Routledge Handbook of Law and Society in Latin America (Routledge Handbooks)

495 Pages·2019·3.939 MB·English

by  Rachel Sieder (editor), Karina Ansolabehere (editor), Tatiana Alfonso (editor)

ROUTLEDGE HANDBOOK OF LAW
AND SOCIETY IN LATIN AMERICA
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. Con-
tributors argue that scholarship about Latin America has made vital contributions to longstand-
ing 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-l egal 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.
Rachel Sieder is a senior research professor at the Center for Research and Graduate Studies
in Social Anthropology (CIESAS) in Mexico City. She is also an associate senior researcher at
the Chr. Michelsen Institute in Bergen, Norway. Her research interests include human rights,
indigenous rights, social movements, indigenous law, legal anthropology, the state and violence.
Her books include: edited Demanding Justice and Security: Indigenous Women and Legal Pluralities
in Latin America (2017); edited with John-A ndrew McNeish, Gender Justice and Legal Pluralities:
Latin American and African Perspectives (2012); and edited with Javier Couso and Alexandra
Huneeus, Cultures of Legality: Judicialization and Political Activism in Latin America (2010). She has
an MA in Latin American Studies and a PhD in Politics from the University of London.
Karina Ansolabehere is a full- time researcher at the Institute of Legal Research of the National
Autonomous University of Mexico, and part-t ime researcher at FLACSO-M exico (Facultad
Latinoamericana de Ciencias Sociales, sede México). She is a sociologist from the University of
Buenos Aires, has a Masters in Economic Sociology from the University of General San Martin,
and a PhD in Research in Social Sciences with specialization in Political Sciences from FLACSO-
Mexico. Her topics of interest are judicial politics, human rights, judicialization of human rights,
legal cultures, and political theory, with special focus on Latin America. She has taught courses
on sociology of law, judicial politics, human rights, and political theory. She is a member of the
National Researchers System of Mexico. Ansalobehere has a degree in sociology from the
University of Buenos Aires, Argentina, and a PhD in Social Sciences with specialization in
Political Sciences from FLACSO- Mexico.
Tatiana Alfonso is an assistant professor at the Autonomous Technological Institute of Mexico
(ITAM) Law School in Mexico City since 2017. Her research interests include human rights,
sociology of law, sociology of race and ethnicity, sociology of development, and methodologies
for legal research. In her work, she explores the relation between law and social inequalities with
a focus on how legal and political institutions may have distributive effects between unequal
actors in society. In pursuing those interests, she has carried out research on racial discrimination
and human rights, social movements and legal change, and property rights of indigenous peoples
and Afrodescendant communities in Latin America. She is a psychologist and a lawyer from
Universidad de Los Andes (Bogotá, Colombia) and holds a Masters and a PhD in Sociology
from the University of Wisconsin-M adison.
ROUTLEDGE HANDBOOK OF
LAW AND SOCIETY IN
LATIN AMERICA
Edited by Rachel Sieder, Karina Ansolabehere,
and Tatiana Alfonso
First published 2019
by Routledge
52 Vanderbilt Avenue, New York, NY 10017
and by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2019 Taylor & Francis
The right of Rachel Sieder, Karina Ansolabehere and Tatiana Alfonso to be identified as
the authors of the editorial material, and of the authors for their individual chapters, has
been asserted in accordance with sections 77 and 78 of the Copyright, Designs and
Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or utilized in
any form or by any electronic, mechanical, or other means, now known or hereafter
invented, including photocopying and recording, or in any information storage or
retrieval system, without permission in writing from the publishers.
Trademark notice: Product or corporate names may be trademarks or registered
trademarks, and are used only for identification and explanation without intent to
infringe.
Library of Congress Cataloging- in-Publication Data
Names: Sieder, Rachel, editor. | Ansolabehere, Karina, editor. |
Alfonso Sierra, Tatiana, editor.
Title: Routledge handbook of law and society in Latin America /
edited by Rachel Sieder, Karina Ansolabehere, Tatiana Alfonso.
Description: Abingdon, Oxon ; New York, NY : Routledge, 2019. |
Includes bibliographical references and index.
Identifiers: LCCN 2019003250 (print) | LCCN 2019005191 (ebook) |
ISBN 9781315645193 (Master) | ISBN 9781317291282 (Adobe) |
ISBN 9781317291275 (ePub) | ISBN 9781317291268 (Mobi) |
ISBN 9781138184459 (hardback) | ISBN 9781315645193 (e-book)
Subjects: LCSH: Law–Social aspects–Latin America.
