that social life is or can ever be ordered by legal norms is on the wane in most socio-legal scholarship. In addition, the blurring of the lines between the legal and the illegal is a global phenomenon, not just one restricted to the Global South (Comaroff and Comaroff 2006, 2016). Latin America has long been characterized as a region which simultaneously fetishizes the law, affording it great symbolic power, while at the same time offering a panorama of weak rule of law or even “lawlessness.” Yet these characteristics – even were they found to hold uniformly throughout the region – now appear generic to socio-legal realities in most of the world.

Given the aforementioned diversity our review is necessarily partial. What we aim to do in this introduction, therefore, is to map tendencies. The tendencies we identify are not causal factors as such, but rather the product of a specific shared historical context defined by the superposition of new constitutional realities, legal pluralism, spiraling violence, and the rise in the importance of human rights narratives, together with the consolidation of an increasingly professionalized and internationally connected socio-legal academy within Latin America and beyond. This translates into an agenda in which classic concerns about the symbolic efficacy of the law combine with a focus on legal institutions and the convergences between legality and illegality in a region of acute and enduring socioeconomic, racial, and gender inequalities. What historical processes of state formation explain persistent violations of human rights and extremely high levels of violence? What is the role of law and legal institutions in either perpetuating or transforming these patterns? Can new constitutional rights be enforced, altering entrenched historical patterns of socioeconomic and racial inequalities? These questions have been central to the recent expansion of socio-legal scholarship on Latin America, which is shaped by the tension between the imperfection and indeterminacy of law and legal institutions on the one hand, and the increased recourse to those institutions by a range of actors, on the other.

In the following section, we trace the main thematic foci and perspectives of key junctures in the development of law and society scholarship in the region. As we will show, the field has become more complex and rich in recent years, and is now characterized by a diversity of themes and a critical mass of studies on specific issues.

Key moments in the study of law in action in Latin American law and society scholarship

Although it is far from easy to identify all studies of law in action in Latin America, there is a consensus in the literature that the law and development movement, linked to the Alliance for Progress in the 1960s, constituted the starting point for growing interest in the link between law and social change in the region (García-Villegas and Rodríguez-Garavito 2003). From then to the present we can identify certain long-run shifts in perspectives. First, earlier thinking about law in action as “noncompliance” or the lack of observance of legal norms susceptible to transformation by means of “appropriate” reforms has given way to an understanding of law in action as a complex process wherein the gap between law in action and law on the books is a constitutive feature of law itself (and therefore, to a recognition that the “benevolent” effects of judicial reforms are contingent on a multitude of legal, political, and social processes). Second, there has been a movement away from approaches that conceived of the state as a unified, homogenous actor, toward a broad understanding of the state as a fragmented space containing multiple legalities and powers. Third, whereas in the 1960s law and its production was understood as predominantly state-centered, it has increasingly come to be understood as an increasingly international and subnational phenomenon involving different dynamics between formal state structures, international bodies, and a range of political and social actors, and disputing processes occurring at different scales. In addition, we can observe a densification of the academy as the number of studies carried out by scholars based in Latin America and those outside the region has increased, together with the links between them. Thematically, the field of study itself has also become broader: law in general, the legal professional, and legal reform are no longer at the center of analysis and more specific agendas have multiplied. One example would be the different studies concerned with legal mobilization around a range of issues, or another the broadening of research on judicial actors and institutions. In what follows we present a brief overview of key junctures and topics.

The origins of concern with law in action in Latin America can be traced back to the 1960s with the rise of the law and development movement (Trubek and Santos 2006). Defined by attempts to modernize countries deemed “underdeveloped,” this movement understood law as a privileged tool for the transformation of the traditional into the modern, with legal transplants, and the reform of the legal profession at its core. The state (conceived of as a unitary entity) would thus, be afforded the tools required to achieve economic development and political modernization. Binary dichotomies – tradition/modernity; compliance/noncompliance with rules and laws – defined the analytical framework of the movement, whose central aim was to establish the legal foundations of the developmentalist state, for example, through measures such as agrarian reforms. Critical studies that questioned the assumed relationship between legal reforms, the legal profession, and their influence on development were developed largely outside Latin America, specifically within the North American academy by David Trubek and Marc Galanter (1974), founders of the law and society movement in the USA.

