55 U. Fl. L. Rev. 1 (2003)

Transcription

Florida Law Review
Founded 1948
Formerly
University of Florida Law Review
VOLUME 55
JANUARY 2003
NUMBER 1
CLUSTER I
LATCRITICAL ENCOUNTERS WITH CULTURE, IN NORTHSOUTH FRAMEWORKS
Pedro A. Malavet*
I.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II.
THE CONFERENCE CONTEXTS: THE ARTICULATION
AND THEORETICAL PERFORMANCE OF LATCRIT . . . . . . . . . . . . . 6
A. The Opening Roundtable . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. Plenary Panel I: Implications of Indigenous Activism . . . . 18
C. The TWAIL/NAIL Concurrent Panel . . . . . . . . . . . . . . . . . . 24
III.
CONTINUING LATCRITICAL ENCOUNTERS WITH CULTURE
IN COMPARATIVE NORTH-SOUTH FRAMEWORKS . . . . . . . . . . . 31
IV.
CONCLUSION: BIENVENIDAS/OS, AMIGAS/OS
AMERICANAS/OS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
I. INTRODUCTION
Latina/o Critical Race Theory (LatCrit) is an academic enterprise that
owes much to prior theoretical schools,1 but it is most especially and
* Associate Professor, The University of Florida Fredric G. Levin College of Law; J.D.,
LL.M., Georgetown. I am grateful to the Levin College of Law for allowing me to use a Summer
Research Grant and part of a sabbatical to work on this project. I would like to thank Berta
Esperanza Hernández-Truyol, Guadalupe T. Luna, Ediberto Román, and Kevin R. Johnson for their
helpful comments on an earlier draft of this Essay.
1. “LatCrit theory follows and in some ways stems from the historical experience with
Critical Legal Studies, Feminist Legal Theory, Critical Race Theory, Critical Race Feminism and
Queer Legal Theory.” Francisco Valdés, Poised at the Cusp: LatCrit Theory, Outsider
Jurisprudence and Latina/o Self-Empowerment, 2 HARV. LATINO L. REV. 1, 4-5 (1997). I would
1
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clearly a re/orientation of Critical Race Theory (CRT).2 LatCrit is outsider
jurisprudence,3 often postmodern4 in style, and mostly, though not
exclusively, pursued by academics of color who seek to center the Latina/o
experience5 in the legal mainstream of the United States.6 The principal
add that Critical Legal Studies (CLS) was the heir to American Legal Realism and the unwitting
catalyst for Critical Race Theory (CRT). See generally AMERICAN LEGAL REALISM (William W.
Fisher, III et al. eds., 1993); MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES (1987)
(providing background of CLS); Symposium: Critical Legal Studies: Roll Over Beethoven, 36
STAN. L. REV. 1 (1984) (describing the movement and presenting examples of its scholarship);
Cornel West, Foreword, in CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE
MOVEMENT xi, xxii-xxvii (Kimberlé Crenshaw et al. eds., 1995) [hereinafter THE KEY WRITINGS]
(outlining background on initial relationship and eventual split of CLS and CRT).
2. While definitions are often dangerous, if not impossible, see Francisco Valdes, Under
Construction: LatCrit Consciousness, Community, and Theory, 85 CAL. L. REV. 1087, 1089 n.2
(1997), reprinted in 10 LA RAZA L.J. 1, 3 n.2 (1998) (noting that defining LatCrit is difficult), I like
this one:
Critical Race Theory is the most exciting development in contemporary legal
studies. This comprehensive movement in thought and life—created primarily,
though not exclusively, by progressive intellectuals of color—compels us to
confront critically the most explosive issue in American civilization: the historical
centrality and complicity of law in upholding white supremacy (and concomitant
hierarchies of gender, class, and sexual orientation).
THE KEY WRITINGS supra note 1, at xi; see also Angela P. Harris, Foreword: The Jurisprudence
of Reconstruction, 82 CAL. L. REV. 741 (1994) (providing introduction to a symposium devoted
entirely and specifically to CRT).
3. See Mari J. Matsuda, Legal Storytelling: Public Response to Racist Speech: Considering
the Victim’s Story, 87 MICH. L. REV. 2320, 2323-24 (1989) (discussing how “outsider
jurisprudence” is scholarship produced by and focused on outsider perspectives, communities, and
interests, i.e., going beyond the dominant group). Other forms of outsider jurisprudence include
Asian-American Legal Theory, Critical Race Feminism, Feminist Legal Theory, and Queer Legal
Theory.
4. Although I find his treatment of postmodernism overly harsh, there are some helpful
descriptions in David West’s essay, The Contribution of Continental Philosophy, in A COMPANION
TO CONTEMPORARY POLITICAL PHILOSOPHY 39 (Robert E. Goodin & Phillip Pettit eds., 1993):
Postmodernism proposes a last desperate leap from the fateful complex of
Western history. Anti-humanism, with its critique of the subject and genealogical
history, has shaken the pillars of Western political thought. Heidegger’s
“dismantling” of metaphysics and Derrida’s deconstruction carry the corrosion of
critique to the fundamental conceptual foundations of modernity.
Id. at 64. West adds later in the essay: “Postmodernists seek to disrupt all forms of discourse, and
particularly forms of political discourse, which might encourage the totalitarian suppression of
diversity.” Id. at 65.
5. LatCrit has and will continue to have a fundamental intellectual link to CRT, but it
represents a re/orientation of CRT to “center” outsider groups other than African Americans. The
realization of the need for a separate space for this change in focus was not an easy process. While
2003]
THE SIXTH ANNUAL LATCRIT CONFERENCE
3
products of the LatCrit enterprise, both oral and written, are mostly
associated with the annual LatCrit conferences.7 This Symposium issue
I am not suggesting that there is a monolithic CRT experience, or that the CRT workshop (the
annual meeting of Race Crits) either represented the entire field of CRT, or that it lacked the
capacity to grow, the dynamics of the workshop unfortunately appear to have generated a sense of
exclusion(s). See Valdés, Poised at the Cusp, supra note 1, at 3 n.5 (noting that the CRT workshop
in 1995 had about forty participants, only two of which were Latina/o, Trina Grillo and Frank
Valdés); Comments of Sumi K. Cho, Panel: Multiplicities and Intersectionalities: Exploring
LatCrit Diveristies: Essential Politics, 2 HARV. LATINO L. REV. 433, 454 n.44 (1997) (condemning
the “ritualistic ‘violence’ against gay and lesbian race crits in recent years at the [CRT] summer
workshop”); see also Stephanie L. Phillips, Mapping Intellectual/Political Foundations and Future
Self Critical Directions: The Convergence of the Critical Race Theory Workshop with LatCrit
Theory: A History, 53 U. MIAMI L. REV. 1247, 1249 n.4 (1999) (conceding, as a member of the
original workshop organizing committee, that, despite best of intentions, the workshop “replicat[ed]
troubling hierarchies . . . in particular, the privileging of African American experience and of
heterosexuality”). See generally Phillips, supra (describing history of the CRT workshop;
explaining its “invitation only” policy, and suggesting that the workshop and LatCrit Conference
had similar memberships and intellectual goals, and that they could and should be coordinated).
6. Francisco Valdés, one of the founders of this new movement, explains:
LatCrit theory is an infant discourse that responds primarily to the long historical
presence and general sociolegal invisibility of Latinas/os in the lands now known
as the United States. As with other traditionally subordinated communities within
this country, the combination of longstanding occupancy and persistent
marginality fueled an increasing sense of frustration among contemporary
Latina/o legal scholars, some of whom already identified with Critical Race
Theory (CRT) and participated in its gatherings. Like other genres of critical legal
scholarship, LatCrit literature tends to reflect the conditions of its production as
well as the conditioning of its early and vocal adherents.
Francisco Valdés, Theorizing “OutCrit” Theories: Comparative Antisubordination Experience and
Subordination Vision as Jurisprudential Method, (citations omitted), available at
http://personal.law.miami.edu/~fvaldes/latcrit/overview.html (last visited Oct. 12, 2002).
7. Naturally, this Symposium issue is the most recent installment in LatCrit scholarly
discourse, Symposium, LatCrit VI: Latinas/os and the Americas: Centering North-South
Frameworks in LatCrit Theory, 55 FLA. L. REV. 1 (2003); but there has been a symposium issue
for each of the annual LatCrit conferences. See generally Symposium, LatCrit V: Class in LatCrit:
Theory and Praxis in a World of Economic Inequality, 78 DENV. U. L. REV. 467 (2001);
Symposium, LatCrit IV: Rotating Centers, Expanding Frontiers: LatCrit Theory and Marginal
Intersections, 23 U.C. DAVIS L. REV. 751 (2000); Symposium, LatCrit III: Comparative Latinas/os:
Identity, Law and Policy in LatCrit Theory, 53 U. MIAMI L. REV. 575 (1999); Symposium, LatCrit
II: Difference, Solidarity and Law: Building Latina/o Communities Through LatCrit Theory, 19
CHICANO-LATINO L. REV. 1 (1998); Symposium, LatCrit I: LatCrit Theory: Naming and Launching
a New Discourse of Critical Legal Scholarship, 2 HARV. LATINO L. REV. 1 (1997); Colloquium,
LatCrit: Representing Latina/o Communities: Critical Race Theory and Practice, 9 LA RAZA L.J.
1 (1996); Colloquium, International Law, Human Rights and LatCrit Theory, 28 U. MIAMI INTERAM. L. REV. 177 (1996); see also Joint Symposium, LatCrit Theory: Latinas/os and the Law, 85
CAL. L. REV. 1087 (1997), reprinted in 10 LA RAZA L.J. 1 (1998) (noting that this was a “standalone” symposium, not directly connected to one of the LatCrit conferences).
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partly memorializes the Sixth Annual LatCrit Conference, which
represented an important milestone because it reached out and empowered
the voices of the Southern part of our hemisphere.8 The essays in the
cluster addressed in this Essay are the product of this cooperative process
of giving voice to the native9 scholars from the Southern Americas, while
seeking to expand our voice within the North American academy.
The initial challenge in writing this cluster introduction was to
articulate the thread of unity in the themes covered by the authors and the
8. The Substantive Program Outline described it as follows:
Saludos! This year, the LatCrit Annual Conference will take the long
foreshadowed step of affirmatively and self-consciously exploring the links that
bind Latina/o Communities in the United States to their homeland societies,
cultures and economies and how the impact of such globalization informs an
articulation of LatCrit theory and discourse. As many LatCritters have repeatedly
commented, the articulation of an inclusive vision of intra-and intergroup justice
has for too long been paralyzed by the conflation of citizenship and geography in
popular discourse and legal theory. These links help to explain why Latinas/os in
the United States constitute transnational groups and communities, typically
retaining strong material connections to, and cultural identifications with, their
homelands’ traditions, issues, concerns, hopes and aspirations. These links, while
oftentimes noted in prior LatCrit programs and texts, have yet to be explicitly
thematized and explored in a programmatic way; this year, we take up this
pending challenge collectively.
The LatCrit VI planning committee has made an affirmative effort to structure
the program to center specifically inter-American approaches to social and legal
issues. Our hope is to undertake some comparative critical studies of “domestic”
issues and their counterparts throughout the Americas, using one or more of the
following five lenses or categories which have been employed in prior years’
conference themes: (1) Latina/o pan-ethnicity and multiracialism, including intraLatina/o issues of sameness and difference as well as non-Hispanic Latinas/os,
including mestizaje, Indianess and blackness in Latina/o communities and
societies; (2) identity—religion, culture, gender, sexuality and heteropatriarchy;
(3) immigrations, migrations, and citizenships; (4) coalition, democracy, and
community; (5) class and economic equity, including trade, labor, and
environment. The basic concept is to encourage critical inquiry of these five broad
areas in ways that illuminate and elucidate the North-South character of Latina/o
transnationality. Underscoring the inter/national nature of LatCrit theory to date,
this year’s conference planners generally hope to turn the gains and insights of the
past five years toward a better collective understanding of the diverse hemisphere
we share: the Americas.
Sixth Annual LatCrit Conference, Substantive Program Outline, at http://personal.law.miami.edu/
~fvaldes/latcrit/lcvidocs/lcvisubstantiveprogram.html (visited June 6, 2002) [hereinafter
Substantive Program Outline].
9. “Native” is used here to refer to people who are autochthonous to the Americas, not as
a reference to Native American, “Indian,” or indigenous identity. See also infra note 58 and
accompanying text.
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panels in which they initially presented their ideas during the Sixth Annual
LatCrit Conference. After all, they were located in different geographic
and, seemingly, different intellectual sites within the conference.10 But this
cluster of essays, individually and collectively, effectively captures the
overall theme of LatCrit VI: Latinas/os and the Americas: Centering
North-South Frameworks in LatCrit Theory.11 Specifically, every one of
the essays in this section focuses on Latin American legal systems and
cultures.12 The methodology may be theoretical or practical, philosophical
or sociological, legal or interdisciplinary, but all these works address the
challenges posed by the legal systems and cultures that co-exist within the
nations of Latin America in 21st century academic legal discourse.
This Essay will first discuss how the essays fit within or challenge the
themes of the specific roundtable, plenary, or workshop in which they
were presented. It will then locate the cluster within the present and the
future of LatCrit Theory generally, and LatCritical praxis13 in particular.
10. Hugo Rojas and Mauricio García-Villegas participated in the Opening Roundtable:
Encountering Latin America: Exploring the Parameters and Encountering Latin America:
Exploring the Parameters and Relevance of LatCrit Theory In and Through a Regional Rotation.
Susan Scafidi participated in Plenary Panel One: Implications of Indigenous Activism. Jorge
Esquirol and Michael Wallace Gordon participated in the third concurrent panel, titled
TWAIL/NAIL: Latin American Legal Theory.
11. See Substantive Program Outline, supra note 8.
12. “Culture” is used here to describe complex social constructs. The negative forms of
culture include the essentialized development of dominant ones, and the imposition of negative
stereotypes by the dominant culture on social outsiders. See infra notes 104-06 and accompanying
text. The positive forms of culture include communitarian, empowering self constructs. See infra
notes 107-09 and accompanying text.
13. “LatCritical” describes the LatCrit approach to legal theory. Francisco Valdés has written
about praxis in the LatCrit enterprise:
Following from the recognition that all legal scholarship is political is that LatCrit
scholars must conceive of ourselves as activists both within and outside our
institutions and professions. Time and again, the authors urge that praxis must be
integral to LatCrit projects because it ensures both the grounding and potency of
the theory. Praxis provides a framework for organizing our professional time,
energy and activities in holistic ways. Praxis, in short, can help cohere our roles
as teachers, scholars and activists. The proactive embrace of praxis as organic in
all areas of our professional lives thus emerges as elemental to the initial
conception of LatCrit theory. Praxis therefore serves as the second LatCrit
guidepost.
Valdés, supra note 1, at 53.
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II. THE CONFERENCE CONTEXTS: THE ARTICULATION AND
THEORETICAL PERFORMANCE OF LATCRIT
This part of the Essay will address each presentation, the specific
conference context(s) in which it was delivered, and how the essays
produced by the presenters develop these ideas.
A. The Opening Roundtable
Hugo Rojas and Mauricio García-Villegas participated in our opening
roundtable discussion: Encountering Latin America: Exploring the
Parameters and Relevance of LatCrit Theory In and Through a Regional
Rotation.14
14. This was described in the Substantive Program Outline as follows:
The focus of this opening discussion marks a new trajectory for the LatCrit
practice of rotating centers, by challenging inherited categories that would
otherwise map the world’s regions in racial terms. In this inherited framework, the
world is divided into racialized regions: Latin America is Hispanic, Africa is
Black, Europe and North America are White, and Asia is (no surprise) Asian. By
centering Latin America in LatCrit theory, this kick-off discussion seeks to
challenge these essentialist constructions. Latin America, like the United States,
and indeed, all regions of the world, is multiethnic, multilingual, multicultural,
and multiracial. It is inhabited by individuals and groups marked by differences
of gender, class, national origin, sexual orientation, and religion, as well as by the
historical articulations of white supremacy, colonialism, and the expansion of
international capitalist processes and social formations.
Against this background, the opening plenary explores how focusing LatCrit
antiessentialist, antisubordination perspectives on the particularities of Latin
American realities might inspire new theoretical insights and enable new
coalitional possibilities among subordinated groups, both within Latin America
and across other regions. How, for example, do questions of group identity and the
role of law in the production of inter-group justice map across the realities of
ongoing civil war, politicized military institutions, dictatorial cultural traditions,
an interconnected church and state, resurgent indigenous nations, imported
jurisprudence and civil law systems? How are these realities reflected in the
structure and substance of Latin American legal institutions and norms and, with
what implications for the process of social transformation? Put differently, what
does LatCrit theory have to offer Latin American legal scholars and social
activists, and conversely what do they offer LatCrit theory?
This opening plenary seeks to engage these important questions by convoking
a diverse group of legal scholars, educators, and social scientists from Colombia,
Cuba, Mexico and the United States to share their critical perspectives on the
realities confronting Latin America and their relevance to Latinas/os and other
outsider groups within the United States.
Substantive Program Outline, supra note 8.
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Mauricio García-Villegas, a Colombian-born and trained academic,
engages LatCrit in a critique of what he describes as the Legal
Consciousness Studies Movement,15 a subset of Law and Society.16
Professor García-Villegas uses a linguistic style and structure that to the
United States observer might appear to be related to university disciplines
other than law. However, his writing must be contextualized in the
Colombian system of legal education, which is more analogous to our
undergraduate system of college education in methodology, if not
necessarily in content. Moreover, Colombia, like most Civil Law systems,
approaches legal education as a more interdisciplinary endeavor than the
traditional United States law school curriculum.17
Professor García-Villegas aims high, and thus purposely chooses
language that might be inaccessible in any other context. Reaching the
proper balance between the critical exploration of language and its
abuse—its use in hurtful and negative ways—is often a challenge, and
critical race scholars have often been accused of language abuse.18 While
the attacks on CRT all too often are essentialist19 attempts to silence
15. He explains that
[s]tudies of legal consciousness bring together, with variants, essential parts of
both the “Law and Society” and the critical traditions. From Law & Society they
have taken the idea that empirical research is essential to make sense of the way
that law functions in the society. From the critical tradition they have adopted the
aspiration that sociolegal studies should serve not only to describe how law
operates in society but also and above all to contribute to the transformation of
society and the defense of the excluded.
Mauricio García-Villegas, Symbolic Power Without Symbolic Violence?, 55 FLA. L. REV. 157
(2003).
16. The “Law and Society Association, founded in 1964, is a group of scholars from many
fields and countries, interested in the place of law in social, political, economic and cultural life.”
The Law and Society home page, at http://www.lawandsociety.org (last visited Oct. 12, 2002). For
a critical analysis of the Law and Society Movement, see Trubek, infra note 82.
17. See generally Richard J. Wilson, The New Legal Education in North and South America,
25 STAN. J. INT’L LAW 375 (1989) (containing a dated but still largely accurate description of legal
education in South American countries, including Colombia); THE CIVIL LAW TRADITION: EUROPE,
LATIN AMERICA AND EAST ASIA 841-91 ( John Henry Merryman et al. eds., 1994) (providing a brief
introduction to legal education in the civil law world generally) [hereinafter CIVIL LAW
TRADITION].
18. Compare Dennis W. Arrow, Pomobabble: Postmodern Newspeak and Constitutional
“Meaning” for the Uninitiated, 96 MICH. L. REV. 461 (1997), with Ronald J. Krotoszynski, Jr.,
Legal Scholarship at the Crossroads: On Farce, Tragedy, and Redemption, 77 TEX. L. REV. 321
(1998).
19. “Essentialism adopts the view that all members of a group are alike and share a common
‘essence.’” Cho, supra note 5, at 433 n.1. As it is used herein:
The concept of essentialism suggests that there is one legitimate, genuine
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different voices,20 the intentional misuse of language simply for the sake
of showing off or of being exclusionary can be hegemonic21 and, more
simply, ineffective.22 But, in the LatCrit context, deconstructionist
postmodern analysis, such as that undertaken by García-Villegas, clearly
demands a careful approach to language which allows scholars properly
to explore the hidden complexities of its subjects.23 The LatCrit use of
universal voice that speaks for all members of a group, thus assuming a
monolithic experience for all within the particular group—be it women, blacks,
latinas/os, Asians, etc. Feminists of color have been at the forefront of rejecting
essentialist approaches because they effect erasures of the multidimensional nature
of identities and also collapse multiple differences into a singular homogenized
experience.
Berta Esperanza Hernández-Truyol, Constructing LatCrit Theory: Diversity, Commonality, and
Identity: LatIndia II—Latinas/os, Natives, And Mestizajes—A LatCrit Navigation of Nuevos
Mundos, Nuevas Fronteras and Nuevas Teorías, 33 U.C. DAVIS L. REV. 851, 862 n.26 (2000)
(citations omitted); see also FEMINIST LEGAL THEORY: FOUNDATIONS 335 (D. Kelly Weisberg ed.,
1993) (discussing gender essentialism); Angela P. Harris, Race and Essentialism in Feminist Legal
Theory, 42 STAN. L. REV. 581, 588 (1990) (discussing gender and racial essentialism).
20. See Pedro A. Malavet, Performing LatCrit: Literature and the Arts as Antisubordination
Praxis: LatCrit Theory and Cultural Production: The Confessions of an Accidental Crit, 33 U.C.
DAVIS L. REV. 1293, 1297-1306 (2000) (discussing the debate over the use of narrative in legal
scholarship).
21. For example, abuse of language can be nothing more than a self-indulgent attempt to
develop a secret speech that sets your little clique apart, both in private and in public. In her critique
of the excesses of literary criticism, Barbara Christian explains the real dangers of such language
abuse:
For I feel that the new emphasis on literary critical theory is as hegemonic as the
world which it attacks. I see the language it creates as one which mystifies rather
than clarifies our condition, making it possible for a few people who know that
particular language to control the critical scene—that language surfaced,
interestingly enough, just when the literature of peoples of color, of black women,
of Latin Americans, of Africans began to move to “the center.”
Barbara Christian, The Race for the Theory, in MAKING FACE, MAKING SOUL: HACIENDO CARAS:
CREATIVE AND CRITICAL P ERSPECTIVES BY FEMINISTS OF COLOR 335, 338 (Gloria Anzaldúa ed.,
1990).
22. Here I refer to the forced use of overly complicated language simply for the sake of
making an exaggerated pseudo-intellectual display, rather than to write effective scholarship.
Barbara Christian again articulates the problem well: “And as a student of literature, I am appalled
by the sheer ugliness of the language, its lack of clarity, its unnecessarily complicated sentence
constructions, its lack of pleasurableness, its alienating quality. It is the kind of writing for which
composition teachers would give a freshman a resounding F.” Id. at 339.
23. For example, LatCrit scholarship challenges the traditional civil rights discourse in law
by thoroughly exploring the weaknesses of the Black/White binary paradigm of race. See Ian F.
Haney López, Race, Ethnicity, Erasure: The Salience of Race to LatCrit Theory, 85 CAL. L. REV.
1143 (1997), reprinted in 10 LA RAZA L.J. 57 (1998); Juan F. Perea, The Black/White Binary
Paradigm of Race: The “Normal Science” of American Racial Thought, 85 CAL. L. REV. 1213
2003]
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language in legal scholarship is thus exciting, intellectually stimulating,
and effective.24
García-Villegas acknowledges that his work is abstract to a level that
his “critique is not suitable to all authors interested in legal
consciousness.”25 However, in typical LatCrit form, García-Villegas
introduces a provocative theoretical paradigm that will enrich LatCrit
Theory. Using the language of postmodernism, Professor García-Villigas
explains how the Legal Consciousness Movement fails to adequately
account for the effects of structural power hegemonies within a particular
legal culture, thus undermining its practical effectiveness as a viable
theoretical school. Legal Consciousness Theory might be described as
Legal Realism from a different frame of reference: that of the client or
party, rather than that of the judge or attorney. The “client,” moreover, is
usually a marginalized person, an “other.”26
(1997), reprinted in 10 LA RAZA L.J. 127 (1998) [hereinafter Perea, The Black/White Binary
Paradigm of Race]; Juan F. Perea, Ethnicity and the Constitution: Beyond the Black and White
Binary Constitution, 36 WM. & MARY L. REV. 571 (1995). This challenge to the binary can be
traced back to the very first LatCrit colloquium in Puerto Rico. See generally Colloquium,
Representing Latina/o Communities: Critical Race Theory and Practice, 9 LA RAZA L.J. 1 (1996);
see also Robert S. Chang, The Nativist’s Dream of Return, 9 LA RAZA L.J. 55 (1996) (stating that
Asian-Americans do not fit within the “comfortable binary” of the Black/White paradigm of race);
Rachel F. Moran, Neither Black Nor White, 2 HARV. LATINO L. REV. 61 (1997) (finding that
Latinas/os are not adequately represented in American civil rights debate because they do not fit
within the paradigm); Neil Gotanda, “Other Non-Whites” in American Legal History: A Review
of Justice at War, 85 COLUM. L. REV. 1186, 1188 (1985) (book review) (explaining that
“foreignness” and the construction/imposition thereof establishes many U.S. citizens, especially
Asian-Americans and Latinas/os, as a permanent underclass); Deborah Ramirez, Forging A Latino
Identity, 9 LA RAZA L.J. 61, 63 (1996) (explaining a personal experience that required her to
challenge the paradigm in order to properly assist a local Latina/o community); Francisco Valdés,
Latina/o Ethnicities, Critical Race Theory, and Post-Identity Politics in Postmodern Legal Culture:
From Practices to Possibilities, 9 LA RAZA L.J. 1, 20-24 (1996) (discussing various authors’
challenges to the Black/White binary).
