A Sense of Justice
Legal Knowledge and Lived Experience in Latin America
Edited by Sandra Brunnegger and Karen Ann Faulk

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Introduction

Karen Ann Faulk and Sandra Brunnegger

TOWARD AN ANTHROPOLOGY OF JUSTICE

Latin America is as culturally diverse as it is geographically vast. Yet, the nations of Latin America share important historical and institutional characteristics. Perhaps most significantly, countries across the region continue to grapple with the legacies of colonialism—from the classical era of Iberian colonialization to the neocolonial domination enacted through economic penetration in the early twentieth century. At the approach of the twenty-first century, Latin Americans found themselves constrained by the demands of international lending agencies and awash in the flood of cultural and material products made ever more readily available by multinationals striving to captivate and capitalize on the “emerging markets” opened by neoliberal reform. The continent has also had to contend with the legacies of state violence and dictatorial regimes that sought to strip society of its vibrant forms of popular organizations, preemptively crushing opposition and laying the foundation for the economic restructuring that was to come.

These shared processes of emergence paved the way for a diversity of forms of resistance. In the Chilean Atacama Desert, residents have undertaken a prolonged struggle for their right to groundwater. Family members of bombing victims in Buenos Aires brought a case against the state of Argentina before an international human rights body and are still working through a slow process of attempted resolution. In Colombia, some victims of political violence are turning increasingly to the courts for resolution in the wake of devastating personal tragedy, while others reject the state’s ability to fairly adjudicate their grievances and construct instead a nonstate tribunal to consider the damages they have suffered to both persons and property. In all of these cases, the protagonists are seeking one thing: justice. But what exactly does “justice” mean for those involved in each of these examples? If achieved, what would justice look like? Invocations of ‘justice’ are generative not only of a sense of a defined goal or a means of resolution, but they also often raise essential questions of what justice can or should look like. How can “justice” be determined or evaluated? How is it best achieved? What norms or procedures can or must govern its enactment? Who has the authority to decide what “justice” is?

This book answers these questions through grounded ethnographic explorations of a range of cases in contemporary Latin America. The particular experiences of each nation and population in Latin America form a backdrop to the complex ways in which (in)justice is lived and imagined today. “Justice” serves as the ultimate goal and fundamental rationale for a wide variety of actions and causes. Non-governmental organizations, organizations from across the political spectrum, and public protests may all appeal to ideas of “justice”—environmental, social, racial, global, economic, and so on—and only in some cases are legal channels (i.e., the criminal or civil “justice” systems) seen as the first, most appropriate, or only avenue for enacting change.

The chapters in this book examine the negotiations and social interactions involved in the “production of justice” by which we refer to the multiple processes whereby socially contentious issues may be settled. The implementation of justice and the search for it are inextricable from—and sometimes a matter of—social and economic inequality, human rights abuses, organized or casual crime, violence, corruption, patronage, or other forms of structural exclusion. Asymmetries in different groups’ experiences with justice engender practical and theoretical disagreements over acceptable forms of resolution. Indeed, those seeking justice are constrained by available channels and the underlying assumptions that bolster and define institutionalized forms of redress. As a whole, this book explores what “justice” means to different groups and individuals and the wide variety of methods they use in their struggle to achieve it. The authors find that definitions of “justice” often emerge from the interplay between holistic visions of rightful redress and the practical limitations of available channels for implementing resolutions.