Another important moment in the thematic evolution of law in action perspectives in Latin America was connected to the emergence of authoritarian developmentalist regimes. Guillermo O’Donnell’s influential publications, Modernization and Authoritarianism (1972) and The Bureaucratic Authoritarian State (1982), questioned the relationship between democracy and development assumed by modernization theory (which was the paradigm underpinning the law and development movement), and focused on the forms of state domination generated by political projects to restrict popular political participation in favor of business interests. These studies posited that such tendencies were constitutive of modern socio-political and economic dynamics in South America, especially in Argentina and Brazil. However, the legal dimensions of authoritarian rule were not as central to regional theories of the state as was the case, for example, in Asia (Ginsburg 2003). In this context, studies concerning law and society were organized around two issues or axes: on the one hand, the (non)-functioning of legal institutions and the judiciary, and on the other, the start of the Marxist tradition of critical legal studies in Latin America, which questioned the power of law to transform society, emphasizing instead its nature as a mechanism of domination.

The first group of studies concentrated on analyzing deficiencies in terms of judicial independence and functioning in the region, using United States measures of judicial independence and constitutional control as the standards for comparison. These descriptive and comparative studies were carried out by United States academics, such as Carl Schwarz (1973), Joel Verner (1984) and David Clark (1975), and were notable for their lack of historical contextualization of the relationship between judicial and political power in Latin America. The second group of studies was developed by Latin American Marxist lawyers, who aimed to challenge hegemonic legal perspectives and promote alternative uses of law. Under the banner of critical legal studies (Crítica Jurídica), these perspectives were promoted by Mexican, Brazilian, and Argentine scholars, including Oscar Correas (an Argentine who developed his academic career in Mexico) and Carlos Cárcova, also from Argentina. Although their studies were largely theoretical and philosophical as opposed to empirical, the importance of this growing movement questioning the progressive nature of law cannot be overstated. For example, these critical perspectives contributed to the concept of “alternative law” that underpinned the founding of ILSA, the Latin American Institute for Alternative Law and Society (Instituto Latinoamericano para una Sociedad y un Derecho Alternativo) in Colombia in 1978. ILSA’s collaborative action research with popular and social movements – which continues to the present day – focused on supporting counter-hegemonic forms of law “from below.” These groups of legal scholars were largely comprised of university professors who trained future generations committed to these critical perspectives. They also created spaces for intellectual exchange and diffusion, such as the Marxist journal Crítica Jurídica, published by the National Autonomous University of Mexico (UNAM) and publications such as El Otro Derecho or Beyond Law in the case of ILSA. This current of research built a trenchant critique of state law, and also prioritized alternative ways of understanding and conceiving of law. In this sense, its concern with issues of noncompliance was channeled into alternative practices and forms of social regulation or law.

The third moment in the historical trajectory of law and society studies in the region was that of the transitions to democratic rule in the Southern Cone and Central America. With these transformations, the concern for the rule of law and the relationship between democracy and development, together with the challenges of how to respond to the massive violations of human rights committed under the previous regimes, raised new expectations and questions about the role that law and legal institutions could play in the new democracies. The transitions to democracy also brought a new impulse to legal reforms to strengthen the rule of law, which was understood in two registers: first, legal security for investment, and second, equality before the law and the seeking of justice for human rights violations committed by the authoritarian governments. Legal scholars and public intellectuals such as Carlos Nino in Argentina played a central role in developing a progressive legal agenda in the context of transition, inspiring a generation of law and society scholars across the region. Dating from this period, international human rights regimes came to play an increasingly important role as local actors invoked international instruments in order to pressure for domestic change (Keck and Sikkink 2001). At the same time, the agenda for judicial reform was supported by multilateral agencies, led by the World Bank, to the point that it is possible to talk of a second wave of the law and development movement concerned with cementing the transition to open market economies through the “rule of law” (Dezalay and Garth 2002). A similar set of legal transplants was promoted across the region at this time, including judicial councils for the selection of judges, and judicial training schools to professionalize practitioners (Carothers 2001). Simultaneously, the first prosecutions against perpetrators of human rights occurred, including the emblematic trial of the former leaders of the military junta in Argentina, together with the first attempts to democratically overturn amnesty laws that prevented the prosecution of those responsible for gross violations of human rights, as in the case of Uruguay in 1989. In subsequent years, processes of transitional justice for gross violations of human rights under authoritarian rule that occurred following the transitions in both the Southern Cone and Central America became a key field of comparative study, increasing scholarly interest in Latin America’s legal institutions and socio-legal mobilizations. Such was the significance of the regional experience that it is estimated that more than half of all human rights trials carried out in the world have taken place in Latin America (Payne et al. 2015). Subsequently the global law and society field of transitional justice studies increased exponentially, and within this the leading role played by studies of Latin America, many carried out by regionally-based scholars, has been indisputable. The principle questions guiding this research have to do with discovering the most adequate combin...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Figures
• List of Tables
• Notes on Contributors
• Acknowledgments
• 1 Law and Society in Latin America: An Introduction
• PART I: Law, Politics, and Society
• PART II: New Constitutional Models and Institutional Design
• PART III: Law and Social Movements
• PART IV: Emergent Topics
• Index