24. Of course, a demanding use of language is essential to critical scholarship. More
generally, mastering language is an essential skill for a lawyer or academic, and challenging the
language skills of any audience can have strong pedagogical effects. But teachers and scholars
should be offended by the notion that simple language is a sign of simple-mindedness. For example,
popular cultural narratives may sometimes be spoken in plain and simple language and are still
perfectly able to transmit complex ideas that constitute antisubordination praxis. (I do not mean to
imply that popular culture is always “plain and simple” in language. In fact, popular culture is
incredibly complex and textured. However, on occasion, the popular artist uses plain and simple
language to make very complex messages accessible to everyone in their community.)
Additionally, the capacity to present complex concepts in language that make them accessible to
students and to persons outside our field takes a great deal of talent. Moreover, making our work
accessible to uninitiated audiences is part of our educational mission and is essential to LatCrit
praxis.
25. García-Villegas, supra note 15, at 159.
26. In general, as used herein, “other” and being “othered” mean to be socially constructed
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García-Villegas provides an important warning about shifting the focus
of law too much towards the micro-level, and about the methodology of
symbolism. He explains that “the absence of a macrosociological lens
lessens the capacity to ‘see’ and analyze genuinely efficacious
emancipatory options for the excluded.”27 This, García-Villegas explains,
is the result of practical contradictions created by attempts within the
Legal Consciousness Movement to maintain theoretical coherence in its
use of the symbolic. This “exigency of theoretical coherence,”28 prevents
the Legal Consciousness theorists from leading us into effective legal
reform. The solution, García-Villegas suggests, is to develop a proper
balance between the “micro/macro terrain” presented by any complex
functioning society and nation. The symbolic theoretical vision of any
critical theory that aspires to effective praxis must also be able to produce
“a theory of the symbolic strategy as a political instrument, whether it be
of domination or of social emancipation.”29 García-Villegas’ work fits
within previous comparative legal discourse about the differences between
hortatory (exhortative) and prescriptive (compulsory or coercive) legal
systems.30 Additionally, Critical Race theorists long ago identified the
tension, and sometimes the disjunction, between theory and praxis.31
as “not normative.” See, e.g., Cathy J. Cohen, Straight Gay Politics: The Limits of an Ethnic Model
of Inclusion, in ETHNICITY AND GROUP RIGHTS 572, 580 (Will Kymlicka & Ian Shapiro eds., 1997).
Much of the material exclusion experienced by marginal groups is based on, or
justified by, ideological processes that define these groups as “other.” Thus,
marginalization occurs, in part, when some observable characteristic or
distinguishing behavior shared by a group of individuals is systematically used
within the larger society to signal the inferior and subordinate status of the group.
Id. (citing ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY (1963)).
However, I will also use the term “other” as a relative term. See infra note 111 and accompanying
text.
27. García-Villegas, supra note 15, at 187.
28. Id. at 188-89.
29. Id. at 189.
30. See, e.g., MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 5-8 (1987)
(indicating that classical Greek vision in which “the aim of law is to lead the citizens toward virtue,
to make them noble and wise,” comparing it to the U.S. and England where laws take the forms of
“prescriptions” intended to rule actual conduct rather than to persuade and educate subjects into
compliance therewith).
31. See Harris, supra note 2, at 751 (noting that there is a tension between the
deconstructionist theoretical bent of CRT that attacks entrenched power hegemonies, and the design
of an affirmative program of racial “emancipation” which she labels “reconstruction”); Harlon L.
Dalton, The Clouded Prism, 22 HARV. C.R.-C.L. L. REV. 435, 436-37 (1987) (discussing the split
between CLS practitioners and theorists); Robert L. Hayman, Jr., The Color of Tradition: Critical
Race Theory and Postmodern Constitutional Traditionalism, 30 HARV. C.R.-C.L. L. REV. 57, 69-70
(1995) (arguing postmodern theory cannot produce a reform project); Patricia J. Williams,
2003]
11
Accordingly, LatCrit Theory has always tried to ensure that its theoretical
work is capable of contributing to praxis.32 Therefore, García-Villegas’
work fits within the LatCrit enterprise, which seeks to empower the
marginalized through effective praxis, while maintaining a coherent
theoretical paradigm.
Hugo Rojas challenges the traditional construct of Chilean society as
representing a single mixed race and a homogeneous national culture.33
LatCrit has studied a similar racialized demand for assimilation into a
normative,34 homogeneous White culture in the United States.35 LatCrit
Alchemical Notes: Reconstructing Ideals From Deconstructed Rights, 22 HARV. C.R.-C.L. L. REV.
401, 404-06 (1987) (noting CLS’ rejection of rights makes reform difficult).
32. As discussed above, praxis is one of the essential guideposts of LatCrit Theory. See
Valdés, supra note 1 and accompanying text; see also Adrien Katherine Wing, Critical Race
Feminism and International Human Rights, 28 U. MIAMI INTER-AM. L. REV. 337, 341 (1996)
(“[W]hile [Critical Race Feminism] is concerned with theoretical frameworks, it is very much
centered on praxis and attempts to identify ways to empower women through law and other
disciplines.”).
33. Hugo Rojas, Stop Cultural Exclusions (in Chile)!: Reflections on the Principle of
Multiculturalism, 55 FLA. L. REV. 121 (2003).
34. Normative means the dominant societal paradigm, that is, what is considered “normal”
in a given sociological context. See Berta Esperanza Hernández-Truyol, Borders (En)gendered:
Normativities, Latinas and a LatCrit Paradigm, 72 N.Y.U. L. REV. 882, 891 (1997) (noting that
“knowledge is socially constructed,” therefore, the “normative paradigm’s dominance” defines
“normal”).
35. In the United States there is a legal and social mythology of two racial groups, Blacks and
Whites, which LatCrit has labeled the “Black/White binary paradigm of race.” See supra note 23.
Within the binary, Whiteness, and the privilege associated with it, implies full assimilation into the
U.S. body politic, and Blackness implies exclusion from the normative society. Moran, supra note
23, at 69 (arguing “Latinos receive the message that they are supposed to adapt to American life
as earlier generations of White ethnic immigrants did, [or] instead they will remain an isolated and
unassimilable population like Blacks”). In addition to fighting against the White supremacist nature
of the paradigm, LatCrit scholarship has studied and debated why Latinas/os are denied full
citizenship, despite our legal classification as White. See, e.g., Ian F. Haney Lopez, supra note 23
(examining U.S. legal and social racial categorizing, concluding that Latinas/os are legally
classified as White, but socially racialized as “other”); Ian F. Haney Lopez, Retaining Race: LatCrit
Theory and Mexican American Identity in Hernandez v. Texas, 2 HARV. LATINO L. REV. 279 (1997)
[hereinafter Lopez, Retaining Race] (responding to Professor Perea, arguing that Latinas/os are
denied full citizenship despite legal Whiteness because they are socially constructed as belonging
to an inferior non-White race); George A. Martinez, The Legal Construction of Race: MexicanAmericans and Whiteness, 2 HARV. LATINO L. REV. 321, 326-29 (1997) (noting that U.S. courts
recognized Mexicans as White for purposes of the naturalization laws—which only allowed Whites
to become U.S. citizens; census also classified Mexican Americans as White); Juan Perea, Five
Axioms in Search of Equality, 2 HARV. LATINO L. REV. 231 (1997) (arguing that Latinas/os are
excluded from full citizenship because of “ethnicity”) [hereinafter Perea, Five Axioms]; Perea, The
Black/White Binary Paradigm of Race, supra note 23 (arguing that Latinas/os are “racialized,”
leading to our marginalization). See also Kevin R. Johnson, “Melting Pot” or “Ring of Fire”?:
Assimilation and the Mexican-American Experience, 85 CAL. L. REV. 1259 (1997), reprinted in 10
LA RAZA L.J. 173 (1998) (positing that the U.S. myth of assimilation acts as a “ring of fire” that
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seeks to empower the “other” within all societies and challenges the
notions of an assimilationist culture that imposes a homogenized
normativity. Rojas does just that in the very specific Chilean context by
explaining the need for multicultural citizenship generally. But he is
specially concerned with the marginalization of indigenous peoples within
Chilean culture, and the accompanying deprivation of political rights
under the Chilean Constitution.36 Rojas once again brings into LatCrit
focus the distinction between imposed racialized37 constructs of cultural
citizenship38 and legal/political citizenship.39
must burn away “non-U.S.” cultural identity, and resistance thereto makes Latinas/os
unassimilable); Rachael E. Moran, What If Latinos Really Mattered in the Public Policy Debate?,
85 CAL. L. REV. 1315, 1344 (1997), reprinted in 10 LA RAZA L.J. 229 (1998) (“Latinos are forcing
America to revisit conventional wisdom about immigration and civil rights by reconsidering
popular assumptions about citizenship and identity as well as processes of assimilation and
pluralism.”).
36. In the United States, critical theorists, including LatCritters, have written about the need
for a multicultural, constitutional definition of citizenship. See, e.g., Mari J. Matsuda, Voices of
America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100
YALE L.J. 1329, 1401-03 (1991) (taking the position that “radical pluralism,” entitlement to cultural
independence, is constitutionally justified, and perhaps even required by the U.S. Constitution);
Enid Trucios-Haynes, The Role of Transnational Identity and Migration, 28 U. MIAMI INTER-AM.
L. REV. 293 (1996) (arguing that “transnational identity” leads to “transnational multiculturalism”
within the U.S. borderlands, which deserves legal recognition and protection). See also Kenneth
L. Karst, Citizenship, Race and Marginality, 30 WM. & MARY L. REV. 1 (1988); Kenneth L. Karst,
Paths to Belonging: The Constitution and Cultural Identity, 64 N.C. L. REV. 303 (1986); Gerald
Torres, Local Knowledge, Local Color: Critical Legal Studies and the Law of Race Relations, 25
SAN DIEGO L. REV. 1043 (1988).
37. LatCrit scholarship has noted that the social and legal construction of Latinas/os in the
United States is fundamentally a racialized process. For example, Ian F. Haney Lopez explains that
while race and ethnicity are not
essentially different; on the contrary . . . race and ethnicity are largely the same.
[But they] should not be conflated because these two forms of identity have been
deployed in fundamentally different ways. The attribution of a distinct ethnic
identity has often served to indicate cultural distance from Anglo-Saxon norms.
Left unstated but implicit, however, is a claim of transcendental, biological
similarity: ethnics and Anglo-Saxons are both White. The attribution of a distinct
racial identity, on the other hand, has served to indicate distance not only from
Anglo-Saxon norms, but also from Whiteness. Racial minorities are thus twice
removed from normalcy, across a gap that is not only cultural, but supposedly
innate.
López, Retaining Race, supra note 35, at 283 (footnotes omitted).
38. LatCrit scholars have paid special attention to the social construction of “foreignness,”
with its inherent denial of “citizenship,” that is often imposed on Latinas/os and other groups—such
as Asian-Americans—in the United States, despite our legal citizenship. See Neil Gotanda, AsianAmerican Rights and the “Miss Saigon Syndrome,” in ASIAN AMERICANS AND THE SUPREME
COURT: A DOCUMENTARY HISTORY 1087, 1096 (Hyung-Chan Kim ed., 1992).
2003]
13
Rojas identifies independence, secession, and regional autonomy, while
remaining within a single federal government, as alternatives to empower
indigenous peoples.40 These are certainly sensible choices when a
[In] the United States, if a person is racially identified as African American or
white, that person is presumed to be legally a U.S. citizen and socially an
American.
. . . [But] these presumptions are not present for Asian Americans, Latinos,
Arab Americans, and other non-Black racial minorities. Rather, there is the
opposite presumption that these people are foreigners; or, if they are U.S. citizens,
then their racial identity includes a foreign component.
Id.; see also Juan Perea, Los Olvidados: On the Making of Invisible People, 70 N.Y.U. L. REV. 965,
966 (stating “Latino invisibility” is defined as “relative lack of positive public identity and
legitimacy” caused by our foreign ethnicity). Language has also been an important theme in LatCrit
scholarship. See, e.g., Steven W. Bender, Direct Democracy and Distrust: The Relationship
Between Language Law Rhetoric and the Language Vigilantism Experience, 2 HARV. LATINO L.
REV. 145, 146 (1997) (discussing “language vigilantism,” how “individuals speaking a language
other than English [mostly Latinas/os] have increasingly come under attack [from normative
Anglos] in their schools, their workplaces, and even in their homes and places of leisure”); Juan
F. Perea, Demography and Distrust: An Essay on American Languages, Cultural Pluralism, and
Official English, 77 MINN. L. REV. 269, 350-73 (1992) (analyzing “official English” legal
proposals);.
39. The distinction and disjunction between cultural and political citizenship has been a
strong theme in CRT generally and LatCrit Theory in particular. See, e.g., Guadalupe T. Luna,
Chicana/Chicano Land Tenure in the Agrarian Domain: On the Edge of a “Naked Knife,” 4 MICH.
J. RACE & L. 39 (1998) (detailing how Mexican-Americans in the Southwest had their land taken
away in spite of their legal citizenship—and their property rights); Pedro A. Malavet, Puerto Rico:
Cultural Nation, American Colony, 6 MICH. J. RACE & L. 1 (2000) (describing Puerto Ricans as an
identifiable culture that lacks a legal citizenship, and how they are deprived of real political power
because of their legally second-class U.S. citizenship); Robert Westley, Many Billions Gone: Is it
Time to Reconsider the Case for Black Reparations?, 40 B.C. L. REV. 429 (1998) (advocating
reparations to bring African-Americans to full political citizenship in the U.S.); Eric K. Yamamoto,
Racial Reparations: Japanese American Redress and African American Claims, 40 B.C. L. REV.
477 (1998) (containing a critical review of reparations for the internment of U.S. citizens of
Japanese descent during the Second World War).
The alien represents a body of rules passed by Congress and reinforced by popular
culture. It is society, often through the law, which defines who is an alien, an
institutionalized “other,” and who is not. It is society through Congress and the
courts that determines which rights to afford aliens.
Kevin R. Johnson, The Social and Legal Construction of Nonpersons, 28 U. MIAMI INTER-AM. L.
REV. 263, 268 (1996). See generally Symposium, Citizenship and its Discontents: Centering the
Immigrant in the Inter/National Imagination, 76 OR. L. REV. 207 (1997); Ibrahim J. Gassama et al.,
Foreword, 76 OR. L. REV. 207, 209 (1997) (“The papers in this Symposium investigate the
aporectic relations among the nation-state, liberal understandings of citizenship, and problematic
constructions of race and ethnicity as they are applied to immigrants.”).
40. Every one of these alternatives falls under the rubric of autonomous regimes under
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combination of an identifiable indigenous group and a definable territory
can be found.41 However, it is not a general solution to the problems of a
multicultural modern state in which co-existence within the same territory
is a practical necessity. Such a factual situation requires a different
theoretical paradigm.42
Rojas’ deployment of the work of Will Kymlicka must be viewed with
some care. Kymlicka is a staunch defender of liberalism, and in fact favors
the “toleration” model of the liberal state as a solution to the challenges of
multiculturalism.43 This is a result of Kymlicka’s stance as a modern
International Law. See generally Natsu Taylor Saito, Considering “Third Generation”
International Human Rights Law in the United States, 28 U. MIAMI INTER-AM. L. REV. 387 (1996)
(arguing that international human rights, such as the right to self-determination, can help to inform
LatCrit Theory and to implement its praxis).
41. “All peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural development.”
International Covenant on Civil and Political Rights, G.A. Res. 2200A, U.N. GAOR, 21st Sess.,
Annex Supp. No. 16, at 52, U.N. Doc. A/6316 art. 1 § 1 (1966) (entered into force Mar. 23, 1976);
International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A, U.N. GAOR,
21st Sess., Supp. No. 16, U.N. Doc. A/6316 art. 1 § 1 (1966) (entered into force Jan. 3, 1976).
42. Adeno Addis explains:
As a general response to diversity in political units, however, separation seems as
impractical as it is dangerous. It is impractical partly because not all groups that
believe themselves to be marginalized and excluded from the social and political
life of the polity live in a defined territorial unit. In such circumstances, secession
will not be a viable answer to the problem of exclusion and discrimination.
Indeed, the notion of separation under these conditions is likely to lead to a
process of ethnic cleansing. It is also true that not all groups that have grievances
against a dominant majority want to secede, even if that were practically possible.
They simply wish to participate equally and fully in the life of the political
community.
Adeno Addis, On Human Diversity and the Limits of Toleration, in ETHNICITY AND GROUP RIGHTS
112, 113 (Will Kymlicka & Ian Shapiro eds.,1997) (emphasis added) (footnote omitted)
[hereinafter ETHNICITY].
43. Kymlicka presents important objections to the multicultural/communitarian critiques of
liberal theory that challenge the critics to prove the shortcomings of liberalism or to admit that they
are using liberal theory to construct a new paradigm for a more complicated world. Kymlicka, for
example, would argue that recognition of community and culture is a process of the evolution of
liberalism, rather than a competing paradigm that requires the rejection of liberalism. See WILL
KYMLICKA, LIBERALISM, COMMUNITY, AND CULTURE (1989). “Considering the nature and value
of cultural membership not only takes us down into the deepest reaches of a liberal theory of the
self, but also outward to some of the most pressing questions of justice and injustice in the modern
world.” Id. at 258; see also MICHAEL WALZER, ON TOLERATION 111-12 (1997).
The centrifugal forces of culture and selfhood will correct one another only if the
correction is planned . . . . [T]he political creed that defends the framework,
supports the necessary forms of state action, and so sustains the modern regimes
2003]
15
liberal.44 However, it is important to emphasize that liberalism is not an
inherently progressive political theory,45 it requires a multicultural lens to
produce a form of citizenship that truly empowers cultural minorities.46
Rojas then properly uses the work of Jürguen Habermas, providing a
coherent political theory that applies to resolve the problems of minority
groups within the multicultural state.47 Habermas argues that it is possible
to respect multiculturalism in a modern democratic society. Individual and
group cultural differences can exist, and the State can thrive, if the citizens
exercise what he calls “constitutional patriotism.” Under constitutional
patriotism, individuals are free to develop their own personal or group
culture48 as long as they share legal/political citizenship and a common
of toleration—is social democracy. If multiculturalism today brings more trouble
than hope, it does so in part because of the weakness of social democracy (in this
country, left liberalism). But that is another, longer story.
Id.
44. In his works, Kymlicka maps himself as a modern liberal scholar, a la Ronald Dworkin.
KYMLICKA, supra note 43, at 10 (“[H]op[ing] to show how my Kymlicka’s arguments are related
to the political morality of modern liberals from J.S. Mill through to Rawls and Dworkin”). See also
RONALD DWORKIN, LAWS EMPIRE (1989); RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1986).
45. “[Liberalism] is not always a progressive doctrine, for many classical liberals are
skeptical about the average human being’s ability to make useful advances in morality and culture,
for instance.” Alan Ryan, Liberalism, in A COMPANION TO CONTEMPORARY POLITICAL
PHILOSOPHY 293 (Robert E. Goodin & Philip Pettit eds., 1993).
46. See generally Malavet, supra note 39, at 75-96 (describing the failure of liberal
citizenship as a model that truly empowers minorities within the multicultural state, and articulating
a reformed liberalism with a multicultural sensibility).
47. See Jürgen Habermas, Citizenship and National Identity: Some Reflections on the Future
of Europe, in THEORIZING CITIZENSHIP 255 (Ronald Beiner ed., 1995).
One’s own national tradition will . . . have to be appropriated in such a manner
that it is related to and relativized by the vantage points of the other national
cultures. It must be connected with the overlapping consensus of a common,
supranationally shared political culture . . . . Particularist anchoring of this sort
would in no way impair the universalist meaning of popular sovereignty and
human rights.
Id. at 264 (emphasis added).
48. “Culture” as used by Habermas does not mean the stereotypes that are often used by the
normative society to discriminate against certain groups discussed above. Rather, Habermas refers
to positive cultural self-constructs. See infra note 109 and accompanying text.
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political culture.49 Rojas will surely apply this type of scholarship in
further development of his own work.
Accordingly, Rojas will benefit from the sophisticated critiques of
liberalism and exposition of postmodern alternatives thereto that are
common in LatCrit scholarship.50 Conversely, LatCrit will benefit from his
development of these theoretical foundations, and from his discussion of
the specific context of Chilean society, a matter that he begins in his essay,
and which we can only hope he continues to develop within the LatCrit
enterprise.
Both García-Villegas and Rojas engaged the conference in precisely
the type of discussion that the opening roundtable, the overall conference,
and LatCrit jurisprudence intended to foster. They both “centered” their
nations to our South (Colombia and Chile respectively) in LatCrit
discourse. Moreover, both García-Villegas and Rojas challenged
theoretical and social constructs of Latin American nations and their
citizens as constituting a single, mixed, Latina/o “race.”
One might argue that the construct of Latina/o as a racial category
encompassing people of White, indigenous, and African heritage, misses
the point that Latinas/os are not a race; rather, we are a cultural/ethnic
group encompassing persons of many different races. To put it more
simply, phenotypically or anthropologically, some Latinas/os are White,
Black, Indigenous, Asian, Arab, something else, or of mixed heritage. On
the other hand, many Latinas/os embrace the concept of a “sociedad o raza
india, española y africana” (an Indian, Spanish, and African society or
49. See Habermas, supra note 47.
[E]xamples of multicultural societies like . . . the United States demonstrate that
a political culture in the seedbed of which constitutional principles are rooted by
no means has to be based on all citizens sharing the same language or the same
ethnic and cultural origins. Rather, the political culture must serve as the common
denominator for a constitutional patriotism which simultaneously sharpens an
awareness of the multiplicity and integrity of the different forms of life which
coexist in a multicultural society.
Id. at 264.
50. See generally Jean Stefancic, Latino and Latina Critical Theory: An Annotated
Bibliography, 85 CAL. L. REV. 1509 (1997), reprinted in 10 LA RAZA L. J. 423 (1998) (critiquing
liberalism is one of the basic themes of LatCrit Theory). See, e.g., Enrique R. Carrasco,
Intersections Between LatCrit Theory and Law and Development Studies, 28 U. MIAMI INTER-AM.
L. REV. 313 (1996) (critiquing neo-liberal development theory); Berta Esperanza Hernández-Truyol
& Sharon Elizabeth Rush, Foreword: Culture, Nationhood, and the Human Rights Ideal, 33 U.
MICH. J. L. REFORM 233, 246-51 (2000) (critiquing liberalism using international legal principles);
Daria Roithmayr, Deconstructing the Distinction Between Bias and Merit, 85 CAL. L. REV. 1449
(1997), reprinted in 10 LA RAZA L. J. 363 (1998) (using critical theory to deconstruct the liberal
myth of an incompatible merit/bias binary).
2003]
17
race).51 But, of course, these shifting constructions of Latinidad (Latina/oness) only help to reinforce the LatCrit tenet that race is a social
construct,52 and as such varies according to lens.53 The racialization of
Latinas/os as a single-non-White race produces our marginalization within
the United States borderlands. However, in the nations of Latin America
the “single-mixed-race” construct enforces White Supremacy by denying
the existence of socially constructed racial differences and enforced racial
privilege(s). As Hugo Rojas points out, this reduces racial minorities, such
as indigenous peoples, to invisibility, and thus leaves them powerless
within the legal/political system. García-Villegas underscores the concept
that critical theorists can only empower the diverse members of their
societies by focusing both on the individual and on his/her
legal/political/social location within the nation as a whole.
These two essays balance each other quite well. García-Villegas wants
to empower the marginalized “other,” but warns that this can best be
accomplished within the national social and legal structure. Rojas begins
to explore how liberalism, with a multicultural sensitivity, might provide
true constitutional citizenship for Chilean indigenous peoples. Both
authors fully capture the anti-essentialist nature of LatCrit Theory. In
particular, García-Villegas focuses “LatCrit antiessentialist,
antisubordination perspectives on the particularities of Latin American
realities [that] might inspire new theoretical insights and enable new
coalitional possibilities among subordinated groups, both within Latin
America and across other regions.”54 This is precisely what the panel was
intended to bring to the forefront of our conference. Rojas, likewise
51. This is a common image in Latin-American popular culture. See, e.g., LA SONORA
PONCEÑA, DESCENDENCIA, BIRTHDAY PARTY (“Somos latinos, somos la esencia de Puerto Rico,
quien me discute ese honor . . . Orgulloso de mi cantar, latina, yo siempre estoy, . . . Mezcla de
español, africano y taino.” (emphasis added). Author’s translation: “We are Latinos, we are the
essence of Puerto Rico, who argues/challenges this honor? . . . Proud of my singing, Latin, I always
am, . . . A Mixture of Spaniard, African, and Taino.”).
