Law and Democracy in Latin America

Informal Justice

Some communities, especially rural and indigenous peoples, have traditionally been excluded from the legal order in Latin America. We read a little of this in O'Donnell's "brown areas" article. Moreover, indigenous communities sometimes lay claim to rights that predate the state and its formal structures, may contradict the formal rules, and may be more suited to their culture, economy, and lifestyle. This has led to demands for an informal legal order to take the place of the often non-existent or de-legitimized formal legal order. Constitutions have been amended to recognize indigenous law as a source of rights and obligations; para-state organizations like the Rondas Campesinas or Rural Patrols have sprung up to fight crime in rural areas; neighborhood associations adjudicate property disputes.

Do these informal legal orders create more democracy by extending citizenship to otherwise excluded groups, or are they dangerous for democracy? Do they threaten liberal democracy by creating zones of exception to liberal democratic rights? On the other hand, what are citizens supposed to do when the State is unable to carry its formal legal system and social order to every community? If the State structure is absent or state rules are incompatible with a community's sense of justice, how should social order be enforced? Finally, how do we respond to communities that claim they have the right to a legal order that pre-dates the modern state and has more legitimacy? How do we feel about multiculturalism and parallel legal orders within the same country?

In this unit we will read about parallel justice systems that try, convict, and punish offenders. We will read about the demands for indigenous law, and about presumed offenders being lynched by crowds in Mexico, or about "vigilante" justice in Guatemala. This is a complicated issue, which requires us to balance legitimate demands for social order, security, and cultural preservation against the universalizing claims of a liberal democratic rights structure. How should we deal with this issue?

The text by Peeler reviews the variation in identity-based politics and mobilization in Latin America. The text by Van Cott helps explain how indigenous and rural legal practices emerged, and how they relate to the State's formal justice system. The text by Godoy analyzes informal justice in terms of an "effort by embattled communities to reassert their autonomy after decades of repeated assault by state armies, local elites, the globalized economy, and other adversaries." We have also included some newspaper articles that exemplify some of the problems we deal with in this unit. Our goal is to acquire a nuanced understanding of these informal justice practices, recognizing that they may meet legitimate needs, taking into account their deep roots and abiding legitimacy, without losing sight of the problems they pose for democracy and democratic legal systems.

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