Volume 43 | Number 2 Spring 2008
VI. Dysfunctions in the Rights Culture: A Walk on the Wild Side
Toda coerência é, no mínimo, suspeita.294
Alongside the streaks of light, portentous shadows run through this picture. In particular, the implementation of these guaranties has given rise to numerous difficulties. Despite many prodigious victories, political and legal institutions have all too often failed to understand second- and third-generation rights as requiring the government to commit to specific, long-term programs, rather than merely posturing. Moreover, time and again, the innovative procedural mechanisms operate in an inefficient manner. For instance, many jurisdictions require endless adjudication of the same issue from one protection petition to the next, impose excessive restrictions on unconstitutionality actions, and do not allow individuals to bring collective suits. Finally, the main Inter-American organs responsible for human rights have received scant support from the Organization of American States in enforcing their determinations.
Beyond these challenges, which demand enormous changes in legal structure and culture, Iberian American societies have faced a more basic challenge. Now and again, they have fallen prey to widespread lawlessness (non-droit). They have frequently tolerated a yawning gap between legal norm and legal reality—that is, between the law on the books and the law in practice. In fact, some scholars have identified this systematic violation of the rule of law as characteristic of Latin American law.295
This unfortunate phenomenon has, in fact, become part of the local folklore and has fueled numerous jokes over the years, such as the following:
A not particularly pious individual dies and, thereupon, goes straight to hell. The devil is in a good mood and allows him to choose between a Puerto Rican and a German inferno. The man opts for the latter, hoping for first-world infrastructure and organization. When he finally arrives at his destination, the on-site manager informs him that he will have to work almost uninterruptedly and that, every hour on the hour, a truck will drive by, loaded with manure, which several workers will shovel all over him, as well as over other lost souls, while whipping anyone they see lazing off. Shortly thereafter, he confirms that everything runs exactly as described by the boss. After a few eternities of this horrible routine, he becomes curious and requests permission to visit the Puerto Rican underworld for a day. Lucifer accedes and the fellow begins his tour. He encounters masses of people singing, dancing, drinking, partying, hugging, relaxing, and having a good time. After several hours, he approaches a passer-by and asks her whether he is actually in hell. She reassures him: “Yes, sir, Puerto Rican hell.” He then explains that he comes from German hell and details what the rules are like there. “Here the rules are the same,” the woman responds, “yet sometimes the truck is out of service, sometimes the dung has run out, sometimes the employees are on strike, and ultimately nothing ever happens.”
Descriptions of the legality deficit in Latin America often sound as extreme as this story. Some theorists and lawyers have even made a career out of arguing that legal norms invariably command no respect whatsoever and that violators can always escape sanctions rather cheaply. In fact, the extent to which people and institutions honor the rule of law varies enormously among and within the various countries in the region.296 Moreover, even in the most anarchistic contexts, individuals occasionally confront most unpleasant surprises when they try to purchase immunity for their legal outrages.
While presently not as pervasive or severe as in the past, the rule of law problem persists and intermittently threatens the vindication of rights, as well as the specific accomplishments analyzed in this article. This section therefore explores the issue, though not by pointing at particular instances or by suggesting how the legal system might respond. This piece has already examined cases in which political or juridical institutions have failed to do justice to constitutionally or statutorily guaranteed entitlements and has repeatedly shown how individuals, non-governmental organizations, autonomous state entities such as the public ministry, domestic courts, and international adjudicators might jointly and separately compel compliance. The discussion now acknowledges that these responses will not by themselves solve the predicament in question and, accordingly, looks for underlying causes and broader solutions.
This Part differs from the preceding ones not only in that it focuses on the vices rather than the virtues of Latin American rights praxis, but also in that it entertains matters of law and politics at a rather general and theoretical level. It does so in order to uncover the roots of the difficulties under consideration and to search for more comprehensive and permanent answers. Ineluctably, the advanced reflections only launch the debate and in no way purport to settle it.