52. “Race is social, in the sense that the groups commonly recognized as racially distinct
have their genesis in cultural practices of differentiation rather than in genetics, which plays no role
in racial fabrication other than contributing the morphological differences onto which the myths
of racial identity are inscribed.” Lopez, Retaining Race, supra note 35, at 281; see also L. LUCA
CAVALLI-SFORZA ET AL., THE HISTORY AND GEOGRAPHY OF HUMAN GENES (1994) (discussing the
lack of biological basis for racial categories); MICHAEL OMI & HOWARD WINANT, RACIAL
FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 1980S (1986); Ian F. Haney Lopez,
The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29
HARV. C.R.-C.L. L. REV. 1 (1994).
53. See Berta Esperanza Hernández-Truyol, Indivisible Identities: Culture Clashes, Confused
Constructs and Reality Checks, 2 HARV. LATINO L. REV. 199, 207 (1997) (suggesting imposed
social constructs are dynamic and tend to change based on the racialized, gendered frame of
reference of the actor).
54. See Substantive Program Outline, supra note 8.
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working within the context of the panel, challenges the single-race
construct of Latin America, to remind us all of the strong but marginalized
indigenous element in the Americas.
B. Plenary Panel I: Implications of Indigenous Activism
Susan Scafidi, who participated in Plenary Panel One:55 Implications
of Indigenous Activism,56 argues that the legal construction of indigenous
55. Generally, the plenaries were intended to:
[R]eflect a delicate balance between the need to revisit issues of fundamental and
continuing importance to our multiply diverse communities and the need to chart
new directions, center particular struggles and integrate new issues and
perspectives into evolving LatCrit social justice agendas. Both are crucially
important in deepening the theoretical insights and expanding the solidaristic
commitments already achieved through the collective discourse and communitybuilding efforts of prior LatCrit conferences.
Id.
56. The plenary was described in the Substantive Program Outline as follows:
In our theorizing about identity, U.S. Latinos/as have focused on naming and
analyzing the superordinant practices of White culture and examining relations
among ourselves . . . as well as our relations to and with other subordinated groups
within the U.S. . . . As LatCrits, we are just now exploring the political and
economic benefits of a pan-ethnic Latina/o identity while learning of the complex
experiences that both connect and divide the different populations that fit within
the Latina/o umbrella.
The rest of the continent is witnessing seismic changes in the struggles
associated with ethnic identities. . . . At least eight Latin American
nations—Bolivia, Colombia, Ecuador, Guatemala, Mexico, Nicaragua, Peru, and
Paraguay—now recognize the ethnic pluralism of their societies by including
specific constitutional provisions granting varying degrees of autonomy to the
indigenous groups within the national borders . . . .
This identity, asserted by indigenous peoples, is as distinct from the mestizo/a
majority as it is from the criollo/a minority (i.e., the White European elites) . . . .
What does this hemispheric dialogue and struggle mean for U.S. Latinas/os?
How is the Latina/o struggle for voice, vote, and power in the U.S. understood
south of our borders? What does this struggle mean for LatCrit theory and
practices? What can we learn when such concepts as mestizaje and hybridity are
challenged and then revived by Latin American theorists . . . ? Latin American
theorists, . . . are drawing on concepts such as performativity, mimicry, and
national myths to deepen the understanding of the construction of national
identities in Latin America. LatCrit theory can be strengthened and broadened by
exploring its links to this new theorizing about the identities that define the
various groups in Latinas’/os’ countries of origin and that also define ethnicity as
a concept and by extension give the “Lat” in LatCrit more specific meanings.
Id.
2003]
19
peoples in the former Spanish Americas, mostly influenced by Juan de
Solórzano Pereira,57 is flawed because the European-Spanish legal culture
in which the original rules developed was markedly different from the
colonial Spanish-Indigenous culture imposed in the Americas. Moreover,
the difference between the more “homogeneous” Spanish culture in the
Iberian peninsula and the more racially and culturally diverse SpanishIndigenous culture(s) in the Americas, is one of the reasons for the
continued subordination of the Latin-American indigenous peoples.
Scafidi correctly diagnoses the result: the legal construction of “indians”58
in the Americas that was imposed by the Spanish conquistadores
(conquerors) was flawed and has left the indigenous peoples as a
permanent underclass in the new nations of the Americas. Scafidi argues
that the subordination of the indigenous peoples is the product of a failure
to adapt Spanish laws, which were developed in the context of a relatively
homogeneous Spain in the 17th century, to the more complex social
realities of the Americas. Scafidi’s analysis suggests that the development
of the Leyes de las Indias (the Laws of the Indies, the Spanish Americas)
was a legal blunder—a failed comparative experiment—rather than an
affirmative attempt legally to control the indigenous peoples.
However, rather than failing properly to analogize, perhaps Solórzano
achieved exactly what he set out to do: to justify, through law, the colonial
occupation of the Americas and the subordination of the indigenous
peoples to the Spanish colonizers. The indigenous peoples are still
subordinated because one mostly White, Spanish-speaking, Christian
postcolonial dominant group has replaced a White, Spanish-speaking,
Christian colonial dominant group. Now, like then, the “White” (male)
elite also benefits from continuing the subordination of the indigenous
peoples. Therefore, the reason for the continued subordination of the
indigenous peoples is not some fundamental failure of analogy or
comparative methodology to bridge the cultural gap between Spanish and
colonial cultures.59 The real problem is that Spanish Leyes de las Indias
57. Susan Scafidi, Old Law in the New World: Solórzano and the Analogical Construction
of Legal Identity, 55 FLA. L. REV. 191 (2003) (indicating that her “essay examines the efforts of
seventeenth-century Spanish jurist Juan de Solórzano Pereira to clarify Native American legal
identity within the Spanish social order through the use of legal analogy”).
58. Both generally and in law, Spanish conquistadores referred to the new colonies of the
Americas as the “Indias” (Indies) and to the indigenous inhabitants thereof as Indios (Indians). See
IV DICCIONARIO ENCICLOPÉDICO DE DERECHO USUAL 389 (1998) (explaining that use of Indias was
due to Columbus’ error in mistaking the islands of the Caribbean and the Eastern coast of the
Americas with the Eastern coast of the Indian subcontinent); see also id. at 392 (noting that “Indio”
refers to indigenous peoples of what the Spanish called the Indies).
59. Most comparativists accept the necessity of “bridging the cultural gap” when doing any
transnational work. See, e.g., Roger J. Goebel, Professional Qualification and Educational
Requirements for Law Practice in a Foreign Country: Bridging the Cultural Gap, 63 TUL. L. REV.
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intentionally replicate the essentialized normativities of 13th century60
Spanish society: moros (Moors, Muslims), Jews, and cristianos
(Christians).61 By focusing on the 17th century Spanish society in which
Solórzano performed his duties, Scafidi perhaps misses the real analogy
intended by Solórzano, between 13th century moros (Muslims) and Jews
in Spain on the one hand, and 17th century indias/os in the Americas, on
the other. Re/viewed in this manner, the conquistadores merely duplicated
the social hierarchies they had at “home” in Spain in their newly
443, 444-54, 508 (1989). Accordingly, the “cultural, social, political and economic systems” in
which the law must be applied are essential when instructing a client on the “relevant
considerations” of international legal transactions. Id. This matter is discussed further below in Part
III, infra notes 99-102 and accompanying text.
60. The 13th century might make a better historical frame of reference because this is the
period during which the Partidas, the most important “national” code in Spain and its colonies,
were produced, starting in 1265. It is also important to note that this is a period of the Reconquista,
the process through which the Catholic kingdoms defeated and expelled Muslims and Jews from
the Iberian Peninsula. II DICCIONARIO DE LA LENGUA ESPAÑOLA 1743 (2001) (defining
“Reconquista,” in upper case, as generally referring to “the recovery of the Spanish territory
invaded by the Muslims . . . the culmination of which was the taking of Granada in 1492” (author’s
translation)).
61. The Código de las Siete Partidas has been described as “a work generally known as a
medieval legal treatise and called ‘the first extensive compilation of western secular law since
Justinian.’” MARILYN STONE, MARRIAGE AND FRIENDSHIP IN MEDIEVAL SPAIN 1 (1990) (citing
Charles Sumner Lobingier, Introduction, in ALFONSO EL SABIO, LAS SIETE PARTIDAS vi (Samuel
Parsons Scott trans., 1931)). They were drafted under the patronage and probably the supervision
of King Alfonso X, El Sabio, of Spain during the thirteenth century. Id. at 1-22. Some experts
believe that the Partidas did not become effective law until the 1348 Ordenamiento de Alcalá, see,
e.g., RENÉ DAVID & JOHN E. C. BRIERLEY, MAJOR LEGAL SYSTEMS IN THE WORLD TODAY: AN
INTRODUCTION TO THE COMPARATIVE STUDY OF LAW 57 (3d ed. 1985), but others hold that they
“were being used extensively as a book of reference by royal judges before 1348.” STONE, supra
at 10 (citing EVELYN S. PROCTER, ALFONSO X OF CASTILLE, PATRON OF LITERATURE AND
LEARNING 51 (Reprint 1980)).
Francisco Martínez Marina, author of a prominent essay about the history of
Spanish legislation, claimed that the large number of Partida manuscripts with
marginal notes in existence during the eras of Alfonso X, Sancho IV, Fernando IV
and Alfonso XI suggests that the provisions of the Siete Partidas were discussed
in universities and debated by lawyers and judges prior to 1348.
Id. (citing Francisco Martínez Marina, Ensayo histórico-crítico sobre la legislación y principales
cuerpos legales de los reinos de Leon y Castilla especialmente sobre el código de las Siete Partidas
de don Alfonso el Sabio, in OBRAS ESCOGIDAS DE DON FRANCISCO MARTÍNEZ MARINA 194 (1966)).
There is strong historical evidence that the Spanish nobility objected to the Partidas because they
appeared to limit the nobility’s power and importance, both during the reign of Alfonso X, and that
of Alfonso XI two generations later. Id. at 17. The noblemen appeared to regard some of the
objectionable rules as the product of non-Spanish thinking imported from the Paris and Bologna
schools. Id. This may account for the debate regarding their effective date.
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21
conquered territories, it is just that the haves are essentially the same, and
the have-nots are of slightly different shades and religions.
Nevertheless, regardless of the historical and social frame of reference,
Scafidi engages us in an important discussion about the legal construction
of the indigenous peoples of the Americas that was imposed by the
Spanish conquistadores.62 The “noble savages” Columbus encountered in
the Caribbean have collectively become known as the Taino people.63 The
“cannibals” that Columbus warned of were the island Caribs, who posed
the most consistent indigenous military challenge to Spanish control of the
Caribbean.64 To these, of course, one must add the large indigenous
cultures of the continental Americas who were conquered by the Spanish
because, unlike the Taino and Caribs, these cultures were not totally
exterminated during the process of conquest. They are thus the principle
objects of the laws that Scafidi studies.
She deftly points out how the Spanish political culture used juridical
concepts that had a long history within the Christian Spanish legal order
and, by analogy, developed a system to apply to the newly conquered
indigenous peoples of the Americas.65 This system is based on the natural
inferiority of the colonized indigenous peoples relative to the White
Spanish conquistadores. However, it also reflects a paternalistic charity
towards these wretched wards66 that is comparable to the medieval
Catholic Canon Law and its ratione personarum jurisdiction over
“wretched persons” and its “protection” of Jews.67 The seemingly
62. Scafidi, supra note 57.
63. Id. at 198.
64. “Columbus encountered Tainos throughout most of the West Indies. . . . A second
peripheral group, the Island-Caribs, lived on the islands from Guadeloupe southward, separating
the Tainos from South America.” IRVING ROUSE, THE TAINOS: RISE & DECLINE OF THE PEOPLE
WHO GREETED COLUMBUS 5 (1992). The Caribs and the Spanish fought a type of “guerrilla” war
during the early 16th Century, with many raids on Puerto Rican soil, and military response from
the Spanish. FEDERICO RIBES TOVAR, A CHRONOLOGICAL HISTORY OF PUERTO RICO 30-99 (1973).
By the end of the century, the Caribs were no longer raiding. Id. The Taino on the other hand, were
enslaved in the encomiendas, and by the 18th century, were almost completely gone. See infra note
68.
65. Scafidi, supra note 57, at 198.
66. Id.
67. In Catholic Canon Law, the church law and ecclesiastical court jurisdiction was divided
into
jurisdiction over certain kinds of persons (ratione personarum, “by reason of
persons”) and jurisdiction over certain types of conduct or relationships (ratione
materiae, “by reason of subject matter”). The church claimed “personal
jurisdiction” over: (1) clergy and members of their households; (2) students; (3)
crusaders; (4) personae miserabiles (“wretched persons”), including poor people,
widows, and orphans; (5) Jews, in cases against Christians; and (6) travelers,
including merchants and sailors, when necessary for their peace and safety.
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“charitable” language of the laws masked a horrible reality.68 Like all
social and legal constructs that are based on the alleged “natural”
superiority of one group over another, the Spanish colonial model has left
the personas nativas/os americanas/os (persons native to the Americas)
as a permanent underclass within the new nations of this hemisphere.
Scafidi indicates that Critical Legal theorists attack analogical
approaches to law69 because they are “incapable of yielding just results in
a heterogeneous society.”70 She focuses on the legal construction of
Harold J. Berman, Law and Revolution: The Reformation of the Western Legal Tradition, in CIVIL
LAW TRADITION, supra note 17, at 298.
68. For example, the encomienda (to entrust) system was supposedly a benign process of
putting the indigenous persons of Puerto Rico to work and to educate them into Christianity. In
reality, it was brutal slavery. On December 20, 1503, Queen Isabella of Spain issued a Royal order
instructing the Governor of Puerto Rico to “compel and force the said Indians to associate with the
Christians of the island and to work on their buildings, and to gather and mine the gold and other
metals, and to till the fields and produce food for the Christian inhabitants and dwellers of the said
island.” THE PUERTO RICANS: A DOCUMENTARY HISTORY 18-19 (Kal Wagenheim & Olga Jiménez
de Wagenheim eds., 1994). The edict itself identified the problem that it was trying to resolve as
follows: “We are informed that because of the excessive liberty enjoyed by said Indians they avoid
contact . . . with the Spaniards to such an extent that they will not even work for wages, but wander
about idle, and cannot be had by the Christians to convert to the Holy Catholic Faith . . . .” Id.
While the Tainos were ostensibly considered “free” men under the edict, the reality was that they
were enslaved. Id. at 19-22. By the 18th Century most of the Tainos native to Puerto Rico were
almost completely gone. PEDRO MALAVET-VEGA, HISTORIA DE LA CANCIÓN POPULAR EN PUERTO
RICO (1493-1898), at 96 (1992) (noting that in 1509, 60,000 Tainos were given into the
encomiendas; only 14,636 were left by 1515; 1,537 were left by 1530; by 1778, only 2,302 Tainos
were counted as living mostly in the central mountains of Puerto Rico).
69. For example, Trina Grillo and Stephanie Wildman have described “the dangers inherent
in . . . analogizing sex discrimination to race discrimination.” See, e.g., Trina Grillo & Stephanie
M. Wildman, Obscuring the Importance of Race: The Implication of Making Comparisons Between
Racism and Sexism (or Other–isms), in CRITICAL RACE THEORY: THE CUTTING EDGE 566 (Richard
Delgado ed., 1995). Grillo and Wildman explain that
comparing sexism to racism perpetuates patterns of racial domination by
marginalizing and obscuring the different roles that race plays in the lives of
people of color and of whites. The comparison minimizes the impact of racism,
rendering it an insignificant phenomenon—one of a laundry list of–isms or
oppressions that society must suffer.
Id.
70. Scafidi, supra note 57, at 202. This claim raises complex questions. As Grillo and
Wildman explain:
Given the problems that analogies create and perpetuate, should we ever use
them? Analogies can be helpful. They are part of legal discourse, as well as
common conversation. Consciousness raising may be the beginning of knowledge.
Starting with ourselves is important, and analogies may enable us to understand
2003]
23
subordination for the indigenous peoples of the Americas.71 Scafidi’s
project fits within the LatCrit enterprise and its goal of helping to
empower the marginalized. Like Scafidi, LatCrit seeks to identify the
continuing subordination of entire groups and classes in any country, but
most especially in the real or imagined Latina/o “homelands”72 at the start
the oppression of another in a way we could not without making the comparison.
Instead of drawing false inferences of similarities from analogies, it is important
for whites to talk about white supremacy, rather than leaving all the work for
people of color. Questions remain regarding whether analogies to race can be
used, particularly in legal argument, without reinforcing racism/white supremacy.
There are no simple answers to this thorny problem. We will have to continue to
struggle with it, and accept that our progress will be slow and tentative.
Grillo & Wildman, supra note 69, at 570.
71. As discussed above, Scafidi argues that 17th century Spanish society was relatively
heterogeneous and that it was therefore an error to apply the laws of that heterogeneous society to
the multicultural Americas. Nevertheless, while the Spanish society of the 17th century was indeed
socially constructed as heterogeneous, after a long process of Reconquista and internal persecution,
the laws that Scafidi critiques had their origin in the diverse Iberian peninsula of the 13th century.
Therefore, I believe that she has chosen an example that does not support the claim that analogy
cannot produce adequate or progressive results in a heterogeneous society. Rather, Spanish colonial
laws are an example of the replication of privilege to marginalize the “other,” with essentially the
same privileged group (White, Christians), and a different “other” (indigenous peoples). See Berta
Esperanza Hernández-Truyol, The Latindia and Mestizajes: Of Cultures, Conquests, and
LatCritical Feminism, 3 J. GENDER RACE & JUST. 63, 77 (1999).
[In] New Spain (Mexico) where the Spanish were a white minority, Spanish
attitudes toward the Native population paralleled the Spanish xenophobic
expulsion of Jews and Arabs from Spain . . . .
[T]he Spaniards in Mexico (as well as in other places) established a complex
system of racial categorization that included the prohibition of public office
holders from having a “taint” of Indian, Arabic, or Jewish blood.
Id. (footnotes omitted).
72. The term “homeland” is loaded with positive and essentialized meanings, depending on
lens. Compare Pedro A. Malavet, The Accidental Crit II: Culture and the Looking Glass of Exile,
78 DENV.U. L. REV. 753, 763 (2002) (“For me, ‘home’ is Ponce, Puerto Rico. No matter how far
away from it I may go, my personal, professional and emotional travels always lead me back to
Ponce.”); with Perea, Five Axioms, supra note 35, at 240 (“‘National origin’s’ focus on ancestral
lands and traits outside the United States facilitates the attribution of foreignness to Latinos/as, our
‘symbolic deportation’ from within these borders. Thus we are removed from our full and
constitutive role in a plenary conception of American identity.”). Robert Chang explains that
Latinas/os and Asian-Americans share the imposition of the essentialized normativities of nativists
who construct their fellow U.S. citizens of color as foreign. Chang, supra note 23, at 58. The
nativists then dream of the “return” of the “foreign” “other” to the imaginary homeland imposed
by the nativist, or at least that the “foreigner” never will realize full citizenship within the U.S.
“Where are you from,” is quickly, albeit often impliedly, followed by “When are you going back?”
Id. (citation omitted). For discussion of cultural nationhood, see also infra notes 110-11 and
accompanying text.
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of the 21st century. LatCrit thus seeks to understand how subordination,
such as that described by Scafidi, is accomplished, because that is a
necessary prerequisite for its antiessentialist mission. LatCrit Theory will
benefit from proper historical analysis of the legal construction of identity
perpetrated by the Spanish colonizers on the nations of Latin America
because such constructs have enduring influence on the identity of
Latinas/os even here in the United States.73 Moreover, because the process
of legal/social construction of subordination discussed by Scafidi is similar
to the social construction of race in the United States,74 this work also
offers us yet another perspective on how to tear down existing power
hegemonies that will be relevant to LatCrit praxis within the United States
borderlands.
C. The TWAIL/NAIL Concurrent Panel
Jorge Esquirol and Michael Wallace Gordon participated in the third
concurrent panel, titled TWAIL/NAIL:75 Latin American Legal Theory.76
73. For example, colonial racial hierarchies often become part of Latina/o identity and
constitute internalized oppression(s). See infra note 106 and accompanying text.
74. See supra notes 37, 52 and accompanying text.
75. Elizabeth Iglesias has defined TWAIL/NAIL: “Third World Approaches to International
Law” (TWAIL) and “New Approaches to International Law” (NAIL). Elizabeth Iglesias, Out of
the Shadow: Marking Intersections in and Between Asian Pacific American Critical Legal
Scholarship and Latina/o Critical Legal Theory, 40 B.C. L. REV. 349, 372 n.65 (1998).
76. The panel was described as follows:
The other two sets of concurrent sessions this year features [sic] four concurrent
panels each. Like the plenary panels, these concurrent sessions reflect the desire
for continued attention to matters of recurring significance and the effort to mark
new terrain for anti-subordination critique. The concurrent panels, as indicated
more fully in the attached Program Schedule, address issues ranging from
continuing LatCrit efforts to engage and incorporate critical perspectives on
international and comparative law, to explorations of the current day
consequences of Cubans’ identities within and outside the patria, Puerto Rico’s
colonized history, and the political economies of culture, desire and latinas’
bodies.
As in prior LatCrit conferences, both the concurrent panels and the concurrent
workshops are crucial and integral events that enable conference participants to
join in relatively intimate small-group settings to carry forward ideas from prior
LatCrit conferences, or from conversations begun in plenary sessions during the
conference, or to break new ground that may serve as points of programmatic
follow-up in future LatCrit conferences. We hope you will take advantage of, and
contribute to, the synergies that are so often produced by the blend of plenary and
concurrent programming and so clearly evident in the Symposium proceedings
that have resulted from these blends at prior LatCrit conferences.
Substantive Program Outline, supra note 8.
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25
Michael Gordon focuses on the many mis/conceptions about Latin
American legal culture among United States’ legal practitioners and
academics. He correctly attributes these false constructs both to United
States legal/cultural imperialism and to a failure to apply real comparative
methodology. Because he is one of the preeminent comparativists in the
United States today,77 Gordon acts as an important intellectual bridge
between North and South America, especially between the United States
and the nations south of the Rio Grande.
In his all too brief remarks, Professor Gordon provides a series of
illustrations of the anglo-saxon, male, protestant, pro-common law
American vision of a peculiarly legal form of cultural imperialism that
displaced Spanish law from those parts of what are today the United
States, but were Spanish prior to the Treaty of Guadalupe Hidalgo.78
However, Gordon provides a more optimistic view of the present and
hopefully the future, particularly in the area of Public International Law.
He specifically cites the North American Free Trade Agreement
(NAFTA)79 as reflecting a more pluralistic vision of law and legality that
77. See generally RALPH H. FOLSOM ET AL., INTERNATIONAL BUSINESS TRANSACTIONS IN A
NUTSHELL (2000); RALPH H. FOLSOM ET AL., INTERNATIONAL TRADE AND INVESTMENT IN A
NUTSHELL (2000); RALPH H. FOLSOM ET AL., INTERNATIONAL BUSINESS TRANSACTIONS: A
PROBLEM-ORIENTED COURSEBOOK (1999); INTERNATIONAL BUSINESS TRANSACTIONS: A READER
(Ralph H. Folsom ed., 1997); MARY ANN GLENDON ET AL., COMPARATIVE LEGAL TRADITIONS IN
A NUTSHELL (1999) [hereinafter GLENDON ET AL., NUTSHELL]; MARY ANN GLENDON ET AL.,
COMPARATIVE LEGAL TRADITIONS: TEXT, MATERIALS AND CASES ON THE CIVIL AND COMMON
LAW TRADITIONS (1994).
78. Michael Wallace Gordon, Legal Cultures of Latin America and the United States:
Conflict or Merger, 55 FLA. L. REV. 115 (2003). As a result of the Treaty, the U.S. acquired
“present-day Texas, California, Arizona, New Mexico, Nevada, and parts of Utah, Colorado and
Kansas.” JUAN F. P EREA ET AL., RACE AND RACES, CASES AND RESOURCES FOR A DIVERSE
AMERICA 253 (2000); see also Treaty of Peace, Friendship, Limits, and Settlement Between the
United States of America and the Mexican Republic, Treaty of Guadalupe Hidalgo, May 30, 1848,
U.S.-Mex., art. IX, 9 Stat. 922, 930 [hereinafter Treaty of Guadalupe Hidalgo]. On the Treaty of
Guadalupe Hidalgo, see generally THE LEGACY OF THE MEXICAN AND SPANISH-AMERICAN WARS:
LEGAL, LITERARY AND HISTORICAL PERSPECTIVE (Gary D. Keller & Cordelia Candelaria eds.,
2000); RICHARD GRISWOLD DEL CASTILLO, THE TREATY OF GUADALUPE HIDALGO: A LEGACY OF
CONFLICT (1989); Symposium, Understanding the Treaty of Guadalupe Hidalgo on its 150th
Anniversary, 5 SW. J.L. & TRADE AM. 1 (1998). LatCrit scholar Guadalupe T. Luna has written
extensively about the Treaty of Guadalupe Hidalgo. See, e.g., Guadalupe T. Luna, Chicanas/os,
“Liberty” And Roger B. Taney, 12 U. FLA. J.L. & PUB. POL’Y 33 (2000); Guadalupe T. Luna, “This
Land Belongs To Me:” Chicanas, Land Grant Adjudication, and the Treaty of Guadalupe Hidalgo,
3 HARV. LATINO L. REV. 115 (1999); Guadalupe T. Luna, Beyond/Between Colors: On the
Complexities of Race: The Treaty of Guadalupe Hidalgo and Dred Scott v. Sandford, 53 U. MIAMI
L. REV. 691 (1999); Guadalupe T. Luna, En El Nombre De Dios Todo-Poderoso: The Treaty of
Guadalupe Hidalgo and Narrativos Legales, 5 SW. J. L. & TRADE AM. 45 (1998).
