Volume 43 | Number 2 Spring 2008
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I. First Things First: Overture and Overview
Lo que cuenta, lo que yo he tratado de contar, es el signo afirmativo frente a la escalada del desprecio y del espanto, y esa afirmación tiene que ser lo más solar, lo más vital del hombre: su sed erótica y lúdica, su liberación de los tabúes, su reclamo de una dignidad compartida en una tierra ya libre de este horizonte diario de colmillos y de dólares.2
Imagine someone comparing Latin American legal systems in the following terms: “In México, everything is permitted, except what is explicitly prohibited. In Chile, everything is prohibited, except what is explicitly permitted. In Cuba, everything is prohibited, including what is officially permitted. And in Brazil, everything is permitted, especially what is strictly forbidden.”
Quick comparisons in law usually take such form. They are crisp, they are humorous, and they are wrong. Deliberate comparisons, in contrast, tend to be complicated, ponderous, and tentative. They rarely deliver a punch line.
While hopefully not entirely devoid of entertainment value, the comparative reflections in this piece are admittedly of the second variety. Accordingly, the underlying argument does not ride on, but rather debunks easy, occasionally amusing, and deeply ingrained stereotypes about Latin America, as a land of chaos, lawlessness, oppression, and hopelessness. The article focuses instead on the remarkable developments of late in the programmatic adjudication, procedural enforcement, and internationalization of fundamental entitlements throughout the region. These accomplishments have periodically taken place even against an adverse backdrop of weak adherence to notions of democracy, individual liberty, legality, and solidarity.
This project examines the way in which law operates across the continent, and uncovers core commonalities in the various rights praxes, without losing sight of the significant differences. In the end, a coherent whole manifests itself, with the similarities clearly outweighing the discontinuities. A familial resemblance—though not an overall essence—runs through the multifarious instances. A non-rigid, fluid conception of entitlements, which reveals itself through the achievements alluded to, overarches es the region in its full extension, from Tijuana to Tierra del Fuego.
Insofar as the jurisdictions under examination in this paper converge around such an interpretation, they meet a central requirement for the constitution of a congruous legal tradition. In modern and even postmodern times, such a traditional unit would hardly be conceivable if the comprised juridical systems did not have, at least to some degree, a common understanding of what comprises a right. Normally, there must be additional points of overlap in matters such as the model of adjudication, the relevance of scholarly commentary, or the relationship between law and morality. This article does not thoroughly delve into these issues; it simply paves the road to further thought and research on them.
The present work does not merely report on plainly observable correlations, let alone on the corresponding disconnections. Instead, it painstakingly teases a number of positive trends out of real-life cases and thereupon envisages a Latin American narrative on legal entitlements. The end result is neither a snapshot of legal reality today nor a pipe dream about the direction that the law should take. Rather, it is an assessment of the full potential of the rights culture presently in place and a somewhat paradoxical evocation of a distant but plausible utopia.3 The story therefore unfolds more normatively than descriptively; yet it essentially positions itself somewhere between these two extremes.4
The developments at stake have emerged, for the most part, relatively recently and have varied immensely in the extent of their pervasiveness. They include, principally, the vigorous judicial enforcement of negative and (especially) positive guaranties, the establishment of extraordinary procedural safeguards for individual, and collective, entitlements, and the effective implementation of international human rights. While these achievements do not even remotely constitute the standard modus operandi, they do signal an imaginable future.
This article obviously does not harbor wild ambitions to reconstruct the Latin American rights regime in its entirety, from the bottom up. It solely purports to adumbrate an immanent (though certainly not imminent) alternative framework by highlighting a few crucial current movements. Fleshing out the details will unavoidably entail further investigation. At the moment, one can at most envision the cathedral from afar.