Whenever a community systematically disregards the law, it usually faces a situation in which legal norms themselves lack legitimacy.297 This deficiency at times responds to the absence of a well-functioning democracy. When dictatorships pervaded in Iberian America, for instance, legal precepts expressed heteronomy and therefore intrinsically inspired minimal respect within the population, as well as within the state.298
Of course, democratic institutions do not necessarily guarantee the rule of law either.299 Once again, Latin America provides a case in point. Since the late 1980s, the region has generally embraced democracy. The illegality crisis may have abated somewhat as a consequence; yet it has by no means completely disappeared. The explanation for the persistence of the problem lies partly in the fact that most Latin American countries have made only a formal, not a substantive, commitment to democracy. They have merely gone through the motions and have not allowed real autonomy to flourish.
An overly instrumental understanding of politics has frequently prevailed. Political actors have, accordingly, played the democracy game strategically, instead of participating in genuine democratic interaction. They have formed tactical alliances and, when victorious, they have divided up the spoils of war with their allies. They have undertaken grand propagandistic drives, often devoid of real content, to capture votes, both in the electorate and in the legislature. In the end, the societies in question, like many of their counterparts across the planet, have experienced not a real development, but instead a trivialization of the democratic process.
Consequently, private citizens have had a rather passive role. They have participated only intermittently, such as when an election or referendum has taken place. At most other times, they have hibernated politically. Evidently, politicians have spent enormous amounts of energy and money to obtain popular support during the electoral season. Nonetheless, they have focused more on manipulating than on engaging the electorate.
Under these circumstances, many people both within and without the establishment have maintained their pre-democratic skepticism and sometimes even their cynicism vis-à-vis the law that their political institutions generate. As a result, constitutional as well as statutory rights have not fully delivered on their promise. They often shine in the texts of law, but fade in the real world. The wonderful accomplishments previously referenced remain somewhat exceptional.
In order to escape this quagmire, Latin America—along with much of the rest of the globe—must renew and radicalize its commitment to democracy. Specifically, it must overhaul the instrumental understanding of politics in favor of a more reflexive one.300 In other words, individuals must visualize their political activity as an end in itself. They must approach democratic engagement as an ongoing process through which the community exists as such and gives itself the law by which it lives.301 This collective effort towards autonomy may take a multiplicity of forms: dialogue, argument, self-definition, deliberation, negotiation, emotional outburst, bonding, inner rivalry, as well as gamesmanship.302 Thus, politics should transcend mere strategizing, and political precepts should map out not an obstacle course, but an intrinsically meaningful existential space, within which the community becomes its own master.303
From this vantage point, the political world would encompass all citizens, not just politicians. Civil society would profile prominently. The citizenry would no longer be simply a source of electoral reinforcement, but would become, through its civic organizations, an immanent presence in politics. It would bring forth initiatives, ideas, and criticisms. It might, depending on the issue, work alongside, against, or independently of its representatives. It would, in any case, be an integral part of the communal self-legislation tour de force.
Such a radical transformation would require numerous complex and long-term measures. It would call for a reduction in the influence of money through limited and mostly governmental funding of campaigns and through restrictions on the extent to which the winners could reward their supporters with employment, contracts, or access. The public sphere would also have to become stronger, through, for example, government subsidies for private groups and initiatives. In addition, education would have to improve in order to empower all individuals not only politically, but also socially. Finally, international institutions would have to emerge to monitor both the integrity of vote tallying and the fundamental fairness of the antecedent deliberation.
The legitimacy of the law rides not only on the extent to which a community fulfills its democratic aspirations. It also hinges on other ideals, such as solidarity, personal liberty, and the rule of law itself. Each of these categories has a corresponding guiding principle, antithesis, and conception of the state. In the name of solidarity, citizens embrace equality as a norm and seek to reduce inequality through a social state.304 On behalf of personal liberty, they adhere to the precepts of liberalism and forestall totalitarianism by establishing liberal government.305 In pursuit of the rule of law, they uphold legality and minimize arbitrariness by means of a legalist regime.306 Figure 1 schematizes all of these dimensions of the notion of legitimacy.