79. On the Treaty, see generally RALPH FOLSOM ET AL., NAFTA: A PROBLEM-ORIENTED
COURSEBOOK (2000); RALPH H. FOLSOM ET AL., HANDBOOK OF NAFTA DISPUTE SETTLEMENT
(1998).
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better respects the different legal systems of its member states: Mexico’s
civil law system, Canada’s partially hybrid common law/civil law
tradition, and the common law rules of the United States. Specifically, he
points out that the dispute-resolution provisions of the agreement adopt the
substantive legal rules and standards of review of each member state.80
The NAFTA has been the subject of LatCrit discussion, not all of it
positive,81 but it is clearly an important area for LatCrit study.
Jorge Esquirol challenges the “Law and Development” scholarly view
of Latin America.82 This law and development model has endured well
past the shelf-life of that discredited movement. Professor Esquirol refers
80. Gordon, supra note 78, at 118-19.
81. See, e.g., José E. Álvarez, Critical Theory and the North American Free Trade
Agreement's Chapter Eleven, 28 U. MIAMI INTER-AM. L. REV. 303, 312 (1997) (“NAFTA
investment chapter [overly] reflects U.S. laws and perspectives.”); Elizabeth M. Iglesias, Human
Rights in International Economic Law: Locating Latinas/os in the Linkage Debates, 28 U. MIAMI
INTER-AM. L. REV. 361, 369-71 (1996) (critiquing the “labor accord portion of the NAFTA”).
82. Jorge L. Esquirol, Continuing Fictions of Latin American Law, 55 FLA. L. REV. 41
(2003). David Trubek has provided a thorough, critical analysis of law and development:
The law and development movement was a sort of export branch of Imperial legal
culture. In the 1960’s American legal academics, encouraged by massive grants
from foundations and government agencies, turned to the study of the role of law
in Third World “development.” . . .
The law and development movement took the value of modern law to be self
evident. “Modern law” usually meant the codes or new statutory enactments
which third world governments had imported from other, presumably more
advanced, nations. Usually, these codes or statutes set forth norms that had little
relation to everyday life in the countries of Africa, Asia, and Latin America. Law
and development scholars assumed that adoption and implementation of these
(often imported) modern laws marked development or progress. And they treated
as a “problem” the fact that social relations in Third World countries did not
conform to these newly enacted norms. This equation of legal standards with
progress, and the definition of non-compliance as a problem, led these scholars to
spend a considerable amount of time thinking about how we could develop a way
to measure—and thus increase—the “penetration” of so-called modern law.
Compressed in that single word are a whole set of assumptions and attitudes
that have come under attack. Critics have challenged the following assumptions:
that any body of law contains a single set of principles or rules whose impact can
be unproblematically measured; that law emanates from some central source and
then is implanted in society; that modern law (whatever that is) is normatively
desirable or historically inevitable; and, finally, that the social scientific task of
measuring “penetration” is a progressive task. It does not require much
sophisticated feminist analysis to see how the use of the term “penetration”
crystalized the hegemonizing, dominating, and patriarchal nature of imperial legal
culture in the 1960’s.
David M. Trubek, Back to the Future: The Short, Happy Life of the Law and Society Movement,
18 FLA. ST. U. L. REV. 4, 37-38 (1990) (footnotes omitted).
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27
to developmentalism and developmentalists to describe, respectively, the
Law and Development scholarship of the 1960s and 1970s, and the United
States academics who produced it.83 Comparativists in the United States,
and elsewhere, have long recognized many of the shortcomings of law and
development.84 Professor Esquirol thus engages us in a well-crafted, strong
discussion and critique of the legal form of cultural imperialism
perpetrated by the North upon the nations of Latin America.
Esquirol argues that the developmentalist view endures in the United
States’ memory because it fits in with American stereotypes about
“corrupt” and, more generally, inferior Latin American cultures.85 This
essentialized view in turn affects how Americans86 interact with Latin
America. Additionally, the construct is embraced by existing dominant
groups in Latin America who thus protect their privilege and continue to
subordinate their own people. This marginalization from outside and from
within, especially in and through law, serves only to perpetuate
essentialized normativities—even within a culture that to the North
American eye is an “other.”
83. See generally Esquirol, supra note 82.
84. For a succinct, critical note on law and development, see CIVIL LAW TRADITION, supra
note 17, at 36-37.
85. Elizabeth Iglesias has described this phenomenon:
By the term development discourse, I refer to a cluster of arguments and
representations that organize our understandings of the causes and cures of
Latina/o economic and political subordination around accounts linking
subordination to underdevelopment and underdevelopment to the persistence of
social practices, relations, and expectations that are represented as elements of
Latin [American] culture.
Iglesias, supra note 81, at 377-78.
86. Berta Esperanza Hernández-Truyol explains the irony of using the term “American” to
refer only to citizens of the United States of America:
I use the designation United States for the United States of America. Many, if not
most or all of the other authors use the terms United States and America
interchangeably. I decided not to alter the authors’ choice of language in that
regard. I do find it necessary to comment thereon, however, because I find it
ironic that in a book on imperialism the imperialistic practice of denominating the
United States as “America” remains normative. Indeed, America is much larger
than the U.S. alone; there is also Canada [and Mexico] in North America, and all
of Latin America and the Caribbean, (some locations commonly referred to as
Central America, some as South America).
Berta Esperanza Hernández-Truyol, Introduction, in MORAL IMPERIALISM: A CRITICAL
ANTHOLOGY 15 n.5 (Berta Esperanza Hernández-Truyol ed., 2002).
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A new paradigm is needed that promotes full—both legal and
economic—desarrollo (development). This paradigm should reject the
assumption of the irrelevance of the official legal system as a positive
element in the daily lives of the americanas/os (the people of the
Americas). To the contrary, the new approach should embrace the official
legal system as a catalyst for change that has the capacity to empower the
marginalized. Accordingly, the process of reform should not be designed
to bypass the local legal system and supplant it with a supranational
alternative; rather, the end-goal should be to allow formerly marginalized
peoples to participate fully in the national legal system. Reform, rather
than replace the national systems; advise and empower the citizens of
Latin American nations; do not presume to impose and thereby control
those systems and citizens.
Esquirol provides a critical defense of the legal cultures of the nations
of Latin America through a well-researched and thoughtful critique of the
law and development movement as well as its more contemporary cousin,
modern developmentalism. He articulates that both the shortcomings of
this movement and its demise are too often constructed in culturally
imperialistic ways that underestimate or totally ignore the strength and
nature of individual Latin American legal systems.87 Yet, Esquirol does
not ignore the negative forces and existing hegemonies within Latin
American societies. Rather, he explains how these forces are an altogether
ignored element that led to the failure of law and development theory and
its attempted implementation as a single model for an entire continent.88
This provocative and powerful critique captures the theme of the
conference, and engages LatCrit in developing a theoretical blueprint to
empower the nations of the Americas, with a progressive approach to legal
reform and to law more generally. Esquirol captures the spirit and purpose
of LatCrit by reconceptualizing the law and society movement, and
removing it from the previously United States-centric, paternalistic view,
and placing it in the context of the diverse legal systems of the nations of
Latin America. The central theme of his critique is that by accepting the
“duality,” the separation between the formal legal system and the so-called
informal social/legal sector,89 critical theorists are abandoning the field of
87. The plural is especially important because it is the national, that is, local identity of law
that Esquirol explains defines the individual legal systems of the Americas. Hence, he challenges
the homogenized notion that “Latin America” is a single territory or a single legal system. Esquirol,
supra note 82, at 43.
88. Id. at 80.
89. In a work referenced by Esquirol, Hernando de Soto describes “informality” as a formally
illegal process “designed to achieve such essentially legal objectives as building a house, providing
a service, or developing a business.” HERNANDO DE SOTO, THE OTHER PATH: THE INVISIBLE
REVOLUTION IN THE THIRD WORLD 11 (June Abbott trans., 1989). The “problem” that produces the
informal economy is the state, concludes de Soto: “We can say that informal activities burgeon
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formal law to the traditionalist, conservative power brokers that are
thought to control it. In so doing, progressives are giving up any chance
of effective legality, because informality—the conduct of trade outside the
official legal system—90will not work as a long-term, predictable legal
system.91
Esquirol articulates a solution, a progressive form of “legal
nationalism” that conceives of “formalism . . . as the autochthonous mode
of legal interpretation in the region.”92 Here, Esquirol’s work is
reminiscent of the debate in comparative law over the effect of “certainty”
as a positive legal principle in fascist Italy and Nazi Germany.93
“Sophisticated dichotomists,” according to Esquirol, breath new life into
the duality’s construct of a dichotomy between the formal and informal
legal sectors in all the nations of Latin America by recognizing the
existence of the separation without neglecting the official legal system as
when the legal system imposes rules which exceed the socially accepted legal framework—does
not honor the expectations, choices, and preferences of those whom it does not admit within its
framework—and when the state does have sufficient coercive authority.” Id. at 12. Accordingly,
there is a duality, a disjunction, between the formal legal system and the informal sector.
90. Hernando de Soto further explains the activities of the informal sector as follows:
The concept of informality used in this book is based on empirical
observations of the phenomenon itself. Individuals are not informal; their actions
and activities are. Nor do those who operate informally comprise a precise or
static sector of society: they live within a gray area which has a long frontier with
the legal world and in which individuals take refuge when the cost of obeying the
law outweighs the benefit. Only rarely does informality mean breaking all the
laws; most individuals disobey specific legal provisions . . . .
Id.
91. Esquirol presents LatCrit with a real challenge to its convictions. See generally Esquirol,
supra note 82. Progressive social and cultural consciousness are positive forces, but he questions
whether the theoretical paradigm makes it impossible for praxis to work. While not discounting the
dangers of legal pluralism in the hands of a repressive reactionary regime, Esquirol nonetheless
challenges progressives in and out of the Americas to re-engage with the official legal system and
formalist legal scholarship. Id. at 95. While the field is an inherently dangerous one, it is also the
only possible source of a long-term solution to the problems of informality in the nations of the
Americas. Id. Accepting informality is not the solution. Rather, we progressives must bridge the
gap between the formal legal system and the pluralistic legal cultures within the nation states of the
Americas. Id. at 96-97.
92. Id. at 107.
93. The long-held perception is that the formal use of certainty to oppose fascism allowed
Italian judges to become a force against the excesses of the Mussolini regime, whereas the
abandonment of it in Germany turned the German judiciary into a willing tool of Hitler’s regime.
See CIVIL LAW TRADITION, supra note 17, at 998-1004 (comparing the ability and willingness of
judges in Germany and Italy to resist their respective country’s fascist dictatorships by using or
abandoning the principle of certainty in the law).
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part of any sensible solution.94 In other words, the duality is not a
necessary part of the legal cultures of Latin America, it is rather a problem
that prevents everyone within those cultures from working within an
effective, pluralistic formal legal system.
Esquirol thus challenges the notion that Latin American cultures are by
nature lawless or chaotic. His work, and the scholarship he studies,95 may
provide us with the tools for a paradigmatic shift96 in the discourse of Latin
American legal cultures. One that must seek to bridge the gap between
formal and informal rules, and create a single pluralistic legal culture
within each Latin American nation.97
Both Gordon and Esquirol urge LatCrit to engage the cultures of the
nations of Latin America from a position of knowledge. This requires real
94. Esquirol, supra note 82, at 108.
95. Esquirol specifically discusses the work of Hernando de Soto, which identifies a lack of
anarchy in the informal economy, that is, the informal sector is not a completely lawless sector, nor
is it without rules, it is rather a marginalized group that has found it necessary to bypass the formal
legal system. It is however important to note that laws, substantive legal rules, are part of both the
formal and the informal legal system. See generally DE SOTO, supra note 89.
96. Philosophical paradigm shifts can be analogized to a process of religious conversion
because they are fundamentally subjective processes.
[A] scientific revolution occurs when one paradigm is replaced by another.
Paradigm shifts cause scientists to view the world in new and different ways.
During scientific revolutions, then, scientists experience perceptual shifts.
According to Kuhn, the transition from one paradigm to another is a conversion
experience that cannot be compelled by logical argument.
George A. Martínez, Philosophical Considerations and the Use of Narrative in Law, 30 RUTGERS
L. REV. 683, 701 (1999) (footnotes omitted). Therefore, Professor Martínez concludes “[s]ince
racial divisions are founded in something other than reason—i.e., deeply held prejudices and
sentiments—perhaps it can only be undone by techniques, such as narrative, that do not depend on
reason.” Id. at 705 (footnotes omitted). Or are those calling for paradigm shifts simply appealing
to common sense? See BOAVENTURA DE SOUSA SANTOS, TOWARD A NEW COMMON SENSE: LAW,
SCIENCE AND POLITICS IN THE PARADIGMATIC TRANSITION 518-19 (1995).
My objective, therefore, was not to present the blueprint of a new order, but
merely to show that the collapse of the existing order or disorder—which Fourier
significantly called “subversive order”—does not entail barbarism at all. It means,
rather, an opportunity to reinvent a commitment to authentic emancipation, a
commitment, moreover, which, rather than being a product of enlightened
vanguardist thought, unfolds as sheer common sense.
Id.
97. See Esquirol, supra note 82. While concerned about “foreign modeled realism” Esquirol
acknowledges that it does provide voice to traditionally disenfranchised peoples within the formal
legal system. Id. at 113. The dangers are that the discourse will not be tailored to the local legal
culture and that the colonial crisis of self-confidence will endow foreign models with undue
discretion that will create remedies not really effective within the legal systems of Latin America.
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comparative study, as Gordon particularly urges, and a non-essentialist
legal/political paradigm, as Esquirol writes. Gordon takes LatCrit to the
trade perspective on Public International Law, which is clearly an
important area for the exercise of LatCrit praxis. However, Esquirol
provides an important warning with his extensive and strong critique of
the law and development movement, and the enduring negative effects of
its inherent construction of the legal systems of Latin American nations,
as hopelessly de-linked from informal reality.98 His strong analysis of the
theoretical shortcomings of these theories will help to produce a new
paradigm, informed by LatCrit Theory, that will result in praxis to
empower the “informal” sector, rather than undermine the “formal” legal
systems of the Americas.
III. CONTINUING LATCRITICAL ENCOUNTERS WITH CULTURE IN
COMPARATIVE NORTH-SOUTH FRAMEWORKS
These new voices within LatCrit all had a common focus: Latin
American cultures—more precisely the legal and social construction of
cultures—and their relationship to legal theory and praxis. Because the
frame of reference of some of the authors and of members of the audience
cut across national borders, this is a comparative legal study of culture.
Comparative law is the study of law that is foreign to the observer;
thus, it requires a particular methodological/scientific approach.99 The
distinction between comparative methodology and comparative legal
science100 will depend on the intended use of comparative study. For
98. LatCrit has in fact studied trade issues. See, e.g., supra note 81. See also Colloquium,
International Law, Human Rights and LatCrit Theory, 28 U. MIAMI INTER-AM. L. REV. 177 (1996)
(noting that many of the articles in this colloquium focused on the intersection between human
rights and trade and development).
99. Accordingly,
Comparative Law is not a body of rules and principles. Primarily, it is a method,
a way of looking at legal problems, legal institutions, and entire legal systems. By
the use of that method it becomes possible to make observations, and to gain
insights, which would be denied to one who limits his study to the law of a single
country.
Neither the comparative method, nor the insights gained through its use, can
be said to constitute a body of binding norms, i.e. of “law” in the sense in which
we speak of “the law” of Torts or “the law” of Decedents’ Estates. Strictly
speaking, therefore, the term Comparative Law is a misnomer. It would be more
appropriate to speak of Comparison of Laws and Legal Systems . . . .
RUDOLPH B. SCHLESINGER ET AL., COMPARATIVE LAW 1 (5th ed. 1988) (footnotes omitted).
100. To the French, for example, comparative law (droit comparé) “is not a branch of the law,
but very specifically a part of the science of law (science du droit).” JEAN-LUC AUBERT,
INTRODUCTION AU DROIT 55 (5th ed. 1992) (author’s translation); see also DAVID & BRIERLEY,
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example, the practitioner of comparative legal science can assist persons
in other fields of the law to adopt the comparative method, either to avoid
the problems created by the misunderstanding of different legal cultures,
or to illuminate effective courses of action that are based on a real
understanding of those cultures. Comparative law is, in this context, an
effective and sophisticated system of legal translation and education,
because “[l]aw, taken alone and considered only in its strict theory, would
give a false view of the way in which social relations, and the place therein
of law, really operate.”101 A comparative legal theorist looking across
national borders ought to provide a full understanding of the law and its
underlying theory in their proper practical context.102 Analogously, LatCrit
is a jurisprudential school that seeks to illuminate legal praxis, and in this
particular conference it focused on the cultural context of law across
international boundaries.103
The cultures of the nations of the Americas are the products of physical
and intellectual colonization,104 which requires LatCrit to further develop
supra note 61, at 2-3, 11-13.
101. DAVID & BRIERLEY, supra note 61, at 14.
102. Goebel, supra note 59, at 447-48. Professor Goebel notes that this is not a universally
accepted tenet, id. at 454, but concludes, in my opinion correctly, that this is an important, even
essential requirement for properly carrying out our professional duties to our clients. For a general
discussion of the importance of understanding a legal system in its proper context, see generally
DAVID & BRIERLEY, supra note 61; GLENDON ET AL., NUTSHELL, supra note 77; CIVIL LAW
TRADITION, supra note 17, at 113-115; JOHN HENRY MERRYMAN & DAVID S. CLARK,
COMPARATIVE LAW: WESTERN EUROPEAN AND LATIN AMERICAN LEGAL SYSTEMS: CASES AND
MATERIALS (1978); SCHLESINGER ET AL., supra note 99, at 1; KONRAD ZWEIGERT & HEIN KÖTZ,
1 INTRODUCTION TO COMPARATIVE LAW: THE FRAMEWORK 68 (Tony Weir trans., 2d ed., 1987).
103. LatCrit seeks to be heard by and to assist our colleagues from the South but, in seeking
to hear other voices, LatCrit is also enriched by learning to look at itself from a different frame of
reference. This is a process similar to a traditional comparativist turning the study of a foreign legal
system into a critical look at their own rules and procedures. The comparative method will give a
national scholar “a better understanding of his own law, assist in its improvement, and . . . open[]
the door to working with those in other countries in establishing uniform conflict or substantive
rules or at least their harmonisation.” DAVID & BRIERLEY, supra note 61, at 11-12.
104. Homero Manzi put it as follows:
Nuestra pobre América, que comenzó a rezar cuando ya eran prehistoria los
viejos testamentos . . . cuando la historia estaba llena de guerreros, el alma llena
de místicos, el pensamiento lleno de filósofos, la belleza llena de artistas, y la
ciencia llena de sabios . . . Todo lo que cruzaba el mar era mejor y, cuando no
teníamos salvación, apareció lo popular para salvarnos.
HÉCTOR GAGLIARDI, P OR LAS CALLES DEL RECUERDO 5 (1970) (emphasis added). Author’s
translation:
Our poor America (meaning the continents, not the one country), which started to
pray when the testaments where pre-history . . . when history was full of warriors,
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the paradox of the colonized: that the society that this process left behind
after the end of the colonial period is both for better and for worse, the
product of the mixture of people, cultures, and laws brought together by
the colonization process. Accordingly, postcolonial societies often fall
victim both to external cultural imperialism105 and to internalized
oppression.106 The former colonized peoples intellectually and culturally
colonize themselves and prey upon each other by adopting and
perpetuating the essentialized hierarchies of the former colonial power. As
a result of this process, the peoples themselves are the colonizers and the
colonized.
the soul full of mystics, thinking was full of philosophers, beauty was full of
artists, and science was full of wise men . . . . Everything that crossed the sea was
better and, just when we were beyond salvation, the popular [culture] appeared to
save us.
Id. I realize that this quote is told from an Eurocentric perspective that might be read to exclude the
Native American contribution, but the Native American is a crucial element in the Latin-American
popular cultures that distinguishes us from the conquistadores peninsulares (peninsulares is a
reference to persons born on the Iberian Peninsula).
105. Carla Freccero explains that:
Imperialism can [occur] on different levels and usually involves territorial
annexation, economic and political annexation, juridical (legal) annexation, and
ultimately ideological and cultural annexation; these latter are often referred to as
cultural imperialism . . . . [C]ultural or mental decolonization [is] a
“literature/criticism that is participatory in the historical processes of hegemony
and resistance to domination rather than (only) formal and analytic.” Collective
and concerted resistance to programmatic cultural imperialism thus comes to be
called “cultural” or “mental” decolonization.
CARLA FRECCERO, POPULAR CULTURE: AN INTRODUCTION 68 (1999) (citations omitted).
106. The internalization of oppression occurs when a group that is oppressed by the normative
society replicates some forms of oppression to marginalize members of its own community along
lines of discrimination that parallel those of the normative group. For example, women might be
subordinated by the men within the group, and among African Americans, lighter skin hues are
considered more desirable. Oliva Espín explains the paradox of a group that is the object of
discrimination marginalizing members of its own community:
The prejudices and racism of the dominant society make the retrenchment into
tradition appear justifiable. Conversely, the rigidities of tradition appear to justify
the racist or prejudicial treatment of the dominant society. These “two mountains”
reinforce and encourage each other. Moreover, the effects of racism and sexism
are not only felt as pressure from the outside; like all forms of oppression, they
become internalized . . . .
OLIVA W. ESPÍN, WOMEN CROSSING BOUNDARIES: A P SYCHOLOGY OF IMMIGRATION AND
TRANSFORMATION OF SEXUALITY 8 (1999).
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In its Latin American variant, the best challenge to the process of selfcolonization is the development of the “popular,” the home-grown forms
of culture in all its variations, including recognizing that the dominant
popular Latin American cultures co-exist with subordinated (mostly
indigenous) systems, thus re/creating patterns of colonialism. The Sixth
Annual LatCrit Conference, and the essays included in this cluster, are part
of the process of challenging existing power hegemonies by recognizing
the real and vibrant legal cultures of the nations of Latin America, albeit
from a critical perspective. Together, they adopt a philosophically
communitarian,107 cultural studies108 view of the term “culture,” meaning
that
culture is a whole way of life (ideas, attitudes, languages,
practices, institutions, structures of power) and a whole range
of cultural practices: artistic forms, texts, canons,
architecture, mass-produced commodities, and so on. Culture
means the actual grounded terrain of practices,
representations, languages, and customs of any specific
historical society. Culture, in other words, means not only
“high culture,” what we usually call art or literature, but also
the everyday practices, representations, and cultural
productions of people and of postindustrial societies.109
107. The communitarian concept of citizenship views the “citizen as a member of a
community.” Herman Van Gunsteren, Four Conceptions of Citizenship, in THE CONDITION OF
CITIZENSHIP 36, 41 (Bart van Steenbergen ed., 1994). “This conception strongly emphasizes that
being a citizen means belonging to a historically developed community. Individuality is derived
from it and determined in terms of it.” Id. Moreover, “identity and stability of character cannot be
realized without the support of a community of friends and like-minded kindred.” Id.
108. Carla Freccero explains that the
term “cultural studies” covers a range of theoretical and political positions that use
a variety of methodologies, drawing on ethnography, anthropology, sociology,
literature, feminism, Marxism, history, film criticism, psychoanalysis, and
semiotics. Cultural studies is anthropological, but unlike anthropology, it begins
with the study of postindustrial rather than preindustrial societies. It is like
humanism, but unlike traditional humanism it rejects the distinction between socalled low culture and high culture and argues that all forms of culture need to be
studied in relation to a given social formation. It is thus interdisciplinary in its
approaches. Cultural studies “has grown out of efforts to understand what has
shaped post World War II societies and cultures: industrialization, modernization,
urbanization, mass communication, commodification, imperialism, a global
economy.”
FRECCERO, supra note 105, at 14 (footnotes omitted).
109. Id. at 13.
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LatCrit encourages the development of the concept of cultural nationhood
or citizenship to differentiate the colonized peoples from their colonial
oppressors110 because it can be used as a source of empowerment,
consciousness, and pride.111 But, this cultural exploration might produce
legitimate concerns over the dangers of nationalism112 and cultural
imperialism. Accordingly, LatCrit Theory illuminates the proper balance
between identifying cultural faultlines that require reform, and the
imposition of cultural imperialism that seeks a homogenized normativity
that only perpetuates the supremacies promoted by the colonial power.