The question of what justice is and the nature of its essential character have lain at the core of political philosophy for millennia (Gaus 2004: 253). In his book A Theory of Justice, John Rawls refers to “the sense of justice” as a moral capacity for good. In particular he sees that “[a] capacity for a sense of justice . . . would appear to be a condition of human sociability” (2003: 433). As such, debates over the nature of justice often take place in the abstract. Philosophers from Plato to Rawls have treated justice as, in Justyna Miklaszewska’s words, “a theoretical concept [and one] that needs to be implemented in the real world” (2011: 119). In recent years, Amartya Sen has proposed a deviation from the prevailing domain of abstract or utopian justice theories, as for him, “[j]ustice is ultimately connected with the way people’s lives go, and not merely with the nature of the institutions surrounding them” (2010: x). Sen’s relational vision of justice offers a more grounded or practical approach through his interest in choice, human agency, and diversity. His concept of agency has, however, been criticized as thin and too abstract (e.g., Gasper 2002: 20) and lacking in “anthropological richness” (Giovanola 2005: 262). Studying justice ethnographically, as this book does, allows us to move away from abstract concepts and to access close-textured descriptions of the meanings of justice and their impact in social life (Clarke 2009; Comaroff and Roberts 1981; Geertz 1983; Hirsch 2006; Rosen 1989).

Philosophical treatments of the ancient and multivalent concept of justice have often reduced it to its manifestation in formal and codified legal systems (aka justice systems). This notion is inherently tied to a modern, liberal idea of the state based on the rule of law and a particular kind of state-subject relationship. In its early days, legal anthropologists and the anthropology of law were key in stepping in to highlight the historically and culturally derived assumptions embedded in this concept of justice, broadening the scope to include non-Western forms of assuring and restoring social harmony. Indeed, the field of anthropology has a long history of analyzing mechanisms of dispute management and their relationship to broader cultural systems (see Malinowski 1926; Nader 1997; Starr and Collier 1989). More recently, a number of important studies have examined justice as a political concept (Mamdani 2001; Wilson 2001), a field of contention (Borneman 1997; Niezen 2010; Payne 2008), and a space for social innovation (Richland 2008) and resistance (Besky 2014; Godoy 2006). Anthropology has also drawn attention to the intersections between custom-based forms of law and the formal legal orders of nation-states or international bodies (Merry 1997; Moore 1978; Nader 1990) and alternative forms of justice that emerge in the absence of effective judicial practice (Godoy 2006; Goldstein 2003, 2004). For example, in his book Outlawed: Between Security and Rights in a Bolivian City, Daniel Goldstein explores the complexities of the now state-sanctioned “community justice” in Cochabamba, Bolivia. Importantly, he shows how the marginal neighborhoods in his study are largely excluded from official forms of protection like effective policing and legal recourse as victims of crime, even as they remain subject to legal regulations governing their actions and options (Goldstein 2012). The ethnography of law has also been fundamental in exploring the functioning of law within society and the construction of legal truths through documentation and in the production of technocratic knowledge (Maurer 2005; Riles 2004, 2006).

Likewise, the anthropology of human rights has importantly drawn attention to the cultural and sociohistorical assumptions embedded in the concept of human rights. Mark Goodale has traced anthropology’s long history of hesitation with the celebratory narrative of progress and universal good that accompanied the modern manifestation of human rights, as formalized in the wake of World War II (Goodale 2006, 2009; see also Messer 1993). While international institutions and funding agencies still tend to espouse a notion of human rights as a universal constant—indeed, that human rights be applicable equally in all times and places is a fundamental element of their contemporary form—anthropologists and other scholars have raised important questions about the historical particularity and neocolonialist potential of a singular, universal notion of rights (Baxi 2006; Clarke 2009). Rather than abandoning the notion of human rights, ethnographic studies of the practice of human rights1 and the way human rights look and are implemented on the ground reveal the multiplicity of ways that people understand, mobilize, resist, adapt, and transform the discourse of human rights in defining and contesting the status quo (see Englund 2006; Faulk 2013; Goodale and Merry 2007; Merry 1997; Tate 2007; Wilson 1997).