Figure 1. Dimensions of Legitimacy
[for full table, see the .pdf file]
Because an elaboration of the details of this complex conceptual scheme would outrun the limits of the present work, I will simply make two observations. First, the claim that the principle of legitimacy bears on that of legality and that the latter affects the former is not circular. It simply expresses the idea that the allegiance to the laws in place usually depends on how legitimate they are, which, in turn, rides on the prevalence of the rule of law, as well as on other factors, such as the solidity of democracy. For instance, people will tend to comply with an income redistribution statute insofar as social or legal mechanisms exist that generally guarantee compliance and to the extent that the enactment took place democratically.
Second, Iberian American societies have most conspicuously failed to commit to true solidarity. They have distributed opportunities, wealth, and power extremely unequally and have fallen far short of establishing a social state. The bare-bones welfare system that emerged throughout the twentieth century collapsed in the neo-liberal euphoria of the 1990s. The current turn to the left throughout the region stems in part from (and constitutes a reaction to) this development. The leftist governments in Argentina, Bolivia, Brazil, Chile, Nicaragua, Peru, Uruguay, and Venezuela now face the challenge of making equality a collective priority, while upholding autonomy, liberalism, and legality. They must, in other words, simultaneously advance solidarity, democracy, personal freedoms, and the rule of law as well as erect a social, democratic, liberal, and legalistic state. The underlying communities must, accordingly, radically reduce inequality without degenerating towards heteronomy, totalitarianism, and anomie. I will certainly not risk a prediction on the prospects of Latin America embarking on and succeeding at such a mighty undertaking.
Insofar as Iberian American nations evolve towards authentic democracy, solidarity, personal freedom, and the rule of law along these lines, they will increase the respectability of enacted laws and deepen their commitment to the principle of legality. While they will clearly never attain utopia, they might at least end up taking legal entitlements more seriously and increasing the likelihood of triumphs such as those discussed earlier. While the underlying ideal remains immensely remote, however, the struggle for rights will continue to unfold arduously, uncertainly, nonlinearly, and disappointingly.
Even if Latin Americans make reasonable progress in this endeavor and consolidate their rights culture, they will not automatically enter the realm of ends. In fact, the full realization of social justice requires more than the vindication of rights. It also demands profound alterations in the distribution of respect, influence, and privilege, and even in the mode of production of goods and services. Such a radical transformation will take concerted and broad-based action in the world of politics, as well as in civil society. The enforcement of rights within legal and political institutions, or even outside the state, may certainly contribute to this effort, but by no means will it play the whole part.
For example, indigent HIV/AIDS patients should undoubtedly fight for their constitutional guaranties and thus secure not only adequate care and medication for themselves, but also a comprehensive treatment and prevention plan for the entire citizenry. Nonetheless, they should additionally seek to shake up popular attitudes towards homosexuals, the disease, and the poor. More fundamentally, they should press for change in societal and economic life so as to attenuate marginalization and reduce their own vulnerability in the face of almost any kind of adversity. As their cause broadens, it will gradually become that of all victims of exclusion and that of the community as a whole.
These observations underscore the fact that battling exclusively for legal entitlements leads nowhere. The battle must be part of a larger utopian campaign to make the norms of collective interaction more legitimate and to institute a truly democratic, social, liberal, and legalist state or, actually, society. Realizing the insufficiency of rights may be the true “beginning of wisdom.”307
Some commentators have criticized rights not only as insufficient, but also as detrimental to the quest for social justice. The gist of this objection is that when social outcasts claim their rights, they recognize and strengthen the very state or international framework that makes their subjugation possible. They may receive some benefits, but they end up perpetuating their condition. This criticism, which takes infinitely different forms and levels of complexity, goes back at least to Karl Marx.308 It has had many relatively recent reincarnations and deserves careful examination, far beyond the quick comments that it will draw from this concluding section.
The remonstration in question culminates the critique of rights fetishism: People need genuine emancipation, yet they instead pursue an assortment of entitlements. They fail to appreciate that the latter essentially diverges from, often fails to deliver, and sometimes even hinders the former. Enlightenment and liberation will come about only by overcoming the mystifying obsession with rights.