As all the essays in this cluster indicate, the post-colonial cultures of
the Americas are the result of the racial, gender, and political mix created
by the colonizer.113 The Spaniards effectively designed the blueprint for
the gender, cultural, religious, ethnic, and racial mix in the Spanish
Americas by conquering and destroying the indigenous peoples, raping the
indigenous women,114 bringing in settlers, allowing immigration, and
importing African slaves.115 The Spanish then used law to define and
organize their practically constructed local societies.
LatCrit takes a critical look at those cultures and recognizes and
celebrates their strengths. But it also criticizes their shortcomings and
provides the theoretical vision to resolve them. Thus, LatCrit, as a premier
110. See, e.g., Malavet, supra note 39 (explaining that the Puerto Ricans are culturally distinct
from the normative U.S. society).
111. Hence, “othering” can be used as a subversive force that empowers marginalized colonial
peoples. See Addis, ETHNICITY, supra note 42, at 127.
112. In speaking of the dangers of nationalism, Ronald Beiner ponders “[e]ither fascism is a
uniquely evil expression of an otherwise benign human need for belonging; or there is a kind of
latent fascism implicit in any impulse towards group belonging.” Ronald Beiner, Introduction, in
THEORIZING CITIZENSHIP, supra note 47, at 19.
113. Adeno Addis, in arguing against secession, identifies the need for co-existence: “Whether
the multiplicity is the ‘unintended’ consequence of colonialism or the organizing principle, the
defining feature, of the particular nation-state, the uncontroverted fact is that most nations are
indeed multiethnic and multicultural.” Addis, supra note 111, at 113.
114. I am not entirely comfortable with the use of the term “rape” here. As Margaret Montoya
explains: “Choosing the right word [to describe ‘sexual relations between the Spanish
conquistadores and the indigenous women of the Americas’] is difficult . . .; perhaps rape is the
accurate term, but it denies agency to all the indigenous women in the past who were involved in
cross-racial relations.” Margaret E. Montoya, Academic Mestizaje: Re/Producing Clinical Teaching
and Re/Framing Wills As Latina Praxis, 2 HARV. LATINO L. REV. 349, 351 n.3 (1997). The concept
of “agency” implies that people can be the objects of action or its subjects, the performers of acts,
i.e., the agents of action. When one is a subject, one acts as an agent for some purpose, hence, one
is exercising agency. MICHAEL WALZER, ON TOLERATION xi (1997). When a person lacks the
power/capacity to take action, s/he is deprived of agency.
115. For descriptions of the process of construction of the Spanish colonial cultures in the
Americas, see Hernández-Truyol, supra note 71, at 76-79 (providing a general description with
specific examples regarding Mexico and Cuba); Malavet, supra note 39, at 12-20, 55-74 (describing
the development of Puerto Rican culture).
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example of the current deconstructionist postmodern age, rejects the idea
of liberal universalism as being “merely a cover for an imperialistic
particularism.”116 Postmodernism also points out the theoretical
shortcomings of current philosophical movements, and warns against the
mistakes of extremism at any end of the philosophical spectrum.117 This
is especially true when one in engages in cultural studies, particularly
legal/comparative cultural studies, such as those included in this
Symposium.
LatCrit contends that the peoples of Latin America must be able to
develop “shared identities”118 within their own community as political and
cultural citizens of their respective republics —or within the United States
community that is most familiar to LatCritters—as political citizens of the
nation who have their culture respected by the normative society. The
alternative, to construct any people as cultural “citizen[s] of the world,”119
116. Beiner, supra note 112, at 9. “Appeals to universal reason typically serve to silence,
stigmatize and marginalize groups and identities that lie beyond the boundaries of a white, male,
Eurocentric hegemon. Universalism is merely the cover for an imperialistic particularism.” Id.
117. Beiner, for example, describes what he calls the “universalism/ particularism
conundrum,” as: “[t]o opt wholeheartedly for universalism implies deracination—rootlessness. To
opt wholeheartedly for particularism implies parochialism, exclusivity, and narrow-minded closure
of horizons.” Id. at 12.
118. Addis explains:
By “shared identity” I mean to refer to an identity that bonds together, partially
and contingently, minorities and majorities, such that different cultural and ethnic
groups are seen, and see themselves, as networks of communication where each
group comes to understand its distinctiveness as well as the fact that
distinctiveness is to a large degree defined in terms of its relationship with the
Other. Viewed in this way, the notion of shared identity is not a final state of
harmony, as communitarians would claim. It is rather a process that would allow
diverse groups to link each other in a continuous dialogue with the possibility that
the life of each group will illuminate the conditions of others such that in the
process the groups might develop, however provisionally and contingently,
“common vocabularies of emancipation,” and of justice. I think Seyla Benhabib
is right when she observed that “[t]he feelings of friendship and solidarity
result . . . through the extension of our moral and political imagination . . . through
the actual confrontation in public life with the point of view of those who are
otherwise strangers to us but who become known to us through their public
presence as voices and perspectives we have to take into account.”
Addis, supra note 111, at 127 (footnotes omitted).
119. MARTHA C. NUSSBAUM, FOR LOVE OF COUNTRY: DEBATING THE LIMITS OF PATRIOTISM
5 (1996). Nussbaum advocates cosmopolitan citizenship thusly:
The accident of where one is born is just that, an accident; any human being might
have been born in any nation. Recognizing this, [Diogenes’] Stoic successors held,
we should not allow differences of nationality or class or ethnic membership or
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would constitute an imposed homogeneity. Critical scholars should reject
the notion that being Mexican, Puerto Rican, Cuban, Columbian, Chilean
(or American, or Irish) first and a citizen of the World second is morally
questionable or irrelevant.120 Nationalism, or as the authors discuss,
national consciousness and sensibility, may be deployed as a positive
force,121 as long as it is limited by a pluralistic communitarian
consciousness.122 In this context, the peoples of the Americas should be
able to choose to be patriots of their chosen nation,123 more generally,
even gender to erect barriers between us and our fellow human beings. We should
recognize humanity wherever it occurs, and give its fundamental ingredients,
reason and moral capacity, our first allegiance and respect.
Id. at 7.
120.
Once someone has said, I am an Indian first, a citizen of the world second, once
he or she has made that morally questionable move of self-definition by a morally
irrelevant characteristic, then what, indeed, will stop that person from saying, as
Tagore’s characters so quickly learn to say, I am a Hindu first, and an Indian
second, or I am an upper-caste landlord first, and a Hindu second? Only the
cosmopolitan stance of the landlord Nikhil—so boringly flat in the eyes of his
young wife Bimala and his passionate nationalist friend Sandip—has the promise
of transcending these divisions, because only this stance asks us to give our first
allegiance to what is morally good—and that which, being good, I can commend
as such to all human beings.
Id. at 5 (emphasis added) (referring to THE HOME AND THE WORLD, a novel by Tagore).
121. Michael Walzer describes this type of nationalism:
The quality of nationalism is also determined within civil society, where national
groups coexist and overlap with families and religious communities (two social
formations largely neglected in modernist answers to the question about the good
life) and where nationalism is expressed in schools and movements, organizations
for mutual aid, cultural and historical societies. It is because groups like these are
entangled with other groups, similar in kind but different in aim, that civil society
holds out the hope of a domesticated nationalism. In states dominated by a single
nation, the multiplicity of the groups pluralizes nationalist politics and culture; in
states with more than one nation, the density of the networks prevents radical
polarization.
Michael Walzer, The Civil Society Argument, in THEORIZING CITIZENSHIP, supra note 47, at 153,
166.
122. In other words, nationalism does not have to be inherently fascist. See supra note 112.
123.
Richard Rorty urges Americans, especially the American left, not to disdain
patriotism as a value, and indeed to give central importance to “the emotions of
national pride” and “a sense of shared national identity.” Rorty argues that we
cannot even criticize ourselves well unless we also “rejoice” in our American
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peoples of the world should be able to choose a national affiliation. While
nationalism cannot become dogma,124 cultural sovereignty within a
supranational political culture that empowers the marginalized125 would
allow the nations of Latin America—and the Estados Unidos de
Norteamérica (the United States of America)—to live up to the ideal of a
diverse “political culture” that exercises “constitutional patriotism.”126
IV. CONCLUSION: BIENVENIDAS/OS, AMIGAS/OS AMERICANAS/OS
LatCrit VI, and this issue, have brought to the forefront new voices in
legal scholarship. This is part of the process of resisting the suppression
of scholars of color within the United States legal academy.127 But it is
more importantly about expanding the LatCritical exploration of law,
theory, and praxis within a newly-enriched United States legal scholarship.
The essays in this cluster are a major contribution to creating a link
between the existing LatCrit emancipatory theory and praxis, and the
existing and developing academic environment in North and South
America.
This part of the Symposium issue presents new voices and new
discourses that develop, expand, transform, and enrich LatCrit Theory.
These essays collectively provide an important lens to re/view the
multicultural and multiracial Latin American societies, and thus to
challenge the inherited racialized constructs of the nations of the world
generally, and those of Latin America in particular. The fundamental
paradigmatic shift that brings all the authors together is the denial of the
identity and define ourselves fundamentally in terms of that identity. Rorty seems
to hold that the primary alternative to a politics based on patriotism and national
identity is what he calls a “politics of difference,” one based on internal divisions
among America’s ethnic, racial, religious, and other subgroups. He nowhere
considers the possibility of a more international basis for political emotion and
concern.
NUSSBAUM, supra note 119, at 4.
124. J.G.A. Pocock uses the French Revolution as an example to describe the terrifying results
of citizenship becoming dogma which justifies the destruction of your “enemies,” that is, outsiders.
The French revolution went from an uprising of citizens against the ancien regime, to the terror of
citizenship being deployed to justify the destruction of the enemy. Virtue became terror. See J.G.A.
Pocock, The Ideal of Citizenship Since Classical Times, in THEORIZING CITIZENSHIP, supra note
47, at 29, 50.
125. See Jürgen Habermas, supra note 47, at 264.
126. Id.
127. To do otherwise, of course, would again create the incongruity identified by Richard
Delgado in the Imperial Scholar that the civil rights discourse in legal scholarship is being
dominated by the normative voices of White males and, thus, is fundamentally incomplete. See
Richard Delgado, Comment, The Imperial Scholar: Reflections on a Review of Civil Rights
Literature, 132 U. PA. L. REV. 561 (1984).
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colonial myth of a single mixed race for Latinas/os, by pointing out that
those constructs in fact create internalized oppressions that deprive the
same marginalized persons, especially dark-skinned African descendants
and indigenous peoples, of voice within the national discourse (as
emphasized particularly by the work of Hugo Rojas and Susan Scafidi).
Additionally, as García-Villegas, Gordon, and Esquirol point out, serious
analysis of, and engagement with, the national legal systems of the
Americas is essential to the success of any movement that wishes to
empower the americanas/os.
LatCrit theory and praxis were well served by the oral presentations
made by these authors at LatCrit VI, and the growing permanent record of
LatCrit scholarship, memorialized in this Symposium issue, is enriched by
it. ¡Bienvenidas/os!
CONTINUING FICTIONS OF LATIN AMERICAN LAW
Jorge L. Esquirol*
I.
THE 1960S-1970S LAW-AND-DEVELOPMENT PARADIGM . . . . . 46
A. Social Theory of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
B. Gap Between Law and Society . . . . . . . . . . . . . . . . . . . . . . . 53
C. Arcane and Formalist State Law . . . . . . . . . . . . . . . . . . . . . 57
D. Legal Informality as an Argument for
Development Politics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
II.
BRIDGING THE EVER-PRESENT GAP: THE DEVELOPMENT
ATTEMPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
III. ROLLING UP THE BRIDGES (ACROSS THE GAP) . . . . . . . . . . . . . 69
IV. CRITIQUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
A. Critique of Latin American Duality . . . . . . . . . . . . . . . . . . . 81
B. Critique of an Identity Approach to Latin American Law . . 83
C. Critique of “Exoticized” Latin American Law . . . . . . . . . . 86
D. Critique of the Hyper-Social . . . . . . . . . . . . . . . . . . . . . . . . 89
V. TRADITIONAL LEGAL DISCOURSE REINFORCED . . . . . . . . . . . . . 92
VI. FROM THE SIDELINES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
A. The Politics of Autochthonous Social Law . . . . . . . . . . . . . 99
B. Abandonment of Progressive, Counter-Dominant Law . . . 101
C. Foreclosing the Potential for a More Pragmatic
Legal Discourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
VII. SOME WAYS OUT OF THE DEVELOPMENTALIST BIND . . . . . . . 106
A. Unapologetic Formalists . . . . . . . . . . . . . . . . . . . . . . . . . . 107
B. Sophisticated Dichotomists . . . . . . . . . . . . . . . . . . . . . . . . 108
C. Foreign-Modeled Realists . . . . . . . . . . . . . . . . . . . . . . . . . 111
VIII. CONCLUDING THOUGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
* Professor of Law, Florida International University College of Law. My deep gratitude to
Charles Donahue, David Kennedy, Máximo Langer, Liliana Obregón, Clara Sandoval, and the May
9, 2001 participants of the Harvard Law School S.J.D. Colloquium for their wonderful comments
and suggestions.
41
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Law in Latin America is routinely the target of systemic criticism by
U.S. commentators. Marked by underdevelopment and corruption in the
region, national legal systems are considered part of the problem and not
the solution. As a result, numerous reform proposals advocate the
internationalization of traditionally national legal domains. International
competence in the form of the Inter-American system, NAFTA, a free trade
area of the Americas or World Bank intervention in national judiciaries
will not, however, supplant most of the hemisphere’s law. Whatever
expectations the global arena may hold, local law will continue to play a
substantial role. In addition, internationalizing reforms may actually
undermine the general goal of expanding democratic participation.
Distancing the operation of law from local reach is likely to reinforce the
very anomalies already perceived in the region. In this light, we should reexamine our settled understandings of “Latin American law” and the
latter’s widely-noted limitations. This Essay advances the task of rethinking some of the basic background beliefs.
The most substantial body of U.S.-based, legal writing on the region
remains the development scholarship of the 1960s and 70s. At the time,
many U.S. legal scholars turned their attention to promoting economic
development through law reform. With respect to Latin America, their
diagnosis was that excessive legal formalism constituted the main
stumbling block to growth and the redistribution of wealth. State law, the
sum of official rules and regulations, was seen as operating quite separately
from the needs and characteristics of Latin American societies. The image
of a wide gap was used to characterize the distance separating the written
law, sanctioned by the State, and the living law—the actual rules which
people follow. Moreover, the perceived disconnection of Latin American
peoples from their legal institutions was, in turn, taken as reflecting a host
of societal and cultural particularities unmet in the law. These same
critiques and images continue to be expressed today: “antiquated Latin
American law is insufficient to meet the needs of developing societies and
economies”; “legal techniques are unresponsive to the societal goals of
development, efficiency and rationality”; and “judicial administration is
arcane and ineffective.” Moreover, these same core beliefs can be expected
to influence the structure of hemispheric trade agreements and to inspire
more program proposals by non-governmental organizations.
Development scholars sought to address these same dysfunctions
several decades ago by proposing a range of remedies, especially in the
area of access to the courts and legal education. The legal culture, it was
argued, should better square with modernization and its priorities. New
legislation was suggested in furtherance of economic activity; new
methods were introduced to make the legal process more accessible; and,
a different conception of the role of law in society was advanced as crucial.
Latin American lawyers and legal operators were urged to exchange their
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professional tools for more pragmatic implements. While never really
attaining much impact in Latin America, the Cold War project of law-anddevelopment quickly succumbed to its critics, not the least of whom were
some of its very practitioners. For many, the end was the result of
authoritarian Latin American governments and the manipulation of wellintentioned reforms. Development-style legal pragmatism, it seemed,
simply lent credibility to the then reigning military rulers in the region,
with its malleable conceptions of law and legitimacy. The traditional legal
formalism of Latin America at least appeared to offer a way of holding an
intractable law, with whatever protections and guarantees it offered, over
authoritarian states and illegitimate regimes. For others, developmentalism
failed because of the shortcomings of its proponents. Armed with an
insufficient understanding of the workings of Latin American law, these
early scholars are viewed in retrospect, by some, as not sufficiently attuned
to local legal cultures. Notably, today’s neo-developmentalists stress this
latter explanation for earlier failings and are quick to note, as a course
correction, their now extensive collaboration with Latin American legal
scholars and institutions and their current advisory rather than directing
roles.
In any case, while its immediate goals may have been foiled, the
scholarship of developmentalism and the framework it erected for thinking
about law in Latin America continue to have far-reaching effects. The
images it created remain well-entrenched in the minds of U.S. academics
and policy planners. First, while claiming to offer a realistic diagnosis of
the failings of Latin American legal systems, developmentalists pressed a
commonplace argumentative strategy. The gap between law and society,
or the discrepancy between social and legal spheres, is a common trope
throughout jurisprudence. Development experts pressed this image,
though, as a way to usher in a series of broad-scale reforms. Purporting to
align the legal system with social needs, they were able to launch changes
in substantive law, legal education, and litigation, which would have in all
likelihood been more difficult if introduced piecemeal and debated on their
own merits through more open processes.
Second, developmentalism’s deployment of social incongruity as the
basis for its intervention has produced a sort of legal orientalism. That is,
it has generated a depiction of law and society in Latin America which is
quite indefensible as pure description: Law is presented as qualitatively
distinct from social relations. In this same vein, Latin America is purported
to be the site of more, and more divergent, legal pluralism than one would
find elsewhere. This strategic portrayal of Latin America, more than just
shoddy empiricism, has a perverse effect. It continually discredits Latin
American legal institutions by calling for a different legal model, projected
and idealized as truer to economic and social realities. Repeated iterations
of these notions as empirical description have lodged these images as a
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special peculiarity, or identity, of Latin American law. That is, the
significant focus and writing on Latin America during the high period of
developmentalism has had a profound influence on commonly-accepted
notions about Latin American law and legal systems. More than at any
other time, U.S. law reviews constructed the picture of a Latin American
legality. Their central images, part of a rhetorical strategy, cemented the
notions of an abnormal, Latin American gap between law and society and
a culturally or socially distinct normativity peculiar to Latin American
peoples.
In this background way, 1960s developmentalism and its aftermath
have structured the politics of law in Latin America for subsequent
generations. Highlighting the dissonance between state law and social
practice, as developmentalists did, has over time entrenched a deep
skepticism as to the relevance and desirability of the former. Specifically,
and here one of the main points of this Essay, it has led to increased
disengagement by progressives with official legal discourse, especially
with respect to struggles over the meaning of legal norms. And, it has
skewed debates over the appropriate mix of regulatory versus informal
mechanisms of societal governance. Progressives are led to advocate
automatically and reflexively for the informal end of the equation, putting
all stock in social-based solutions, understood as reflecting a distinct,
identity-based normative system. By contrast, state law is identified with
illegitimate elites and portrayed as mere ideological cover for the ruling
classes. It is argued that a more effective and appropriate law should take
its place—characterized as a more autochtonous law or, alternatively,
modern law, the U.S. legal model, or transnational law. As such,
engagement with state law is projected as a sterile endeavor, relegated to
the ministrations and concerns of Latin American elites. In its place,
attention is drawn to autochtonous social spheres of normativity or,
alternatively, a foreign model. As a result, questions over informality or
non-state intervention in certain areas of the economy and society are
displaced, never taken up as issues of political and economic interests
directly, but rather as matters of essentialist legal identities outside state
law.
The impact of developmentalism was also significant in other
unexpected ways. Clearly, the call for a renegotiation of existing social and
economic arrangements fell on deaf ears among Latin America’s legal
traditionalists. They dismissed any such social-based argument and rather,
if anything, cast it as political maneuvering and not serious legal reform.
Responding to this marginalizing move over time, subsequent generations
of progressives have—misdirectedly I argue below—pursued a strategy of
separate but equal systems of legality, with social norms as the source of
such separate systems and the banner for a populist legal politics. This
approach, consisting of an acute emphasis on social practices, a
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qualitatively distinct Latin American conception of law, and the idea of
legal particularity across identity groups in the region—taken together,
what I call the hyper-social—can be understood as a product of 1960s
developmentalism. Its persistence as a progressive legal strategy, as well
as its intrinsic marginality, is especially connected to the way in which
legal developmentalism was successfully rebuffed.
The notion of official law’s social incongruity, beyond just a formula
for promoting the law-and-development program in the 1960s, has retained
a special appeal in Latin America. Indeed, its general acceptance as
uncontroversial diagnosis, for both the right and the left in legal politics
terms, is a central topic of this Essay. The notion’s persistence might, at
first blush, be seen as an open challenge to traditional Latin American
jurists, a constant reminder of the fragility of national legal systems as
against the overwhelming weight of divergent social forces. And indeed,
neo-developmentalists continue to play on this image in just this way.
Images produced by progressives in the 1960s serve just as well to push for
a neoliberal renovation of Latin America’s discredited legal systems today;
this time following the logic of the market rather than state-directed growth
and redistribution.
For progressives still operating under this same “development”
framework, the usefulness of this strategy has long come to an end. It has
induced new generations to engage in a prolonged and unfruitful search for
the actual substantive content of Latin American social normativity.
Instead of challenging traditionalist interpretations of official law, and
openly questioning which sectors benefit from informality, demands are
premised on a separate social code, typically posited and sought outside the
official legal realm. Countless efforts have been expended in confirming
the existence and substance of these separate codes. At the same time, the
degree to which the Latin American gap between law and society is greater
than elsewhere is repeatedly accentuated, and the static character and social
irrelevance of state law reinforced.
Official legal discourse, of course, remains central to the distribution
and maintenance of economic, political and social power. It serves as a
significant locus of societal struggle. State law’s interpretation and
potential re-conceptualization, even if performed in outwardly opaque
fashion, is a chief mode of social governance. It remains the site for
advancing governance alternatives and cementing existing configurations.
It is constitutive of the economy and society, and most importantly of
sectors remaining outside direct state involvement. Furthermore, its role in
structuring access to the global arena, by local interests and popular forces,
while by no means exclusive, will surely remain considerable. Thus, to the
extent developmentalism has swayed progressives to abandon their
engagement with official legality, the effect has been to concede significant
power. Freed of such academics and activists, traditional jurists can more
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easily dominate legal interpretation. All the while, this dichomotization
reinforces traditionalism’s monopoly over official law and its claims to a
non-politicized legality—and thus to law, tout court. In this connection, a
legacy of 1960s developmentalism is a more undemocratic legal discourse
in Latin America.
The effects mentioned above work a great disservice to the
understanding of law in the region as well as to progressive intervention in
this field. Abandoning official law to the most conservative actors within
Latin America reinforces, if not produces, the very notion of its exclusivity
to elite sectors. Furthermore, normalizing as fact a pathological
disconnection between official law and local society undermines the
legitimacy of law generally within popular consciousness, without any
qualitatively better or less problematic substitute. Social normativity as an
operational system, even if elevated to the rank of official law, cannot
avoid on-going societal struggles over political conservatism, elite
monopolies, and discursive hegemonies. None of these can be magically
sidestepped. At most, social normativity offers a different terrain for these
same battles. Moreover, the social field as deployed by progressives today
does not serve them well. On the contrary, the discredit heaped on national
legal systems has mostly worked to open the door to—or at least make it
more difficult to resist—frequent proposals for transplants of foreign law
or foreign models. While legal imports may not embody a determinate
political valence (either multi-nationals or barrio dwellers might be
benefitted in a particular instance), they typically do deprive local actors
of transparent engagement with the political choices inherent in
lawmaking. And, they fail to solve the proffered problem of legitimacy,
said to consist of the current system of non-participative and mystified
lawmaking, by replacing it with more of the same.
In this Essay, I focus on the ideas about law in Latin America
embedded in law and development scholarship of the 1960s and 1970s. I
criticize the particular way in which these ideas have subsequently been
given content. Additionally, I highlight their impact on legal thinking in
and about Latin America. Finally, I describe alternative ways to conceive
of the relationship between society and law in the region. While a
significant body of neo-development scholarship has been produced in the
last two decades, my aim is not to describe developmentalism over time,
but rather to highlight the particular legacy of its earlier variety and the
reactions it provoked in Latin America.
I. THE 1960S-1970S LAW-AND-DEVELOPMENT PARADIGM
My focus in this Part is to highlight the key ideas of the 1960s and
1970s law-and-development movement. Numerous theories about law’s
relation to the economy and to society have been advanced throughout the
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past century, including various theories finding favor within Latin
America. Some of these overlap with the notions identified here.1 To the
extent they coincide, this Essay then speaks to potentially multiple
intellectual traditions. However, my line of analysis is U.S. law-anddevelopment. Different attempts have already been made at articulating its
central paradigm.2 These have mostly focused on identifying the
conceptual models and political forces that influenced developmentalists.3
My approach is quite different. It examines the rhetorical structures
used by development scholars, the images drawn upon, and especially the
framework they offer us for thinking about, and acting in relation to, Latin
American law.4 Rather than characterizing “legal development” as some
sort of system or model (even a highly variegated or multiply-defined one)
in which the central question is its acceptance or rejection (even if this is
considered in light of deeply local variables), I examine legal
developmentalism as a set of argumentative structures, deployed at a
moment in time by a group of legal professionals, to achieve their specific
aims. The latter, simply put, consisted of exporting a part of U.S. legal
discourse under the assumption it would support both economic growth
and social justice.