Classification: LCC KG99 (ebook) | LCC KG99 .R68 2019 (print) |
DDC 340/.115098–dc23
LC record available at https://lccn.loc.gov/2019003250
ISBN: 978-1-138-18445-9 (hbk)
ISBN: 978-1-315-64519-3 (ebk)
Typeset in Bembo
by Wearset Ltd, Boldon, Tyne and Wear
CONTENTS
List of Figures viii
List of Tables ix
Notes on Contributors x
Acknowledgments xviii
1 Law and Society in Latin America: An Introduction 1
Rachel Sieder, Karina Ansolabehere, and Tatiana Alfonso
Part I
Law, Politics, and Society 23
2 Latin America’s Contribution to Constitutionalism 25
Roberto Gargarella
3 State and Law in Latin America: A Critical Assessment 37
Lisa Hilbink and Janice Gallagher
4 Legal Pluralism and Fragmented Sovereignties: Legality and Illegality in
Latin America 51
Rachel Sieder
5 Disobeying the Law: Latin America’s Culture of Noncompliance with
Rules 66
Mauricio García-Villegas
6 Law and Violence in Latin America 81
Julieta Lemaitre
v
Contents
7 Ethnography, Bureaucracy, and Legal Knowledge in Latin American State
Institutions: Law’s Material and Technical Dimensions 95
Leticia Barrera and Sergio Latorre
8 Latin American Feminist Legal Theory: Taking Multiple Subordinations
Seriously 111
Isabel Cristina Jaramillo Sierra
9 Afrodescendants, Law, and Race in Latin America 126
Tanya Katerí Hernández
10 An Agenda for Latin American “Law and Development” 138
Pedro Fortes
11 Marxist Perspectives on Law and the State in Latin America 152
Carlos Rivera Lugo
Part II
New Constitutional Models and Institutional Design 167
12 Judicial Politics in Latin America 169
Juan F. González-Bertomeu
13 Supreme and Constitutional Courts: Directions in Constitutional Justice 187
Francisca Pou Giménez
14 Public Prosecutor’s Offices in Latin America 205
Verónica Michel
15 Human Rights Ombudsmen in Latin America 224
Fredrik Uggla
16 Prisoner Capture: Welfare, Lawfare, and Warfare in Latin America’s
Overcrowded Prisons 243
Fiona Macaulay
17 Challenges of Police Reform in Latin America 259
Lucía Dammert
18 Legal Professionals in Latin America in the Twenty- First Century 278
Manuel A. Gómez
19 Legal Institutions as Arenas for Promoting Human Rights 293
Karina Ansolabehere
vi
Contents
20 Deglobalization and Regional Human Rights 309
Alexandra Huneeus
Part III
Law and Social Movements 323
21 The Judicialization of Politics in Latin America 325
Bruce M. Wilson and Camila Gianella
22 Society, the State, and Recognition of the Right to a Self- Perceived
Gender Identity 342
Laura Saldivia Menajovsky
23 Law, Gender, and Social Movements in Latin America: Moral Negotiations
and Uneven Victories in Feminist Legal Mobilization 358
Marta Rodriguez de Assis Machado, Ana Luiza Villela de Viana Bandeira,
and Fernanda Emy Matsuda
24 Transitional Justice and the Politics of Prosecuting Gross Human Rights
Violations in Latin America 376
Elena Martínez Barahona and Martha Gutiérrez
Part IV
Emergent topics 393
25 Urban Regulation and the Latin American City 395
Rodrigo Meneses Reyes
26 Landscapes of Property: Socio-L egal Perspectives from Latin America 404
Tatiana Alfonso
27 New Influences on Legality and Justice in Latin America: Corruption and
Organized Crime 420
Linn Hammergren
28 The “New Militarism” and the Rule of Law in Latin American
Democracies 433
Julio Ríos-Figueroa
29 Drugs and the Law in Latin America: The Legal, Institutional, and Social
Costs of Drug Policy 447
Alejandro Madrazo Lajous and Catalina Pérez Correa
Index 468
vii
FIGURES
8.1 Law as a Complex Cultural Phenomenon 116
17.1 Percentage That Agreed That the Armed Forces Should Combat Crime, 2014 268
28.1 Military Participation in Government, 1978–2013 437
28.2 De Jure Scope of Military Jurisdiction, 1978–2013 438
viii
TABLES
8.1 Slaves of Slaves 114
14.1 Comparison Between Inquisitorial and Adversarial Criminal Procedure Systems 207
14.2 Diversity in Institutional Design of Prosecutorial Organs in Latin America 211
14.3 Type of Systemic Failures in Criminal Justice at the Prosecution Stage 213
15.1 Name, Creation, and ICC Status (2014) of Different Latin American
Ombudsmen 226
15.2 The Issues and Rights That Feature Most Frequently in the Cases and
Complaints Brought Before the Ombudsman in Different Countries 232
15.3 Popular Confidence (1–7) in the Ombudsman, the Judicial System, and the
National Police 233
15.4 Explanations for Confidence in Ombudsman. 235
16.1 Incarceration Levels and Rates in Latin America 1992–2017 244
19.1 Tensions and Challenges of Judicial Powers as Arenas for Human Rights 304
21.1 Examples of Studies Analyzing Judicialization of Politics in Latin America 337
24.1 Variation of Transitional Justice Measures 380
29.1 Is Consumption and/or Possession of Illicit Substances a Crime? 449
29.2 People Imprisoned for Drug Crime, Percentage Drug Crimes Represent the
Total Prison Population, Increase in Drug Population in Prison and Increase in
Overall Prison Population 455
29.3 Mistreatment by Type of Crime 458
ix