This line of reasoning has considerable appeal, particularly in certain contexts. For instance, one might contend that the adoption of the 1991 Constitution, the institution of the Constitutional Court, and the subsequent rights revolution in Colombia have ultimately worked to the advantage of the elite and to the disadvantage of the underclass. The traditionally dispossessed population has secured many entitlements, but in the process, the upper crust has solidified its position of domination and the space for challenging basic or systemic inequalities seems to have diminished. Progressive movements now tend to work within—rather than against— the system. Even reactionary groups, which viscerally oppose any wealth redistribution or relinquishment of their privileges, generally accept—out of self-interest— the constitutional developments of the last fifteen years.
While this concrete situation admits very different interpretations, it does seem to reflect, at least in part, the underlying predicament. Nevertheless, it invites the critique to transcend sheer negativity and become dialectical by superseding (in the sense of aufheben) the notion of rights. Accordingly, critics should overcome as well as preserve that concept; they should transform it without completely eliminating it. They should call for the implementation of entitlements through a larger, revolutionary effort on behalf of social justice. This new critical approach would view rights more expansively—invoking them both within and against the state apparatus or the international order—and also, more tentatively—discarding them when they become counterproductive. It would thus arrive, perhaps, at wisdom itself.
VII. Coda and Flashback
que todo el mundo sepa
que el sur también existe.310
After such a long journey, this section simply takes stock. It describes the argumentative path and quickly assesses the conclusions. It ends with some speculation on the work ahead.
Following a detailed introduction, Part II defined the term “Latin America” for purposes of the discussion and restricted the scope of attention to Iberian America. Part III launched the argumentation itself. It specifically illustrated how Latin American legal systems have not only unanimously affirmed programmatic rights, but also witnessed extremely vigorous judicial enforcement of these entitlements. Thereafter, Part IV demonstrated how Iberian American jurisdictions have converged on a most creative set of procedural mechanisms—such as the writ of protection or security, unconstitutional actions, and collective suits—for the vindication of fundamental guaranties. Part V showed how the countries in the region have simultaneously and similarly embraced the internationalization of individual and collective liberties.
Part VI radically shifted both the content of the discussion and the level of the analysis. It specifically explored potential threats to, as well as the limitations of, the realization of rights in Latin America from a general and rather theoretical standpoint. The instability of the rule of law could undermine the referenced accomplishments. Consequently, Iberian American nations must, over the long term, augment the legitimacy of their laws by renewing their commitment to democracy, personal freedom, the rule of law itself, and (especially) solidarity. Even if they succeed in this complicated and unlikely venture to secure the enforceability of entitlements, they will have to take other steps in addition to, as well as in substitution of, the pursuit of rights in order to attain social justice.
In the process of telling this story, the article has explicitly made crucial and universally relevant conceptual moves. It has proceeded both descriptively and normatively, taking legal reality in its present form and imagining a possible transformation on the basis of a series of current positive trends. The piece has also approached rights in a comprehensive, rather than compartmentalized, manner. Accordingly, it has construed positive, procedural, and international entitlements in conjunction with their negative, substantive, and domestic counterparts, cautioning that deliberation on the latter subset, decoupled from the former, breeds distortion and confusion. Finally, it has contemplated not only the functions, but also the malfunctions and dysfunctions of law, with an eye to deciphering the perils that legal systems and, particularly, reform proposals face.
This project invites further research on the extent, the mechanics, and the diversity of the developments under consideration. It also seeks to provoke further reflection on broader menaces to the vindication of rights, as well as to the struggle against subordination. Finally, the paper starts a theoretical debate on reconstructive approaches to law, on the advantages of interpreting entitlements comprehensively, and on the need to consider “the good, the bad, and the ugly” when thinking about rights.
Latin Americans have made remarkable progress of late in realizing the guaranties that their constitutions establish. They must continue and intensify this effort by radically transforming themselves and their societies. Only then will they “have, for once and for all, a second chance on the face of the earth.”311
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Footnotes
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