My objective in this Essay is to highlight the generic legal strategies
that inform developmentalists’ “diagnosis” of Latin American law, to note
1. For example, the “alternative uses of law” movement within the Italian judiciary or the
“Critique du droit” scholars in France, both important in the 1970s, present a number of
complementary ideas about law. The specific contours of these and the uses made of them in Latin
America are, however, subjects for other work.
2. See JAMES A. GARDNER, LEGAL IMPERIALISM: AMERICAN LAWYERS AND FOREIGN AID IN
LATIN AMERICA (1980); Richard Bilder & Brian Z. Tamanaha, Book Review and Note Review
Article, 89 AM J. INT’L L. 470 (1995) (reviewing 2 LAW AND DEVELOPMENT: LEGAL CULTURES
(Anthony Carty ed., 1992) and LAW AND CRISIS IN THE THIRD WORLD (Sammy Adelman & Abdul
Paliwala eds., 1993)).
3. See generally GARDNER, supra note 2 (presenting legal development as a system or
model–a U.S. one–which was sought to be transferred to Latin America). Gardner’s account
describes the failure of this project on the basis of the inherent vulnerabilites of the U.S. model and
its manipulation “in tropic, authoritarian climates.” Id. at 11. Concededly, his account contains a
nuanced description of the “model” and an contextualized account of the local, political, and legal
culture. The approach here, however, offers an alternative way of understanding developmentalism
and its failures. It resists characterizations of the development project as the U.S. legal model, as
well as, it resists characterizing its non-favorable reception in Latin America as the result of Latin
American legal or political culture. Instead, I present an account of the actors within legal and
political circles who deploy cultural and legal arguments for and against different projects.
4. An immediate objection, and a routine one, to the notion “Latin American” or more
specifically “Latin American law” is its imprecision. Indeed, the existence of any such thing is
highly debated. Still, the concept has been used historically, as either referring to the identity of law
in the region or to a particular political project (of course, these two are not by any means mutually
exclusive). The analysis here is intended precisely to dismantle the specific meaning of “Latin
American law” resulting from development scholarship.
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their deployment of these arguments as empirical description of law and
society in the region, and to remark on the effect that the continued
acceptance of these ideas, as part of the nature of Latin American law, have
on legal politics within Latin America. As a result, my analysis is
concerned more with development scholarship than with particular projects
proposed or implemented in Latin America. Of course, these are interrelated, as much of this scholarship describes then current or past projects.
Another focus of my analysis is the reaction of traditional Latin
American legal scholars to the project of developmentalism, as well as the
lasting consequences of the development effort. Accordingly, I draw into
consideration the reactions of Latin American jurists, as active
interlocutors, and not simply as accepting or resisting of foreign aid. The
demise of developmentalism in the 1970s cannot be explained solely in
terms of cuts in assistance funding or political debates occurring in the
United States—although these are important—but depends on the appeal
and receptivity of the project in the legal political context of Latin
America. This is quite different than saying that legal development or that
a “U.S. model” was manipulated by Latin American dictators, thereby
causing the project’s failure,5 or that Latin American legal culture is of a
different quality—whether socially or culturally—rendering antiformalism
or pragmatism impracticable. It highlights, instead, how Latin America’s
legal intelligentsia reacted to an attempt to change the rules of the game.
Law and development is more important, in Latin America, because of its
failure than because of any significant impact of its programs. And, the end
of developmentalism is meaningful because of the role it played within
Latin American legal politics and because of the impact of its scholarship
on persisting rhetorical constructions.
Law-and-development was, for the most part, a politically progressive
movement within the U.S. legal academy. Riding on the coattails of
development economics, legal developmentalism went hand-in-hand with
reformist approaches to social justice and the redistribution of wealth in
Latin America. Political stability and economic growth were understood
as inter-connected. Achieving both was U.S. policy in the 1960s, an
5. See GARDNER, supra note 2, at 5. The author blames the failings of developmentalism on
the shortcomings of the U.S. legal model, but especially on the manipulability of U.S. style
antiformalism in the Latin American context. See id.
The analysis in both parts of the volume suggests that the American legal models
carried abroad had built-in flaws and vulnerabilities, and that these surfaced and
were clearly illuminated in the harsh exposure of the Third World. As shown in
the case studies, the American legal models demonstrated a vulnerability to
authoritarian ordering and abuse.
Id.
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attempt to counter more revolutionary appeals such as the Cuban
Revolution of 1959. Of course, developmentalists can be found in varying
stripes.6 The movement became quite radicalized at both ends of the
spectrum. On the right, economic progress turned into a justification for
military governments and the systematic repression of social demands.
Pinochet’s Chile is a bold example. It is mostly this version of
developmentalism which survived through the 1980s. Right-wingers
ultimately turned to private markets, instead of the military, as the
discipline to produce economic growth. On the left, the promise of
economic development came to be seen as illusory, the relationship
between developed and underdeveloped countries more static and
symbiotic than collaborative and evolutionary. Dependency theory drove
these points home.7 Today, the progressives that are engaged in economic
development debates work mostly from a defensive posture: arguing for
some continuing role for the state over the market and highlighting the
human toll of an unbridled economic logic.
My portrayal of law-and-development scholarship here draws mostly
from the progressive middle, and from the first wave of developmentalism,
which constitutes the bulk of writing about Latin America in U.S. law
reviews and reflects the most enduring images. Notably in the 1960s and
1970s, several legal casebooks were published in the United States,
specifically on Latin America.8 They contain excerpts from various
development scholars of the period in addition to their authors’ own views.
These materials, as well as additional works cited, provide the basis for my
analysis here.
A. Social Theory of Law
6. See id. at 8. Gardner estimates that U.S. $5 million went to Latin American legal
development from a variety of public and private sources, and that approximately fifty American
legal professionals worked in Latin America. Id.
7. See, e.g., ESSAYS IN HONOR OF ANDRÉ GUNDER FRANK: THE DEVELOPMENT OF
UNDERDEVELOPMENT (Sing C. Chew & Robert A. Denemark eds., 1996).
8. See HENRY P. DE VRIES & JOSÉ RODRIGUEZ-NOVÁS, THE LAW OF THE AMERICAS (1965)
(containing information mostly on the subject of the Inter-American legal system, but dedicating
a third to descriptions of law in Latin America); KENNETH L. KARST, LATIN AMERICAN LEGAL
INSTITUTIONS: PROBLEMS FOR COMPARATIVE STUDY (1966); KENNETH L. KARST & KEITH S.
ROSENN, LAW AND DEVELOPMENT IN LATIN AMERICA: A CASE BOOK (1975); JOHN H. MERRYMAN,
THE LAWS OF WESTERN EUROPE AND LATIN AMERICA (1976) (including some development writing,
however, responding to a very different tradition of scholarship about Latin America and fitting
more traditionally within the project of depicting Latin American law as an extension of European
law, which I have written about elsewhere.). See generally Jorge L. Esquirol, The Fictions of Latin
American Law (Part I), 1997 UTAH L. REV. 425 (analyzing the role of “Europeanness” within Latin
American law).
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In the law-and-development movement, like any area of scholarship, its
participants espoused a range of approaches to scholarship and to legal
theory.9 In the main, however, the imprint of social-based approaches is
unmistakable.10 Many development scholars were contemporaneously
engaged in law-and-society groups, particularly active during that time.11
As such, a general description is possible. It is not an exhaustive
description nor can it capture the complexity of any single scholar. Still, it
conveys the most operational ideas of this moment in legal scholarship.
That being said, some brief comments about social theories of law, in
general, are in order. Evidence of the richness of legal theory, sociolegal
discourse in some form is a significant complement to most modern
9. See Lawrence M. Friedman, On Legal Development, 24 RUTGERS L. REV. 11, 12 (1970)
(arguing that, for the most part, developmentalists had no theory; “when the lawyer goes abroad,
he sails into a vacuum. He takes with him nothing that can reasonably be called a careful, thought
out, explicit theory of law and society or of law and development–nor does he find one at his
destination.”).
10. See, e.g., Thomas M. Franck, The New Development: Can American Law and Legal
Institutions Help Developing Countries?, 1972 WIS. L. REV. 767, 790.
The precise role of lawyers in a given country emerges from the interaction of a
variety of forces affecting that country, and, therefore, the kinds of roles lawyers
play in national development ought to be viewed as a sociopolitical choice which
each nation must make for itself . . . . [T]he means towards those ends employed
by lawyers, laws, and legal institutions must be constantly updated to accord with
the specific society, in all its multivarious complexity, and with each intricate,
delicately balanced system of national goals and values.
Id.; see also Dennis O. Lynch, Review Essay: Hundred Months of Solitude: Myth or Reality in Law
and Development?, 1983 AM. B. FOUND. RES. J. 223, 226 (finding developmentalists’ inspiration
in Karl Llewelyn’s lawyer as a social engineer: “He [Llewelyn] had an anthropological view of law,
which argued that lawyers and judges should examine how behavior in actual social circumstances
reflected societal values that should be incorporated into the legal order as working legal rules to
guide future behavior.”).
11. See, e.g., Friedman, supra note 9, at 53 (stating “[t]he theory of law and development is
only a special case, or corollary, of the theory of law and society.”); Lawrence M. Friedman, Legal
Culture and Social Development, 4 LAW & SOC’Y REV. 29, 34, 43 (1969) (defining the “legal
system” to mean the living law, “under the influence of external or situational factors, pressing in
from the larger society”) [hereinafter Legal Culture]. Friedman considers the effectiveness of such
a system as its ability to process demands for change while maintaining stability. See id. In this
connection, he calls for more empirical study of the legal culture as the main factor determining
effectiveness: “What is the living law of the provinces, or the streets, or the corporation, in
comparison to the law on the books?” Id. at 43; see also Kenneth L. Karst, Law in Developing
Countries, 60 LAW LIBR. J. 13, 16 (1967) (highlighting the unevenness of law’s application in
developing countries (based on class membership) as contrary to a “development-conducive state
of mind.”). Karst sees law’s role in development as principally one of “legitimating change” needed
to effect the social transformations required to apply law equally to all. See id. at 16.
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conceptions of law.12 While no single generalization captures the variety
of theories on the nexus of law and society, the familiar dualism offers a
ready source of legal authority. It signifies a separate field of societal
interaction whence organic norms can be unearthed.13 It may also be used
to draw into consideration, within the context of legal decisionmaking, the
formal law’s practical effects on society.14 In both cases, the purported link
to popular society provides an ostensibly democratic justification for its
relevance. Expanding legal decisionmaking, in this way, to include social
aspects enlarges the set of technologies available to legal operators beyond
the traditional modes of conceptualism and deductivism or naturalism and
positivism.
Also significant, social-based theories offer a way to challenge existing
rules or interpretations of rules. An account of prevailing social realities
may, for example, be introduced within legal analysis to argue the obsolete
nature of current legal rules. It may be used in favor of a new policy
direction, arguably more in keeping with societal needs, over others. Or,
it may be used to marshal images of societal ill-adaptedness and thus an
explanation for the failure of conventional legal formulas. Of course, the
method can also be deployed to uphold the underlying legitimacy of
existing laws. Images of society can also be produced to justify the
seamlessness and cultural coincidence of legal norms and societal
practices. Social accounts of law are actually quite standard within most
modern legal systems. As such, they often stand for nothing more than the
dominant understanding. Thus, while social argument can often be an
12. Clearly, sociolegal discourse is also often directed at debates within sociology, generally
speaking. This Essay is limited to considering sociolegal debate within the traditional field of law
and not as a basis for intervention in the social sciences.
13. See, e.g., EUGEN EHRLICH, FUNDAMENTAL PRINCIPLES OF THE SOCIOLOGY OF LAW 119-20
(Walter L. Moll trans., 1936) (defending a theory of social and economic associations as the basis
for legal as well as extra-legal norms). Ehrlich demonstrates how it would be quite impossible to
understand legal rules without reference to this underlying realm of “facts of the law.” Id.
And every new development which arises for new purposes, and which stands the
test of time, is added to the treasure of social norms, and serves to guide later
associations. There is an endless and uninterrupted process of adaptation to new
needs and situations, in which is embodied, at the same time, the development of
the human race and of its norms. It may suffice to instance the great number of
new norms, not only of law, but also of morals, ethical custom, honor, good
manners, tact, and perhaps, at least in a certain sense, etiquette and fashion . . . .
Id.
14. While both formulations taken together may seem contradictory, in terms of law as either
a dependent or independent variable, Lawrence Friedman describes that even scholars considering
law a secondary aspect of society, such as Marxists, believe that once law acquires an independent
existence, it may exert reflex influence upon the foundation. See Friedman, supra note 9, at 54.
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effective tool for reform, it is just as often part of the legitimating rhetoric
of established positions.
Scholars of the 1960s and 1970s were clearly interested in the question
of development.15 While the term came to encompass a range of meanings,
key to its understanding was more, and more equitable, economic growth.16
Working from the discipline of law, legal developmentalists struggled with
the relationship between economic and other sorts of development and the
legal system.17 Convinced that a link existed, they charged ahead with
projects of legal reform with the objective of promoting economic as well
as political development.18 Their writing about Latin America, the focus of
this Essay, built a consensus of sorts on the ills of then contemporary
systems of Latin American law.19 These ideas, sketched out below, inform
most writing about Latin America, and they continue to do so today. They
influence the type of legal reforms often insisted upon by international
organizations and foreign governments for the region. They also condition
15. See Carl A. Auerbach, Legal Development in Developing Countries: The American
Experience, 63 PROC. AM. SOC’Y OF INT’L L. 81 (1969).
16. See Franck, supra note 10, at 772-73 (describing “new” development (the 1960s and
1970s kind) as interested in social welfare and popular participation; “popular participation makes
for better development than does elitist autocracy–better qualitatively and, ultimately, better
quantitatively.”); see also Friedman, supra note 9, at 13-14 (stating, “‘[D]evelopment’ . . . refers
to any process of growth or change; and at the same time it means a special kind of favorable
growth, on the model of the so called developed countries.”).
17. See Auerbach, supra note 15, at 82 (stating “legal scholarship in our country has
contributed little upon which to build a theory of ‘legal development’ or to offer advice as to how
legal institutions may be used to foster the modernization process . . . legal scholars are beginning
to pay attention to the problem of legal development; those who have worked in developing nations
are reflecting upon their experiences and writing about them”); see also L. Michael Hager, The Role
of Lawyers in Developing Countries, 58 A.B.A. J. 33, 33 (1972) (stating “the neglect of law in
development studies reflects uncertainty as to its ultimate contribution. The question for some
observers is not simply a matter of degree but whether the law is an ally of development or an
enemy.”).
18. See Franck, supra note 10, at 788.
Of course, we have recognized the role played by law and lawyers in facilitating
development in the United States. We would also accept the assertion that law is
everywhere an essential instrument of government. But good law aids
development; archaic law hinders it. Good lawyers help, bad lawyers do not.
Id.
19. My use of the term “Latin American law” is subject to much debate. It suggests a common
system of law throughout Latin America or, at a minimum, a view of law’s key characteristics as
consisting of transnational similarities. Indeed, facile use of this phrase may signal complicity in
the strategic use of the idea of transnational law, which I attribute to the dominant Latin American
legal discourse (principally by reference to a transnational European law) and which I have
criticized elsewhere. However, my use of the term here simply reflects the historical fact of the
category and attempts to explore the strategic uses to which it has been put.
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the types of projects supported by non-governmental organizations in their
efforts to promote change. Most importantly, they impact the legal
strategies available for progressive positions.
B. Gap Between Law and Society
Developmentalists were in accord that a wide rift existed in Latin
America between state law as enacted and the way people behave.20 The
relationship between law and society, law-and-development’s central
premise even if not fully understood, thus consisted of a vast disconnection
between the two in Latin America. This discrepancy is central to a range
of scholarship on agrarian reform,21 economic regulation,22 urban squatter
settlements,23 legal aid services,24 legal education,25 and the legal culture.26
20. See Marc Galanter, The Modernization of Law, in MODERNIZATION: THE DYNAMICS OF
GROWTH 153 (Myron Weiner ed., 1966). Galanter—not focusing on Latin America in particular
in this piece–describes the law-and-society shibboleth of a “dualistic legal situation.” See id. The
innovation is not the discovery of a gap between lawyers’ law and popular law (or law in books and
law in action); gaps exist in most systems of law. See id. at 157-58. The interesting point, according
to Galanter, is the particular way which “modern law” attempts to deal with this gap and the
underlying local, legal tradition it evidences. See id. at 158-65. In his estimation, it is to suppress
and replace it: “[o]ur model pictures a machinery for the relentless imposition of prevailing central
rules and procedures over all that is local and parochial and deviant.” Id. at 157. “The law on the
books does not represent the attitudes and concerns of the local people. . . . The law in operation
is always a compromise between lawyers’ law and parochial notions of legality.” Id. at 162.
[L]aws were frequently imported from foreign legal systems without consideration
of their appropriateness to Brazilian society, and in a good many areas, laws are
so out of touch with social reality that the society is able to function at all only by
ignoring the law or on the basis of the jeito, a highly prized national institution for
bypassing the formal legal structure.
Keith S. Rosenn, The Reform of Legal Education in Brazil, 21 J. LEGAL EDUC. 251, 254 (1969).
21. See Joseph R. Thome, The Process of Land Reform in Latin America, 1968 WIS. L. REV.
9, 22.
But if the legal system and its institutions are to play an effective role in the
process of reform, then the lawyers who shape its form and susbstance must
become painfully aware of the actual social and economic conditions they would
change. Only then will they realize that traditional legal methods may actually
frustrate the process of reform, and that the legal process, at least in this area, may
have to take strange and unfamiliar but yet effective and equitable forms.
Id.
22. See Dale B. Furnish, The Hierarchy of Peruvian Laws: Context for Law and
Development, 19 AM. J. COMP. L. 91 (1971).
23. See generally Kenneth A. Manaster, The Problem of Urban Squatters in Developing
Countries: Peru, 1968 WIS. L. REV. 23, 61 (praising the 1961 Peruvian Barriadas Law: “The kind
of pragmatic, imaginative adaptation of old legal concepts to new problems which we see in this
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Without attempting an exhaustive description of all these works, the key
throughout is that official law is out of step with society. A formalistic and
ritualistic legal tradition, based on foreign, European models, is determined
to be a key obstacle to development, if not an outright bulwark of the status
quo. Additionally, the actual social practices of Latin Americans are
presented as reflecting a distinct realm, separate and distinguishable from
state law.
The disconnectedness of law to society was highlighted, within
developmentalist writings, to demonstrate the ineffectiveness of state legal
systems. In their place, a modern law capable of promoting development
was proposed. Developmentalist efforts spanned a broad range, including
both formal and informal strategies. Legislation for agrarian reform
programs and urban settlements was advanced. Antitrust and securities law
regimes were devised. Legal education, especially, was targeted. Some
scholars emphasized the mentality of development. Setting proper
incentives and drawing from local codes of conduct—development from
the bottom—were highlighted. The prominence of the informal sector was
studied. Informality provided a gauge on the motivations and values of
local actors. It was also typically characterized as the by-product or result
of an ill-functioning formal legal sector. A more effective modern law, or
law is the kind of first step which Peru and many other countries must take if they wish to begin to
confront the squatter crises effectively, peacefully, and fairly within the framework of legal systems
which are both progressive and just.”).
24. See Barry Metzger, Legal Services to the Poor and National Development Objectives, in
COMMITTEE ON LEGAL SERVICES TO THE POOR IN THE DEVELOPING COUNTRIES, LEGAL AID AND
WORLD POVERTY: A SURVEY OF ASIA, AFRICA, AND LATIN AMERICA 10 (1974) (stating “the formal
legal systems of most developing nations are derived from Western models imperfectly adapted to
distinctive local conditions. Not surprisingly, this has resulted in the failure of certain laws to
function as intended and in large gaps between popularly accepted behavior and legal norms.”).
25. See, e.g., Jorge Witker, Derecho, desarrollo y formación jurídica, 24 REVISTA DE LA
FACULTAD DE DERECHO DE MÉXICO 659, 670 (1974) (giving, as an example of the gap between law
and society, the supposition in the law which is “not empirically proven, that the family in Latin
America is structured in general by way of the marriage tie. Sporadic studies of legal sociology in
small communities have detected the existence of a multitude of extra-legal unions, which lack any
legal provision regulating them.”). Statements such as these can be made of any place at any time.
The “gap” here is merely an argumentative device, which can in this same fashion be deployed in
most any setting. Here, it is used to argue for a change in legal education and more social and
economic policy-oriented judicial decisionmaking.
26. See Frank Griffith Dawson, Labor Legislation and Social Integration in Guatemala:
1871-1944, 14 AM. J. COMP. L. 124 (1965). Dawson describes how Guatemalan labor legislation
is starkly at odds with Indian goals, values, and traditional hierarchy. See id. Dawson seems to
argue against this destruction of “pluralism” by the state. See id. Indeed, his characterization of a
cruel and oppressive official system makes this point. See id. Yet, in a footnote he states “[d]espite
[its] perils, however, the demise of pluralism is to be welcomed.” Id. at 142 n.86. For him, it is in
this way that Latin American states will become national societies. See id.
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the promise of it, was by contrast a way of legitimizing the political and
economic proposals advanced by developmentalists.27
By contrast, references to social or informal legality encompassed a
variety of different meanings across the range of development writing.
When filling a relatively minor role in specific work, the notion of the
social order generally refers to a source of additional norms, derived from
observable social interactions, social values, and attitudes28—themselves
derived from morality,29 religion, community, and other systems of
coercion.30 Under this formulation, the claim is that the formal law does
not satisfactorily describe, and could not describe, the entire legal system.31
27. See, e.g., Legal Culture, supra note 11, at 43-44 (stating “[n]o community or group is
truly lawless. But if law is defined as the formal law of the capital or the rulers, then in every
country there are lawless groups and territories . . . . Pluralism . . . is not merely a structural matter.
It rests on cultural differences.”); see also generally Hager, supra note 17.
28. See, e.g., Kenneth L. Karst & Norris C. Clement, Legal Institutions and Development:
Lessons from the Mexican Ejido, 16 UCLA L. REV. 281 (1968) (focusing on the specific economic
decisions confronting ejido (community-held land, which is parceled out to individual farmers to
work) members in Mexico and arguing for legal reform, to better secure land tenure, based on the
“small-scale” perspective of the ejido farmer’s social and economic constraints). While the authors
recognize the political interests aligned against reform and the legal arguments they invoke, they
do not address them directly or suggest direct engagement to counteract them. See generally id.
Instead, they advance their argument by urging the “small-scale” perspective as better suited to
development. See id. at 302-03.
29. See, e.g., Norman S. Poser, Securities Regulation in Developing Countries: The Brazilian
Experience, 52 VA. L. REV. 1283, 1294 (1966) (stating “[t]he developmental purpose of the
program and the gap between business morality and the standards that are necessary for the
existence of mature capital markets create special difficulties in formulating and enforcing these
standards”).
30. See, e.g., Kenneth L. Karst, Rights in Land and Housing in an Informal Legal System:
The Barrios of Caracas, 19 AM. J. COMP. L. 550, 569 (1971) (describing the customary or informal
law of the urban barrio in Caracas). Karst’s analysis is an example of the use of a separate social
sphere as a source of alternative legal norms. See generally id. He argues that “barrio law” should
be considered as official law. See id. at 569-70. His argument is explicitly directed at those, within
Venezuela or outside, who believe that barrios are simply an example of a legal void, where official
law has yet to penetrate. See generally id. His rationale is that this informal, barrio law provides for
land tenure stability for urban squatters, which has the effect of promoting investment in their
dwellings and thus promotes development. See id. at 569. Of course, the official property regime
also has the same objective of providing for stability. Solely on the principle of stability required
for development, arguments can be made either for or against barrio law. In fact, barrio law’s
purported guarantee of stability is predicated on the government’s decision not to enforce official
laws because of political reasons, thereby keeping barrio law and urban squatters in a precarious
position even if they feel secure as a matter of their “state of mind.” According to Karst, however,
“the security that is relevant to development is the state of mind of the developmental decisionmaker.” Id.
31. See, e.g., Friedman, supra note 9, at 29.
[Legal culture] includes all the relevant social values and attitudes that influence
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Simply enough, other criteria must be considered. These may, alternatively,
supplement existing laws, provide for other better rules, or assist in
understanding the causes for official law’s breakdown.
In other works of development, the social law plays a larger role. In
these cases, the social field signifies a thickly populated set of autonomous
cultural norms. Qualitatively different from state law, this notion of social
law designates an alternative system more organically connected to the
societal group.32 Under this formulation, the claim is that social groups
hold such norms irrespective and possibly independent of state law. In its
strongest terms, social law is presented as a potential substitute for the
state.