The scope of application of this methodological approach obviously transcends Latin America. This project adopts other theoretical postures that should equally resonate outside Latin Americanist and comparativist circles. It ultimately takes a panoramic perspective and proposes conceptualizing legal entitlements anew, along comprehensive, integral, or organic lines, rather than in the usual narrow and compartmentalized fashion. It calls for exhaustive consideration of positive, procedural, and international rights, in conjunction with their negative, substantive, and domestic counterparts. The core contention is that deliberation on the latter subset, decoupled from the former, breeds distortion and confusion. Furthermore, this wide-ranging effort involves contemplating the malfunctions and dysfunctions—along with the functions—of law. Legal theorists and practitioners must, accordingly, pay attention to the interstices or gaps, as well as to the rights realm itself. By the same token, they must carefully determine the prevalence of law failure (non-droit).
Beyond these conceptual insights, the juridical accomplishments under analysis should likewise find far-reaching appeal. They represent more than curious phenomena for the diversion of a casual legal anthropologist. By studying these successes, in addition to other aspects of Latin American law, lawyers in the United States and elsewhere will enhance their capacity to reflect upon and comprehend the reality at home. With law, as with language, people are better able to master their own when they confront and contrast it with that of others.5 Almost ineluctably, they become more critical vis-à-vis their native institutions and begin visualizing possible transformations on the basis of the experience abroad or as a result of completely new ideas generated through the reflective exercise.
After some obligatory nomenclatural clarifications in Part II, the discussion concentrates in Part III on first-, second-, and third-generation entitlements and applauds the manner in which many Latin American courts have uncompromisingly enforced programmatic guaranties in the last decade or so. Part IV analyzes various widely available procedures for the vindication of rights, including the writ of protection or security (recurso de amparo, mandado de segurança), unconstitutionality actions, and collective suits. It argues, generally, that a concrete understanding of substantive rights requires a basic appreciation of their procedural dimension and, specifically, that the legal systems in question have most conspicuously converged and progressed in the processes through which they implement such claims.
Thereafter, Part V considers international guaranties. The interaction between domestic and transnational rights has become extremely intense in Latin America, as well as almost everywhere else. The study of the former kind of entitlements must therefore take the latter into account. In particular, virtually all countries in this vast territory have signed the American Convention on Human Rights and have accepted the compulsory jurisdiction of the Inter-American Court. The treaty is steadily turning into the functional equivalent of a constitution for all of Latin America.6 The individual provisions, along with their official construal, invariably operate not just as international law, but additionally as a paramount component of the national legal orders.
Latin America has made extraordinary headway on all of these fronts precisely as it has tried to tackle specific problems related to the recognition of rights. First, it has often rendered social-welfare entitlements constitutionally enforceable in response to the political and administrative authorities’ flagrant disregard of the people’s basic needs. Second, the special procedures under assessment have emerged, in great part, to compensate for the shortcomings of ordinary process. Third, international guaranties have attained prominence mostly due to the crass inefficacy of domestic entitlements in the face of unspeakable outrages against human dignity.
Curiously, Latin American societies have increasingly turned to judge-centered solutions. They have apparently discovered the potential of judicial structural reform half a century after their northern neighbor. Against a civil law background, however, this turn has occurred particularly unexpectedly and with a unique flavor. Latin Americans have blazed their own trail not only in empowering the judiciary, but also, in setting its bounds and recognizing its limitations.
In Part VI, the paper shifts gears rather drastically and examines systematic complications that the pursuit of legal entitlements in the region has at times encountered. It notes that these guaranties, along with other juridical precepts, sporadically come to naught due to the precariousness of the rule of law. This predicament might hinder any significant progress towards a brighter future in this area. For instance, the previously mentioned victories could prove to be short lived within such an environment. Beyond adopting new measures or punishing violators more severely, Latin American countries must succeed in the unlikely task of changing the underlying culture. They must enhance the legitimacy of legal norms across the board by renewing their commitment to democracy, as well as to other ideals, such as the rule of law, personal freedom, and (above all) solidarity.
This last section explores these issues and closes with two concessions. First, even if it takes these enormous and improbable steps towards the institutionalization of the principle of legality and ensures the realization of legal entitlements, Latin America will not fully attain social justice. The vindication of rights plays a central, but only limited part in the fight against societal injustice. This battle demands a broader, as well as deeper, engagement, within and without the state, against inequity and marginalization.