Building off the anthropologies of law and human rights, what is at stake in an anthropology of justice is a deeper recognition of the multiple ways in which “justice” is understood. It can perhaps go without saying that the idea of justice is not a singular, universal idea but a complex, locally variable, and ever-changing concept. In their book Mirrors of Justice, Clarke and Goodale argue that there has been an “empirical pluralizing of justice” in the post–Cold War era (2010: 2). This is partly the result of the dissection of the concept of justice into codified variations that are then often treated separately by non-governmental organizations (NGOs) or international regulatory, legal, or governing agencies. Through this division of justice into disparate categories—local, popular, transitional, economic, and so on—we both gain an implicit recognition of the multiplicity of its meaning and lose sight of how this partitioning occludes its own arbitrariness and the very different ways that people interpret it (Clarke and Goodale 2010: 2). For example, transitional justice may be as much about economic inequality as it is about politics, so why could they be separated? Clarke and Goodale focus on the “multiple languages of justice” by considering the complex and interlocking relationship between local meanings of justice and international or normative visions of law, justice, and human rights (2010: 2).

This book expands on this focus with ethnographic attention to the variability in the meanings of justice, or what we might call “justice pluralism,” which we use to refer to the coexistence of a plurality of meanings, ideas, and experiences attached to justice within spatial settings, scales, and layers. These meanings are frequently contested, so differences over the practical course of the law will play themselves out, in part, through attempts to specify justice’s conceptual entailments and demands. As such, “justice pluralism” is broader than the related but more narrow concept of legal pluralism, which focuses specifically on legal systems, including the coexistence of different forms of law within a social field and the pluralistic qualities within systems and institutions of law (Merry 1988). Even taking a broad view of “legal system” to include “nonlegal forms of normative ordering” (Merry 1988: 870), justice pluralism differs from legal pluralism by focusing not on systems of social regulation but rather on the notions and ideas of proper action to redress a perceived wrong. Yet, the concept of legal pluralism per se has been criticized for begging the question of how to define “law.” In Merry’s words, “Where do we stop speaking of law and find ourselves simply describing social life?” (1988: 878). With calls to do away with the concept of legal pluralism due to these definitional problems, Tamanaha suggests we should “accept as ‘legal’ whatever . . . [is] identified as legal by the social actors” (2008: 396). Thus, “legal pluralism exists whenever social actors identify more than one source of ‘law’ within a social arena” (2008: 396). This book’s approach is similar to Tamanaha’s in that “justice pluralism” refers to what individual actors or movements invoke or characterize as justice.

This book joins a body of scholarship focused on the multiple and dialogic construction of legal cultures across Latin America. Cultures of Legality: Judicialization and Political Activism in Latin America, by Javier Couso, Alexandra Huneeus, and Rachel Sieder, and The Judicialization of Politics in Latin America, by Rachel Sieder, Alan Angell, and Line Schjolden both ask relevant questions about the changing face of politics and justice and explore the multiple ways in which the legal system is used, understood, and invoked in the actions of social movements across the region. In particular, Cultures of Legality exposes the disjunctions between the demands for justice and “legal cultures.” This book’s contribution is in its focuses on the meaning(s) of justice and their origins, whether or not they include judicialization.

This book also offers grounded, ethnographic explorations of the concepts of justice in practice and how these concepts may (or may not) rely on the justice that the law can provide but are neither limited to nor fully encompassed by it. To the extent that concepts of justice do rely on or appeal to systems of law, this books aims to destabilize representations that construct a dichotomy between formal and informal legal systems. The chapters demonstrate ethnographically the multiple ways in which different systems interact, and the boundaries between them become blurred and often unsettled. Likewise, Goodale and Merry (2007) have drawn attention to the interplay between local understandings of justice and the assumptions inherent within the national and international systems of law or mediation with which they are engaged. However, they also reject a reified division between the “global” (or dominant culture) and the “local” understandings and point out the theoretically productive space between and among global and local normativities (2007). At the heart of these normativities lie the participants who interpret their actions and the events that animate them through certain understandings of justice, understandings that are constructed within the space of the interplay among different systems.