The scale of legal diversity identified also varies within development
scholarship. It may refer to particular norms of a group or community
within a specific area. Some development and development-paradigm
studies, in fact, focused on systems of normativity within smaller-scale
communities: urban barrio dwellers,33 rural localities,34 indigenous
settlements, and others. Alternatively, it may refer to the vastly different
levels of state presence throughout one country or in Latin America as a
whole. In the aggregate, nonetheless, these works offer the picture of a
broadly plural social sphere.
Every Latin American country has a large body of formal
national law on the books—and has had, at least from the
mid-19th Century. Still, the vertical segmentation highlighted
by Wiarda [i.e.,“a number of corporate elites and intereses”]
persists, stubbornly resisting the establishment of truly
national legal universalism. The moral communities, in other
words, are national communities only with respect to a
relatively limited number of kinds of transactions and
relationships.
A perspective that emphasizes participatory development,
however, permits us at least to speculate that a
“horizontally” oriented idea of community may grow at a
grass-roots level, with legal institutions playing their
expected role: defining communities, providing channels for
law but cannot be deduced from its structure and substance. These include respect
for law or the lack of it, whether people readily use their courts, their officials, or
prefer informal ways of solving problems, and attitudes and demands upon law
posed by different ethnic groups, races, religions, occupations and social classes.
Id.
32. See, e.g., Keith S. Rosenn, The Jeito: Brazil’s Institutional Bypass of the Formal Legal
System and its Developmental Implications, 19 AM. J. COMP. L. 514, 515 (1971).
33. See Karst, supra note 30, at 569-70; see generally also Manaster, supra note 23, at 61.
34. Karst & Clement, supra note 28, at 282-302.
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group effort, providing training in cooperation and
leadership.35
This diverse society is consistently presented as sharing one commonality,
its radical distinctness from the official legal culture.
C. Arcane and Formalist State Law
In terms of existing law, developmentalism emphasized the
ineffectiveness of Latin American legal systems, alien to the social
particularities of Latin American peoples.36 Rather than emphasize the
multiple and competing governance projects at work in the arena of state
law, drawing on both formalist and antiformalist methodological
discourses,37 developmentalists painted with a broader brush. They
depicted official legality as simultaneously anachronous, malfunctioning,
and marginal. They presented the picture of an unredeemably dysfunctional
legal system, and they drew on a variety of images to do so.
The charge raised by developmentalists has the effect of drawing into
question the conventional repertoire of Latin American legal technologies.
It questions its capacity to represent, and perform, legal decisionmaking in
transparent, rational, and accessible forms. Latin American legal discourse
indeed reflects a relatively complex argumentative style.38 Drawing on
European scholars and foreign models, legal operators frame their
arguments in outwardly circuitous and arcane elocutions. In general, the
dominant mode of legal reasoning advances specific legal positions on the
basis of foreign authorities and legislative developments in Europe and
North America, that is to say, on interpretations of foreign jurists and
characterizations of international developments. This does not mean that
legal argument is necessarily any less strategized nor reflective of
particular local interests. Foreign authorities are sufficiently abundant, and
their interpretations sufficiently pliable, to provide a basis for multiple
positions.
35. KARST & ROSENN, supra note 8, at 675 (footnote omitted).
36. See id.
37. See, e.g., Rosenn, supra note 32, at 533-34. Rosenn readily accepts that formalism, as a
legal methodology, may be marshaled to frustrate social change; however, he does not recognize
that it can also be the basis for projects of nation-building and even economic development. See id.
38. See Diego E. López Medina, Comparative Jurisprudence: Reception and Misreading
Transnational Legal Theory in Latin America (2002) (unpublished S.J.D. Dissertation, Harvard
University) (on file with the author) (Demonstrating this complexity, foreign legal authorities must
be marshaled and aligned with an advocate’s position. Sources concerned with vastly different
issues and particularities in their own countries must be refitted to provide the rule for the case at
hand. Additionally, the typical legal argument contains a hodge-podge of cites, seeking to win the
battle of foreign authorities.).
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It does raise the question, however, which will be discussed further
below, of the outward effects of this dominant mode of legal reasoning.
Even if the array of local political choices may be fully represented, the
need to marshal European precedents or transnational jurists in their
defense may undermine, in the aggregate, a system of democratic law. Law
is mystified by being presented as beyond local agency and individual
objectives. The different outcomes in question are eclipsed by discussions
of foreign jurists. Additionally, certain interests may more easily trump
others absent a more transparent, democratic discourse. The quite
indeterminate discourse of juristic authority, paradoxically, makes it easier
to defend idiosyncratic results. Furthermore, allocating societal goods
without reference to social consequences or local equities relieves the
decision-maker of a level of democratic constraints, even if the constraint
is only to craft the decision within the discourse of democratic constraint.
Not so attuned to the intricacies, however, developmentalists mostly
depicted the official Latin American legal systems as a hold-over from
formalism of an earlier era. The legal system was pictured as a relic, not
unlike classical legal formalism at the turn of the twentieth century in the
United States. Albeit, Latin American formalism was understood as
reflecting civilian rather than common law forms. Typical common law
prejudices about civilian legal systems were raised. For example, ideas
about the rigidity of code law and the isolation of the deductive method
from social reality were added to the causes of Latin America’s
anachronistic law.39 Historical narratives were introduced to support claims
of the region’s tradition of ineffective legality. The mass of colonial laws
and regulations, unassimilable and contradictory, were used to show the
parallel with contemporary forms.40 Sociological narratives, today quite
suspect, were raised to argue the characteristics of societies impacted by
Spanish and Portuguese mores, and thus to explain Latin Americans’
predispositions to circumvent official law.41
Somewhat understandably, legal technique in Latin America reinforced
this perception. Clearly, legal discourse consisting of citations to foreign
39. See KARST & ROSENN, supra note 8, at 45-47, 61-62.
40. See, e.g., DE VRIES & RODRIGUEZ-NOVÁS, supra note 8, at 161-73.
The colonial heritage of Hispanic America with its special techniques of
adjustment to harsh measures persists in the present-day civic irresponsibility, if
not outright evasion of obligations to the community . . . . The Hispanic American
legal tradition is a blend of formal adherence to representative democracy and
respect for written law isolated from social factors . . . .
Id. at 168. “[T]hough the forms of constitutional government have long been present, the
sociological basis for effective implementation of written words is often lacking.” Id. at 172.
41. See id. at 161-71.
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jurists and transnational legislative developments recalls an outdated
theory on the nature of law. The notion of Latin American law’s
foreignness is also supported by the traditional comparative law
scholarship on the region.42 The legal systems of Latin American countries
are generally described as faithful imitations of continental European
models. Particularly in terms of private law, the resemblance between Latin
American legal codes and legislation and their European counterparts is
well noted. Continental legal sources and juristic authorities are understood
as the bases of legal argument within Latin America. Additionally, the
United States is generally recognized as the source of most of the region’s
constitutional law. These characterizations of imitativeness or
transplantedness are not, however, intended as criticism. Many
comparativists and Latin American jurists, on the contrary, laud the
transnational commonality and, indeed, point to it to justify the legitimacy
and objectivity of the region’s laws.
In addition, much comparative scholarship about Latin America
reinforces the idea of the region’s official legality as merely a brand of
legal formalism. The eminent, Austrian jurist Hans Kelsen is often
presented as a sufficient and exhaustive description of Latin America’s
legal consciousness. Mainstream analyses signal the larger-than-life impact
of this European jurist.43 For many commentators, after citing Kelsen no
more need be said. For them, Kelsen is a shorthand for describing a system
of positive law formalism, essentially a belief in the hierarchical sources
of legal authority—from regulations to statutes to constitutions—and the
law as a relatively autonomous system—the pure theory of law. Kelsen,
coupled with a Spanish, scholastic past often constitutes the extent of
explanation of Latin America’s official legality. Its natural law and
deductive logic tradition is simply understood to be updated by reference
to Kelsen’s theory of graduated legal sources and the autonomy of law
from other spheres of social life.
Other analyses demonstrate a more varied picture. Despite Kelsen’s
great influence, other figures have been instrumental.44 And, more
importantly, Kelsen himself has been used to stand for many different
propositions and many different interventions within legal argument and
42. See generally MERRYMAN, supra note 8.
43. See, e.g., Furnish, supra note 22, at 92. Furnish gives pride of place to Hans Kelsen. Id.
He in fact wholly adopts this framework to describe the workings of Peru’s administrative law
structure: “The lawyer interested in law and development should follow that trail to see laws in
action, for in Peru and other developing nations the most important source of developmental policy
is the Executive.” Id. at 111. Furnish adopts both the “gap” metaphor and the notion of official
law’s Kelsenianism at face value. See generally id.
44. See, e.g., CARLOS S. NINO, INTRODUCCIÓN AL ANÁLISIS DEL DERECHO (1983).
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legal politics.45 Attempting to understand Latin American law solely
through one’s view of Kelsen would be unsatisfactory and misleading.
Kelsen does not describe the full workings of Latin American legal
systems. Rather, much legal argument and legal projects citing Kelsen as
authority for myriad propositions are but some of the elements of Latin
American legal reasoning.
In any case, whether or not Latin American law can be
unproblematically characterized as a transplant from other political
societies or the spitting image of Kelsen is part of the same argumentative
repertoire. The affirmative side of the debate, it is worth noting, generally
upholds a view of law as a coherent whole, capable of being transported to
different locations while working in much the same way. Even modified
versions of this point, where foreign laws are said to be adapted to the
Latin American context, reinforce the same notion that law is mostly
autonomous of local actors. By contrast, Latin American law may be
understood quite differently. Its foreign borrowings may respond to
different political or strategic motivations. Use of those materials may be
intimately tied to local interests and cultural politics. Outwardly foreign
sources may be used quite differently and for different reasons in local
settings. This debate, however, makes little sense in the abstract. Both
sides are already sufficiently well-known terrains. Either vision can offer
the background scenario for or against a particular political position within
some specific debate.46
What is relevant to this discussion, however, is that 1960s/1970s
developmentalists deployed the characterizations of foreignness and
formalism. And, they pressed them as system-wide critiques. The formal
legal system was presented in two ways. It was portrayed as ill-fitting and
anachronous, adrift in stultified European (and old U.S.) models.47 This
imported law was contrasted to the very different lived realities of actual
Latin American peoples. At the same time, official law was identified as
reflective of the interests of a small elite within these countries. This latter
point would seem to show the opposite, its local ties, notwithstanding the
unsurprising fact that the legal system benefits some at the expense of
45. See BORDA KELSEN, EN COLOMBIA (1991).
46. At the risk of getting ahead of myself, I simply make a cursory note here: One of the
points of this Essay is that the particular form of traditional legal discourse in Latin America rejects
part of this argumentative repertoire. It reinforces necessitarian univocalism by disqualifying
arguments that openly acknowledge the multiple positions and interpretations available from
traditional legal materials, that is, from citations to foreign jurists and foreign sources.
47. See, e.g., Dale B. Furnish, Chilean Antitrust Law, 19 AM. J. COMP. L. 464 (1971)
(decrying the irrelevance of anti-trust laws as a result of Chile’s social and economic realities).
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others. The contradiction, however, is downplayed by the suggestion that
Latin American elites (or those benefitted) are foreign just as well.48
In any case, developmentalists criticized the legal system’s economic
effects and attributed this to an operational incapacity to align judicial
decisions with national, social, and economic policy. In an era of changing
economic measures, policy enthusiasts were loathe to be frustrated by local
judges. Absent legal decisions aligned with the development consensus,
however, local judiciaries threatened the effective implementation of
national economic objectives. In this regard, the dominant legal
technologies, it was argued, were insufficiently calibrated to assure the
survival of development policies. As such, the technologies were slated for
reform. Developmentalism embraced the prescription of updating Latin
American legal theory.49 Introducing pragmatism to law schools and the
courts, as mentioned already, was the goal. It was assisted by claims of
improving access to the social norms of Latin American peoples; better
reflecting the social realities and cultural identity of the nation; and
embodying the internal conceptions and choices of local society.
Developmentalists—most of them faithful believers in the sociological
underpinnings of law—were quick to demonstrate the influence of society
on law and vice versa. The whole of their project was based on the belief
that development could be engineered through law. Yet, this truism turned
out not to be a belief about all legal systems. Legal systems might be a
product of their societies, and then again they might not. In Latin America,
the sociological truth marshaled by developmentalists was that the legal
system was not.50 There, the mass of law was presented as unmoored from
48. This point is reinforced by the role ascribed within dependency theory to Latin America’s
comprador class, essentially local elites identified with the economically powerful in the developed
world, or unscrupulous intermediaries in the incessant siphoning of wealth from the undeveloped
to the developed world. See DAVID LEHMANN, DEMOCRACY AND DEVELOPMENT IN LATIN AMERICA:
ECONOMICS, POLITICS AND RELIGION IN THE POST-WAR PERIOD 20-26 (1990). In a footnote,
Lehman explains “the term seems to have originated in South-East Asia where it refers to nonindigenous merchant groups with a distinctive ethnic (Chinese, Indian, European) identity.” Id. at
26 n.21.
49. This prescription is not limited to 1960s law and development. Recent writings by the
head of the World Bank’s legal division, Ibrahim Shihata, prescribes the same remedy not only for
Latin America but around the world. See, e.g., Ibrahim F.I. Shihata, The Role of Law in Business
Development, 20 FORDHAM INT’L L.J. 1577, 1577-78 (1997). Shihata advocates a turn to legal
realism by local judiciaries. See id. at 1581-83. The rationale clearly stated is that realist judges will
be better able to implement national economic goals at the micro level. See id. at 1582-83.
50. See, e.g., GARDNER, supra note 2, at 267.
Although there is oversimplification in this analysis of a single and impedimental
role of the exported formal legal system, it illuminates a particular “law-againstlaw” conflict, in this case between the formal legal system on the one hand and the
informal law of the society or the instrumental laws of emerging states on the
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the mass of society. Depictions of urban barrios, peasant communities, and
other “informal” sectors, by contrast, were used to demonstrate both the
truth of this assertion and, for some scholars, the alternative resources
within society (or informal law) available to development planners,
including economic incentives and goal-setting values of social groups. Of
course, the unproblematic way in which the law-and-society dichotomy
was expressed, as both irreconcilable and necessarily symbiotic, signals the
strategic use made of this formula.
D. Legal Informality as an Argument for Development Politics
The characterization of a gap between law and society is not peculiar
to Latin America nor is this notion particular to law and development. On
the contrary, it is a methodological convention which boasts a long history.
The notion of a different lived experience of the law is highlighted and
instrumentalized for purposes of legal reform. In the Anglo-American
tradition, it is generally attributed to sociological jurisprudence,
spearheaded by Roscoe Pound before World War I.51 The most common
association with the concept is embodied in the slogan: “law in the books
and law in action.”52 According to Morton Horwitz, it was originally
employed for the purpose of criticizing nineteenth and early twentieth
century orthodox legal thought.53 The underlying notion, that law can
become disconnected from social reality, was also the springboard for
American legal realism.54 A more controversial version of progressivism
than sociological jurisprudence,55 realism had an indelible influence on
other. In these conflicts the law and development movement did not find the
formal legal system uniformly on the side of developmental change; on the
contrary, legal formalism again demonstrated a considerable capacity to
complicate social relationships and to delay and inhibit broader social change.
Id.
51. See MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1870-1960: THE
CRISIS OF LEGAL ORTHODOXY 169-71 (1992). Horwitz downplays the controversy typically cited
between sociological jurisprudence and legal realism; on the contrary, he suggests “both intellectual
movements should be understood as sub-categories of pre- and post-World War I Progressive legal
thought, and Legal Realism needs to be seen primarily as a continuation of the reformist attack on
orthodox legal thought.” Id. at 171.
52. See Roscoe Pound, Law in Books and Law in Action, 44 AM. L. REV. 12 (1910).
53. See HORWITZ, supra note 51, at 188.
54. See id. at 187-88.
55. See id. Indeed, it was the very slogan, “law in books and law in action,” which became
the target for legal realists in the 1930s. One of the principal figures of American legal realism, Karl
Llewelyn, rose to prominence by critiquing the unfulfilled potential of sociological jurisprudence
to reform the “law in books.” See id. at 170-82. Pound’s handiwork for all its reformist pedigree
and potential had by the 1930s “a tendency toward idealization of some portion of the status quo
at any given time.” Id. at 174. Realism, according to Horwitz, presented a real threat to the then
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U.S. legal thought. In fact, one is hard pressed to describe legal
consciousness in this country without reference to its main tenets. For lawand-society scholars, as direct heirs to realism, “gap” studies were central
to their work. Measuring the relative distance between formal law and
societal behavior was instrumental in calibrating law as a tool of social
engineering. It is thus not surprising that 1960s developmentalists, many
of them North Americans, highlighted the relatively “unrealist” cast of
Latin American legal culture and the wide gap between law and society:
In Latin America, however, governmental administration has,
from the very beginning, been incorporated into the
prevailing system of patronage. Nepotism, for example, which
seems almost sinful in the Anglo-American world, is widely
regarded in Latin America as a social duty. Monopoly
privilege is at least as old as the Conquest; Queen Isabella
sought from the outset to limit the exploitation of the New
World to her own subjects—not even to Spaniards generally,
but to subjects of Castile. In Latin America, it is sometimes
said, mercantilism never died. Given this history, it has been
argued that the very idea of “rights” in Latin America is
meaningful largely in terms of group privileges, as
distinguished from individual rights. Legal universalism is
thus seen as a dream—and perhaps a North American dream
at that—rather than even a potential reality in Latin
America.56
It is also this “informal” feature which they invested with great
significance.57 The Director General of the International Labor Office,
Wilfred Jenks, speaking in Costa Rica in 1972, was rather clear about it:
The most renown legal thinkers in Latin America in recent
times, men of the stature of Luis Recaséns Siches, Carlos
Cossio y Eduardo García Maynez, have been essentially
philosophers of the tradition of Kelsen rather than architects
and engineers of social change through the legal process in
the fashion of Roscoe Pound. There has not been a
contemporary Andrés Bello, with the universal scholarity of
legal system’s self-sustaining tropes of principled deduction and legal objectivity. See id. at 187-92.
Sociological jurisprudence ultimately became a way to defend the even-handedness of legal rules
by pointing to their source as observable human interaction as opposed to questionable human logic
or doubtful neutrality.
56. See, e.g., KARST & ROSENN, supra note 8, at 639 (footnotes omitted).
57. See, e.g., DE VRIES & RODRIGUEZ-NOVÁS, supra note 8, at 193. “Particularly in codes
containing a high proportion of terse, abstract statements of principles rather than detailed rules,
the power to interpret becomes, in practice, the power to create ‘law in action.’” Id.
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a grand humanist conceiving of law as, essentially, a branch
of the art of statesmanship. What is required are public
figures of their stature in order to place law as an effective
instrument of social change at the center of thought and
practice in Latin America.58
This discussion, among other things, highlights the “methods reform”
advanced by legal developmentalists. Methods reform is a shorthand way
of describing a range of proposals advanced by various scholars of this
period. In the aggregate, their proposals not surprisingly suggest emulating
U.S-like legal reasoning.59 Latin American legal operators were urged to
adopt the United States’ particular form of legal discourse (or what
developmentalists understood that to be).60 Describing the characteristics
of this latter notion would obviously be the subject for a body of
scholarship in its own right. However, one element of this discourse, which
58. Wilfred Jenks, El derecho y el cambio social en el pensamiento y la práctica de América
Latina, in REVISTA DE CIENCIAS JURÍDICAS 307, 310 (1972) (author’s translation). Jenks also relates
that:
In this respect [i.e. providing for change within law as a response to social
conflict], a large measure of change has been produced in the content and
primordial tendencies of Latin American law during the preceding generation.
“Social law” has become a part of unceasingly growing importance in law as a
whole . . . . So transformed to its social function, [law] enjoys a positive potential
for social change of vast reach, which earlier generations would have doubted with
profound skepticism.
Id. at 313 (author’s translation).
59. See GARDNER, supra note 2, at 34.
The end result was a law and development movement that lacked many of the
preconditions for direct legal transfer and turned instead to the task—the difficult
task—of indirectly transferring abstract American legal models and concepts that
were neither invited nor imposed, but rather infused, through American legal
assistance.
Id.
60. See, e.g., KARST & ROSENN, supra note 8, at 646.
But in our zeal to be realistic, we should not overlook the obvious and central fact
that an enormous portion of every legal system in the “developed” world is
exceedingly coherent and knowable. (Our own legal education, which still centers
on developing analytical skills, is misleading in this respect, for it consistently
focuses on problem situations, while most transactions and relationships are “easy
cases.”) Consider, in contrast, . . . Brazil.
Id.
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65
can be safely asserted, is that there is no, or at least need not be,
overarching theory encompassing all legal reasoning. On the contrary, legal
reasoning is, above all else, grounded in local social realities and discrete
policy objectives.
To this end, developmentalists were active in promoting a new
curriculum for Latin American law schools.61 Changing legal methods and
reasoning habits required modifying them at their source.62 Take for
example, Edward Laing, speaking of Colombia:
61. See Rosenn, supra note 20, at 255 n.9 (reflecting on the obstacles to law school reform,
“[i]t may be that something akin to American legal realism cannot thrive in a society where so many
disputes are resolved by extra-legal measures, or where those charged with enforcing the law are
accustomed to reinterpret it without particular regard to statutory language.”). Rosenn construes
American legal realism too narrowly. It is precisely these same phenomena that many legal realists
reveal in the U.S. context. Elsewhere, Rosenn notes that “this prevailing attitude towards law and
law study—that it comes hermetically packed like tennis balls and that deductive analysis is the key
to open the can—is at least partly responsible for the great disparity between law and practice in
Brazil.” Id. at 272. See Henry J. Steiner, Legal Education and Socio-Economic Change: Brazilian
Perspectives, 18 AM. J. COMP. L. 39 (1971); see also Edward A. Laing, Revolution in Latin
American Legal Education: The Colombian Experience, 6 LAWYER AM. 370, 372-73 (1974).
Whether they were the cause or the effect of the tendencies to be presently
described is a matter of speculation. But the Colombian (and the Latin-American)
law school and university helped to produce and perpetuate the class distinctions
and social cleavages which were earlier mentioned . . . . Traditionally, therefore,
conservatism has been a feature of the law and society. In law and legal education
the tendency has been to stress historicism and positivism as cardinal features of
law, the teaching of which was designed to produce “jurists” cast in the
traditionally exegetical mold by a system which eschewed intellectualism (unless
traditionally endowed) and creativity, and which extolled
professionalism . . . . The system we have described contributed to professional
attitudes resistant to change, the retention of outworn techniques and to an inwardlooking and resilient law school organization and internal structure, with
outmoded curricula and methodologies.
Id. (footnotes omitted).
62. See, e.g., Karst, supra note 11, at 19 (stating “[l]awyers in the older of the developing
countries . . . e.g., in Latin America . . . have not been trained in a policy-oriented legal
science. . . . A radical re-ordering of legal education seems essential to change these patterns of
thought”). See also Thome, supra note 21, at 22.
[If] the legal system and its institutions are to play an effective role in the process
of reform, then the lawyers who shape its form and substance must become
painfully aware of the actual social and economic conditions they would change.
Only then will they realize that traditional legal methods may actually frustrate the
process of reform . . . .
Id.
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The following are illustrations of these failings [of traditional
legal education]: (i) Absence of courses on the social
sciences (and the relation of law to society), on economic law
and on forensic deontology or professional ethics. (ii) Failure
to provide the student with practical exercises and the
opportunity to see law in operation and some of the byproducts of the legal process, such as prisons. (iii) The
disregard of decided cases (jurisprudencia) in the teaching of
law.63
Additionally, development-minded reformers supported the expansion of
legal services to the poor and public interest litigation.64 Beside the direct
benefit in terms of assistance to low-income groups, these services offered
a way to reallocate economic resources by means of the legal system.
II. BRIDGING THE EVER-PRESENT GAP: THE DEVELOPMENT ATTEMPT
One of the paradoxes of Latin American legality is that “social”
argument is not a routine part of mainstream legal discourse. That is,
arguing on the basis of social particularities and perceived realities is not,
in fact, unproblematically available as a legitimate mode of legal
argumentation. Understandably then, attempts at its introduction underlie
the strategy of presenting, emphasizing, and constructing a separate social
or informal sphere of normativity. As it has been configured, however, the
latter course has been and continues to be ineffective to produce change.
To explain, the mainstream conception of law in Latin America (with
all the caveats that such a general reference to very diverse phenomena
must entail) is that answers to legal questions are singular; there is but one
correct response for any legal question under the law. This conception is
supported by a host of different legal theoretical positions and approaches.