Second, the quest for rights may, every now and then, actually prove to be counterproductive with respect to such an emancipatory struggle by reinforcing and perpetuating the very structures that create exclusion in the first place. This meta-critique, however, should neither content itself with such an observation nor stop at this initial, negative stage. It should instead strive to become dialectical and, as such, anticipate the supersession [Aufhebung]—namely, both the dissolution and the preservation—of its object. In other words, it should aim at a radical transformation of the current theory and praxis and move towards a new paradigm within which other strategies may complement and, if necessary, schew the assertion of legal entitlements in order to advance the more ambitious ethical cause. Despite the improbability of the ultimate objective, such a multilayered and relentless undertaking will undoubtedly do much good en route.
II. “What’s in a Name?”: A Family of Rights Regimes
Tú, paria en Cuba, solo y miserable,
puedes rugir con voz del Continente:
la sangre que te lleva en su corriente
es la misma en Bolivia, en Guatemala,
en Brasil, en Haití . . . .7
I will first explain what the expression “Latin America” covers for purposes of this article. The term technically refers to the former colonies of “Latin” nations, such as Spain, Portugal, and France. It became popular during the second half of the nineteenth century, as the French regime embraced it to sell the idea that all these territories belonged together and preferably under the rule of Napoléon III.8 France then not only had plans to expand its preponderance throughout the continent, but actually occupied Mexico from 1862 until 1867 and installed Archduke Maximilian of Austria as Emperor. Coincidentally, the Cinco de Mayo holiday commemorates a key, early victory in the protracted and ultimately successful Mexican resistance against the French occupation.9
Nowadays, however, the term “Latin America” usually means Iberian America and thus refers to the New World territories colonized by the nations that occupy the Iberian peninsula, i.e., Spain and Portugal. It rarely incorporates Francophone regions such as Haiti, Martinique, or Quebec. Ironically enough, the concept, which the French crown once propagated in order to amalgamate its areas of control in the Americas with those of other Latin nations, now ordinarily excludes France’s former possessions.
This paper deploys the term “Latin America” in this contemporary, albeit inaccurate, sense. It makes use of the more precise, but less current expression “Iberian America,” only intermittently. It thus seeks to maintain the former, as familiar and readily comprehensible, while gradually introducing the latter.
The piece focuses on Iberian American countries because, as partial cultural descendants of nations that share so much history, they evince considerable coherence in their conceptions of rights. Spain and Portugal did not simply constitute a single political legal unit during crucial and extended periods of time up to the seventeenth century, but also embraced some of the same sources of law, most notably the Fuero Juzgo and the Siete Partidas, until the nineteenth century.10 Former Spanish and Portuguese colonies therefore converged legally during colonial times and frequently developed their law under the influence of each other after independence.11 They certainly overlap with countries formerly colonized by France more so than they do with Anglo-American nations; yet undoubtedly less than they do with each other. For instance, some of the key legal institutions, such as the writ of protection (or amparo), prevail in the Iberian American realm,12 but not in its Franco-American counterpart.
Latin American rights schemes bear to each other a family resemblance, in the sense of Wittgenstein.13 In other words, they do not have a common element or set thereof, but rather interrelate with each other in a complex manner. They present a “complicated network of similarities overlapping and criss-crossing: sometimes overall similarities, sometimes similarities of detail.”14 One of these regimes may, for example, resemble most others in constitutionally guaranteeing a sound education, but may differ from them in its rejection of the right to a healthy environment. A few others of these systems may similarly reject the latter entitlement, as well as the former.
Rights cultures in Iberian America generally coincide not only in what they share with each other, but also in what distinguishes them from their counterpart north of the border. To a great extent, this difference stems from the fact that the countries in the region belong to the civil law tradition, while the United States exists within the common law universe. Nonetheless, Iberian American legal orders diverge from the U.S. model specifically, even on substantive and procedural matters that bring them closer to other common law jurisdictions. Hence, they typically reject the death penalty, civil juries, and contingency fees, while embracing constitutional social-welfare entitlements, international human rights, abstract judicial review, and the “English rule” on attorney’s fees. Latin American nations have kept considerable distance from the United States partly as a reaction against the overwhelming U.S. hegemony in so many other areas of life.