Latin America provides fertile terrain for the exploration of the meanings of justice and a new theorization of justice as an analytic category. This is not to say that Latin America is unique or homogeneous. Indeed, as Walter Mignolo pointed out, the very category of “Latin America” is more a historically constructed conceptual unit than a geographic reality. An archaeology of the concept of justice as it has been understood, undermined, imposed, implemented, and resisted throughout the region further exposes what Mignolo has signaled as the inextricable coupling of modernity/coloniality (Mignolo 2005: 11), especially as it pertains to morality and law. In other words, using “justice” as a theoretical lens reveals how the colonizing process of imposing similar moral and legal precepts was shared across the region, even as it draws attention to the differences produced from their implementation in diverse social topographies.

Likewise, while Latin American nations share many features with other postcolonial countries, certain elements of a common history unite the widely varied localities of the region and allow for a productive exploration of the divergences that arise out of these commonalities. Here we mention specifically three of these elements and how they have served as focal points in recent struggles for justice, although others could no doubt be added.2 The first is the upsurge in indigenous movements and demands for recognition and respect of indigenous peoples, lands, and culture (Postero 2007; Sullivan and Brunnegger 2011; Warren 1998; Yashar 2005). As Chapters 5 and 7 demonstrate, the interplay between indigenous and hegemonic forms of law and their constructive expression in visions of justice is complex and dynamic. Another feature that has been a prominent subject of justice activism is the region’s enduring legacy and continued reliance on extractivist economics. As New Left governments have come into power in the twenty-first century, challenges to the privatization of state-run industries to (often foreign) private corporations have intensified, and efforts to increase national industry and value-added processing have been given new life (for an overview, see Burbach, Fox, and Fuentes 2013). Taking the idea of justice as a lens illuminates how the long history and lingering legacy of extractivism condition contemporary tensions (see Chapter 7) and inform New Left governments’ attempts to rectify historical injustices and forge a new, inclusive social foundation (see the Conclusion). Finally, the broad reach and impressive diversity of accountability movements across the region following (or, in some cases, during ongoing) political violence can be productively explored through the central demand of “justice” that the movements so clearly articulate. As many of the chapters in this book document, the call for justice made by these movements is omnipresent but not univocal. Exploring what activists and institutions consider to be “justice” offers a powerful lens for understanding what is at stake and what is in store for present-day Latin America.

Taking an analytical view of the diversity of justice in contemporary Latin America, two major themes emerge that underlie and structure how justice is perceived, received, and achieved. The first concerns legal subjectivity, or the effects of legal discourses and practices on the construction of self-identity or the administrative categorizing of others. Actors’ settings are integral to the concepts of justice they promote, demonstrating how these concepts lie at the heart of individuals’ and collective bodies’ subjectivities and experiences. As Chapters 1, 5, and 7 explain, this process can be particularly contentious in situations with a plurality of state and nonstate legal systems, or competing legal logics. The second theme that a look at contemporary Latin America highlights is the role of the production, circulation, and legitimizing force of authoritative legal knowledge. The variety of understandings necessitates that the study of justice must also include attention to the kinds of legal knowledge accepted as valid, especially in cases where multiple knowledges coexist. Chapters 2, 3, 4, and 6 examine how actors become entangled in predetermined webs of authoritative knowledge and legal practices, even as they provide critical reflections on the process. In addition to these two themes, the chapters demonstrate a shared concern for the spatialization of justice. The ethnography that forms the heart of each chapter reveals the importance that space plays in the formation and actualization of ideas of justice. As a whole, this book argues that the production of legal subjectivities and authoritative knowledges are intertwined and that their instantiation in spaces, both concrete and conceptual, is fundamental to understanding the complex ways in which justice is defined and practiced in Latin America today.

Notes

1. Goodale usefully defines the practice of human rights as “all of the many ways in which social actors across the range talk about, advocate for, criticize, study, legally enact, vernacularize, and so on, the idea of human rights in its various forms” (2007: 24).

2. Our thanks to an anonymous reviewer for this suggestion.