Naturalism, positivism, and sociology have all in one way or another been
pressed into service in furtherance of this dominant idea. Moreover,
arguments premised on other than accepted legal materials are deemed
illegitimate and inapposite as legal reasoning. As such, it is understandable
63. Laing, supra note 61, at 374 (footnotes omitted).
64. See Metzger, supra note 24, at 7.
Except under the most exceptional circumstances, an effective legal services
program can contribute only marginally to eliminating the economic poverty of
lower-income groups. Its contribution is more toward distributive justice—toward
the nondiscriminatory operation of institutions with which citizens deal—which
is increasingly being recognized as a development goal complementary to but
independent of economic development.
Id.
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that different waves of social reformers have sought to position “social
reality” as an alternative source of law and to insist on the formulation of
rules that follow its recognition. Such an argumentative move reconceptualizes legality as plural, that is, of permitting potentially multiple
solutions under potentially multiple presentations of social reality.
This characterization is not intended to describe an essential quality of
law in Latin America. Surely, law and legal discourse are the product of
the motivations and idiosyncracies of its participants. Throughout Latin
America, these are mostly organized at the national level. As such, this
Essay admittedly presents broad ideas and hypotheses calling to be
enriched by more detailed accounts of country-specific or even
community-specific usages. Still, past political projects mobilizing the
conception of a unified Latin American legal identity (either as explicitly
Latin American or essentially European) have had an impact on legal
discourse throughout the region. It is the collective impact of these projects
which is described here as a common element and thus renders it sensical
to discuss on a regional level of analysis. It depends on nothing other than
the historical fact of “Latin American” (or European) identity-based
projects pursued in law. Thus, this description of a Latin America-wide
state of affairs is neither an attempt to reinforce some past identity project
nor does it seek to mobilize a new identity characterization of its own.
Rather, it describes the commonalities produced historically by the
advancing by some, and resisting by others, of projects of transnationality.
A by-product of those struggles, and achievement of those emerging
victorious, happens to be the rejection of social-based legal argument.
Mainstream Latin American jurisprudence, thus, has consistently drawn a
sharp line between law and politics, and placed social argument firmly
within the latter camp. In this discursive economy, social argument is the
antithesis of law. It threatens the above-politics authority of legal rules.
Curiously, a wide spectrum of legal politics has effectively acquiesced in
this state of affairs. As such, consolidating the social realm as a source of
law remains an activity relegated to the margins, if not completely outside,
of national legal discourse. Characterized as political discourse, it is
rejected by mainstream jurists. As such, the tried and true method of legal
renewal through invoking social considerations is rendered ineffective.
In this light, the inordinate efforts of progressive scholars of the social,
in particular, become more understandable. In the face of a legal culture
apparently impervious to transformation on the basis of social needs, the
strategy has been to redouble efforts. The exclusion heightens the
motivation to defend and construct a separate social sphere, as a concrete
sociological reality, to render it undeniable for arguing for legal reform.
The gap between law and society is magnified and the coherence of a
separate sphere of social normativity is re-emphasized. Thus, in order to
make way for quite conventional social arguments, many progressives have
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dedicated themselves to the vast enterprise of defending social alternity.
Identifying and making concrete the potential of a social source of norms
offers the hope of strengthening their hand. Real transformation, however,
seems always postponed until the social is sufficiently articulated, through
empirical study, sociological research, or maybe only after a revolution.
This state of affairs within Latin American legal culture is indeed
problematic. Instead of a routine use of social-based argument within
national legal discourse, this technique has been rendered for the most part
unavailable or illegitimate. Clearly, social argument is not new (it was not
new in the 1960s) nor is it a deeply counter-institutional mode of legal
argument, often quite the contrary. Yet, its deployment in Latin America,
as a reforming catalyst against traditionalism within the official legal
system, has not worked. This apparent unavailability of the social,
however, is no more an intrinsic particularity of Latin American legal
systems than is the figure of a lawless gap between state normativity and
social conduct.
Historical accounts demonstrate that Latin America is not immune to
cross-national currents in legal theory. Latin American jurists provide
testamentary proof of the pervasive influence in the region of social
theories in scholarship as well as decision-making. Yet, there is admittedly
a perceived absence of social argument within Latin American legal
reasoning. It is deeply eclipsed, and when it is raised, it is quickly
challenged as illegitimate. Additionally, this is not a result of a time lag in
general jurisprudence—such as a movie that might not have yet reached
our southern neighbors. Quite differently, the arrival of social argument in
law is not late but, rather, has been repeatedly re-inscribed as an innocuous
reaffirmation of the existing legal system or as a political question to be
kept off the table. Thus, its reformist, transformative potential has been
repeatedly blunted.
Nonetheless, this same strategy of calling on the social, employed by
law-and-development scholars, continues to be relaunched and given new
life by subsequent generations of progressive scholars.65 As it has been
65. As noted earlier, taking up other historical examples of this phenomenon is beyond the
scope of this Essay. However, by way of brief reference, Wanda Capeller tells the story of French
“Critique du Droit” influence in the late 1970s in Latin America, in the way suggested by the
analysis here. See generally Wanda de Lemos Capeller, Entre o ceticismo e a utopia: A sociologia
jurídica latino-americana frente ao debate europeu, in SOCIOLOGÍA JURÍDICA EN AMÉRICA LATINA
(1991). Capeller identifies military dictatorships in the 1970s with legal formalism (just as
developmentalists did with then existing legal regimes), subsequently challenged by critics,
deploying “Critique du Droit,” who saw the French ideas as an “‘ideological option’ in opposition
to North American theoretical models.” (Rather than legal realism, they wandered toward
materialism.) See id. Still, its proponents failed, according to Capeller, because of insufficient
connection with social research and social reality, making it impossible to effectuate any real
transformation (reinforcing the subsequent move by progressives toward the hyper-social, discussed
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given shape, it consists of projecting and defending a qualitatively different
and dense field of social particularity from which to argue for change, a
field of social reality and difference that cannot be denied, which is what
I call the hyper-social. Consequently, it entails arguing an ever bigger and
deeper gap between law and society. Law-and-development’s rejection by
Latin American traditionalists, however, has already marked the
marginality of this enterprise. Specifically, the defenses and arguments
raised against methods reform in the 1970s, inscribed this antiformalist,
progressive strategy as non-legal discourse. Indeed, the way this skirmish
took place, discussed below, helps to explain the current state of play of
Latin American legal politics.
In passing, I have referred to neo-developmentalism in Latin America.
Direct heirs to the tradition of social-legal duality, these newer reformers
employ essentially the same ideas and strategies to promote a marketoriented overhaul of the legal system. They respond to the objections, the
same ones directed at 1960s developmentalism, by differentiating their
approach. Objective economic incentives and market logic, it is argued,
guide their efforts and thus, it is claimed, are not as easily manipulable as
social engineering and political redistribution goals. Furthermore, neodevelopmentalists defend their agenda as the product of collaboration with
and consent by Latin Americans. With theses explanations, the new wave
of developmentalists are satisfied to pick up where past efforts left off—if
not with the same content at least with the same overall analysis and
framework.
My concern here, though, rather than tracing the impact of neodevelopmentalism and discussing its parameters, is the impact on
progressive legal politics remaining in the wake of earlier
developmentalism. In this connection, the specific ways in which
developmentalism was rebutted in Latin America are important.
III. ROLLING UP THE BRIDGES (ACROSS THE GAP)
Aligning the law with economic development and social justice was not
in the abstract very controversial. Latin American leaders were anxious to
receive the new technologies associated with modernization. Especially in
the areas of law and economics and business law, Latin American
professionals were eager to tool up. Latin American jurists as well were
enthusiastic about the renewed attention and resources targeted to legal
institutions. The year 1959 marked the first of five regional conferences of
Latin American law schools to reconsider their curriculum.66 While framed
below in text). Id. at 94-95.
66. See GARDNER, supra note 2, at 56 (confirming that the first conference in Mexico City
consisted of more than two hundred and fifty Latin American delegates from forty law schools in
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in broad and somewhat vague terms, the need to adjust law to its social
setting was an articulated goal.67 The value of these conferences, according
to Edward Laing, lay in “the spiritual coming together and the widening of
horizons [, and these] were worthwhile achievements notwithstanding the
‘flagrant discordance’ between the accords of the conferences and their
application in each law school.”68 Yet, the division between reformers and
traditionalists was quite plain. In a prepared presentation for a subsequent
Latin American law school conference, scheduled in Argentina but not
held, Héctor Fix-Zamudio traced the dividing lines:
Due to this traditional exaggeration of our exclusively
theoretical juridical studies, a path is opening among Latin
American treatise writers worried about the abuses of
“dogmatism,” [demonstrating] an inclination for the socalled “empirical” studies, following the example of a sector
of Anglo-American treatise writers, especially those from the
United States, who have signaled the need to reduce the
predominance of those labeled pejoratively as
“bookteachers.”69
eighteen countries, with no North Americans in attendance).
67. See Laing, supra note 61, at 379. Laing highlights the following points:
[E]merging from the first conference was the recommendation, made in
connection with curricula suggestions, that legal education should be adjusted to
the social needs of the community and be related to its needs and those of the rest
of Latin America. This was repeated at the third conference, while the fourth
conference suggested some specific programs for law schools to follow in
fostering the social and economic welfare of the community and its members [for
example, free legal assistance and centers for legal information].
Id.; see also Héctor Fix-Zamudio, Docencia en las facultades de derecho, 3 BOLETÍN DEL COLEGIO
2 (1973).
68. See Laing, supra note 61, at 382.
DE ABOGADOS DE MÉXICO
For its basic activities ARED [national Colombian association for legal education
reform] has received some financial assistance from the Ford
Foundation. . . . Despite the fact that these, and other activities could only have
been beneficial, there has been some reluctance of other law schools to join
ARED, and teachers using the modern methodologies have experienced
considerable student resistance and been accused of brainwashing and conducting
unwholesome Yankee practices.
Id. at 387-88.
69. Fix-Zamudio, supra note 67, at 15 (author’s translation).
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The 1960s and 1970s also saw much localized, national interest and debate
on reforming legal education, such as in Argentina, Brazil,70 Chile,
Colombia,71 Peru, and various Central American states.72 In short, the
political environment offered an opening for reform. Furthermore,
developmentalism was supported by a worldwide focus on issues of
economic progress and the backing of powerful international agencies and
their resources. Not surprisingly, Latin American legal operators were
receptive. Indeed, there was a ready segment of Latin American reformers,
as evidenced by the regional and national conferences on Latin American
legal education, whose agenda developmentalists directly reinforced.73
70. See, e.g., Cláudio Souto, Sociology of Law: A New Perspective in Brazilian Legal
Education, 1972 ARCHIV FEUR RECTHS UND SOZIALPHILOSOPHIE 237 (1972). Souto describes the
introduction of sociology of law courses and an institute at the University of Recife law school. See
generally id. He credits William D. Macdonald of the University of Florida College of Law with
the following. Id. at 243.
The more general and important of these applied studies [within the institute] was
research initiated . . . under a topic suggested by William D.
Macdonald . . . [which] attempts mainly to survey opportunities for socio-juridical
research in connection with the reform of Brazilian legislation—opportunities for
research that could or should be carried out whether before or after the new codes
are put into effect.
Id. at 243. Souto was interested in framing a qualitative definition of the “living law” (beyond the
quantitative “high-frequency behavior”) which could form the basis for
the expansion of societies and of their problems of sociability, the increase of
internal and external communication, the needs of international life. All this seems
to demand a type of social control capable of adaptation to our modern society: a
social control less formal and less dogmatic and more flexible, more dynamic,
corresponding to the rapid change of the particular societies and the nature of the
international society, which remains, to a great extent, an informal one.
Id. at 245.
71. See Laing, supra note 61, at 383.
72. Id.; see, e.g., Mario Quiñónez Amézquita, El estudio del derecho y sus metodos de
enseñanza, 1 BOLETÍN DEL COLEGIO DE ABOGADOS DE GUATEMALA 2, at 4, 16 (1974) (“[P]odemos
afirmar que son las Facultades de derecho las más conservadoras y reacias a la implementación de
reformas . . . . Nosotros hemos considerado que Guatemala necesita un abogado con miras al
desarrollo, que conozca el Derecho de su país, la realidad del mismo.”); Antonio Vivanco,
Enseñanza e Investigación en el Derecho Agrario, 1 REVISTA JURÍDICA DEL PERÚ 151 (1974).
73. Of course, it is not clear how far Latin American-based reformers were willing to go. The
words of a leading figure in legal education in Colombia, Dr. Fernando Hinestrosa of the Externado
de Colombia, leaves room for doubt, stating that law is
not simply a science or a mere technique, nor speculative knowledge, nor a vulgar
method of doing things. But, as in its classical Roman ancestry, Law continued to
be an art and, require[d] a solid theoretical conception, a simple and direct method
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While the formula—essentially antiformalism—was not new to Latin
America, developmentalists had their own way of articulating it.74 An
emphasis on policy, pragmatism, and realism was surely a new turn within
Latin American legal discourse. Yet, it was no more than old wine in new
bottles. It represented a challenge to dominant legal discourse in much the
same way that other social-based efforts had attempted in the past. It did
so, specifically, by drawing authority from social and economic
imperatives and proposing different legal arrangements to attain them.
In any case, defenders of the traditional system did not wait long to
react.75 The potential of non-traditional argument as proposed by
developmentalists was soon undone.76 One mode of rejecting reform and
supporting traditionalism was to emphasize the importance of Roman law
of reasoning and decision and an universal criterion, with a clear humanist
flavor . . . .
Laing, supra note 61, at 386. Then again, legal mystification is not necessarily a proxy for lack of
reformist intent.
74. GARDNER, supra note 2, at 57-58.
The American legal assistance programs which later emerged had little apparent
memory or knowledge of the Latin American reform endeavor—a striking
omission in the American law and development literature on Latin America in the
early and middle 1960s, and an instructive comment on the American origins of
the reforms subsequently launched.
Id.
75. See, e.g., id. at 62-63 (describing the resistance in Brazil to legal education reform, where
an independent center in 1965 was created “largely because the Brazilian law schools were, in fact,
unreceptive to American notions of reform . . . .”).
76. A quite theoretical treatment of the tensions presented is the work of Eduardo García
Máynez of Mexico. Eduardo García Máynez, El derecho en el order del ser y como sector del orden
social, 19 REVISTA DE LA FACULTAD DE DERECHO DE MÉXICO 525 (1969). García Máynez
reinforces the traditional conception of law, and argues against “psychological” or “legal
consciousness” ideas about legality, in the following way. See generally id.
In other words, the execution of acts of consciousness in an individual or a
plurality of subjects does not constitute, rather it confirms or recognizes legal
objects. There is no doubt that the existence of these is found in the psychological
ambit, in conscience and individual feeling, but it does not depend on such
connection, nor is it limited by it.
Id. at 528 (author’s translation). García Máynez grounds law in the social order, but for him the
social order fixes the minimum requirements for co-existence. It is inter-subjective, rather than
collective, yet rises above individual will. When participating in society, individuals submit their
individuality to its pre-existing dictates. As such, in his work, the social order is not a source for
substantial change, rather it is already present and the source of existing legal rules.
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to the Latin American legal curriculum.77 Roman law is still a basic,
required course within most Latin American law schools. The course is
generally offered over a full year, and possibly more than any other
discipline firmly propounds the membership of Latin American legal
systems within the family of a European transnational law—the mainstay
of legal legitimation in Latin America.78 In 1967, the first Inter-American
Congress on Roman Law was held in João Pessoa, Brazil79—in effect, the
counter-conference to those mentioned above, targeting “pragmatic”
curricular reform. A few years later in 1973, at another such event, César
José Ramos Sojo of the Universidad Central de Venezuela captured the
sentiment of these meetings:
It is also worthwhile to observe that the crisis in higher
education is part of a more general crisis of culture. It is not
so much a determinate discipline which is questioned, but
rather the proper finality of studies imparted, the values that
until now have been represented, the concrete ideal which is
sought to be created.
In what concerns the studies of Law, we see widely
disseminated the persuasion that the interest lies in forming,
along the way more able manipulators of procedures and
competent drafters of acts and legal documents. It is then, as
77. See, e.g., Maria do Socorro Bezerra da Costa et al., Atualiçazão do ensino do direito
romano, 23 REVISTA DE LA FACULTAD DE DERECHO DE MÉXICO 53 (1973).
In no instance should the importance and utility of the study of Roman law be
placed in doubt, as it has come to conform a true legal consciousness through
above all legislation and case law. It is valid to consider it not a dead law that
should be forgotten. It is a living law, acting, and impregnating o amago as the
essence of other Laws.
Id. See also César José Ramos Sojo, Necesidad de una actualización de la enseñanza del derecho
romano, 23 REVISTA DE LA FACULTAD DE DERECHO DE MÉXICO 67 (1973). The author argues that
[t]he frequency with which we find the questioning of the modern study and
teaching of Roman law, inside and out of law schools, could have us believe that
it is a phenomenon exclusively of our times. As well it has been observed about
France, this attitude is more than 200 years old . . . . Notwithstanding this
observation by Accarias (“Roman law courses . . . are in actuality rejected by
students and attacked by reason of an undue suspicion by part of the peoples of the
world.”) the study and teaching of Roman law was conserved in the curriculum of
studies of Roman law in France, without transcendental reform. And what is valid
for France, can be said as well for our countries.
Id. at 67-68 (author’s translation).
78. See Esquirol, supra note 8, at 427 n.2, 431-32 n.14.
79. See Bezerra de Costa et al., supra note 77.
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a logical consequence, that Roman law and other disciplines
are not appreciated within such conception of scholastic
education.
From this cannot be excluded the utilitarianism of many
who register at law schools. According to the pragmatism, by
them maintained, only what can be translated into economic
gain and purchasing power should be the object of study, fast
and easy, within professional practice. For them, creative
activity, the attainment of order and the intuition of the
normative, [and] the social mission of the jurist of condere et
interpretare ius do not matter.80
Also, for example, Nina Ponnsa de la Vega de Miguens from Argentina
argues in the same symposium proceedings, published by the Universidad
Autónoma de México Law Review:
Other specialties, like for example sociology and
economics, approach their study with a prospective criterion
and projections toward the future. The mental training of
those that think in law is moved by the present and by an
objective field which is at the same time axiomatic, with the
concern to know and obtain juridical values whose nucleus is
justice . . . . Roman jurisprudence has meant an always
current truth, applied today in different fields of law . . . . It
is evident that legal education has as its principal end to
configure the mentality and way of thinking, in such a way
that the student acquires a certain logico-juridical habit that
is adapted to the normative system of his time . . . . It is
desirable the fact that the study of Roman jurisprudence be
every day more extensive and deep, despite that its learning
require the study of rules and prescriptions that are
frequently permitted and inapplicable in actuality. Its specific
objective is the training of scientific jurisconsults armed with
a special and necessary logic for the interpretation and
application of laws, which is acquired fundamentally through
the jurisprudence of the Romans.81
Other approaches and theoretical frameworks were also marshaled against
substantial curricular reform—essentially arguing against changing the
“European” identity of Latin American law.82 The new methods, to the
80. Sojo, supra note 77, at 70.
81. Nina Ponnsa de la Vega de Miguens, Necesidad de una actualización en la enseñanza
del derecho romano, 23 REVISTA DE LA FACULTAD DE DERECHO DE MÉXICO 21, 22-23, 25 (1973)
(author’s translation).
82. Cf. Victor Tau Anzoátegui, Importancia y estado actual de la enseñanza de la Historia
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extent they were actually introduced, were quickly undermined.83 Their
lack of success has been attributed, by certain scholars, to insufficient
resources and unsustained attention directed at curricular change; and
lethargy and inertia, or both, on the part of Latin American legal
professionals and law students.84 Yet, considering that legal
developmentalism’s main product was conceptual (an idea about the nature
of law and its application), its open resistance by Latin America’s legal
mainstream and the discursive forms this took, I maintain, is a significant
part of the explanation.
Dominant Latin American jurists and defenders of the traditional order
rejected the developmentalist opening and its democratizing potential.85
Introducing new variables within legal reasoning would, at a minimum,
require a different way of justifying settled divisions of power and
distributions of resources within society. Developmentalist methods,
del Derecho, 130 REVISTA JURÍDICA ARGENTINA “LA LEY” 976 (1968).
83. See, e.g., GARDNER, supra note 2, at 83.
Opposition surfaced [at PUC in Rio de Janeiro, Brazil], for example, in the form
of persistent faculty criticism that the new reform program—especially the
Development Law branch—was not law but social science. Eventually, after
intense intrafaculty struggles, the CEPED group and the dean were replaced by a
dean in the more traditional and conservative mold.
Id.
84. See, e.g., id. at 231-35.
85. See, e.g., Francisco Serrano Migallón, El derecho y la ley, 5 EL FORO 53 (1969) (arguing
that order is not a social norm, rather order is the goal of state law, as opposed to ideal justice or
the common, social good). In his view, state law can only achieve some rough measure of the ideal
of justice while providing peace for society to pursue its common good. Absent law, “una sociedad
sin orden sería un mundo donde reinase como única Ley el bajo instinto del egoïsmo y las insanas
pasiones humanas.” Id. at 54. But cf., Ambrosio Romero Carranza, A los cincuenta años de la
creación de una cátedra de derecho, 1973JURISPRUDENCIA ARGENTINA: DOCTRINA 287, 287
(arguing against the tendency in Argentine law schools to marginalize the study of political law;
“[e]n la actualidad el conocimiento del derecho político se ha impuesto como una necesidad urgente
e indispensable para el progreso de la vida social”); see also Sojo, supra note 77, at 77-78.
It is necessary to safeguard against the iconoclastic current of breaking all links
with the legal tradition in which we are inserted and which signals our common
destiny, Kischaker highlighted the contribution of Roman law in Europe, its active
participation as a constructive, harmonious and pacific element, of the sole city,
beyond national differences. Codifications of the French, Italian, and German
type, as works of Romanists, reveal the phenomenon of a common descent and a
common place of understanding. The codifications derived from the same cannot
be subtracted from the influence of Roman law which remains the fundamental
juridical datum, at the base of our social organization, a factor of unity.
Id.
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moreover, might go further. They could disrupt the long-settled
accommodations reached by the legal system. Accepting policies such as
the then widely-touted goals of economic progress and social equity, as
part of legal decisionmaking, could open to renegotiation the old bargains
struck. The lurch to the left, represented by dependency theory’s critiques
of the development model,86 further exacerbated the perceived dangers of
a substantial renegotiation, under the mantle of a “periphery-centered”
development.
In order to derail this possibility, traditional legal operators emphasized
the dangers of instrumentalism.87 Policy, rule-skepticism, and
antiformalism were all tarred with the same defect: legitimating arbitrary
laws. The focus on policy and social reality was associated with unlimited
deference to the government in power.88 To sharpen the point, following
this thinking, in a left-wing government antiformalism means the end of
private property and the rule of law; in a military dictatorship, it means
repressive norms of social control and autocratically-derived public
policies.89 By interpreting development methods as leading to these results,
traditional jurists called upon the fears of political extremism; the new
methods could just as easily legitimate arbitrary state action by
undemocratic governments.
Traditionalists sought refuge in their conventional role as defenders of
the status quo, containing the unruly masses on the one hand and
86. See ANDRE GUNDER FRANK, LATIN AMERICA: UNDERDEVELOPMENT OR REVOLUTION
(1969).
87. See GARDNER, supra note 2, at 117.
When, therefore, the OAB [Brazilian Bar Association] president, Faoro, discussed
“formalism” and “instrumentalism,” he in effect turned the legal models of
American legal assistance inside out. Rather than criticize legal formalism as
antiquated, for example, the movement perceived in legal formalism the “dorsal
fin” of liberal constitutionalism. Rather than encourage rule skepticim and state
instrumental law, the movement advocated formal rules and the rule of law.
Id. (footnote omitted).
88. An interesting example is the reaction of the Chilean Supreme Court to the legal
interpretations espoused by the Allende administration in the early 1970s. A significant amount has
already been written about the Chilean Court’s exceptionally activist stance and consequent delegitimation of legally valid, yet non-traditionally interpreted and applied, governmental programs
and enforcement actions. But see Velasco, The Allende Regime in Chile: An Historical Analysis 9
LOY. L.A. L. REV. 480 (1975-76) (sustaining that Allende’s actions were illegal, if not in the letter,
in the spirit of the law, thereby precipitating the Court’s justifiable stance); Neal Panish, Chile
Under Allende and the Decline of the Judiciary, 9 LOY. L.A. INT’L & COMP. L.J. 693 (1987) (also
attributing the Court’s actions to Allende’s violation of the separation of powers doctrine).
89. See David M. Trubek & Marc Galanter, Scholars in Self-Estrangement: Some Reflections
on the Crisis in Law and Development Studies in the United States, 1974 WIS. L. REV. 1062, 107084.
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restraining autocratic leaders on the other. The balance was maintained,
however, by defending against any deep transformation of the existing
order. Social-based legal argument presented such a potential disruption,
upsetting the balance enshrined by conventional legal reasoning.
Accordingly, traditional jurists helped rechannel, defeat, or otherwise disable the transformative potential of this legal technology. The specific
outcome of a development-inspired attempt at transformation in the 1960s
and 1970s is significantly illustrative of this occurrence.
Developmentalists, on their part, allowed themselves to be cowed.
Faced with the very real abuses of political extremists at the time, it
appeared Latin America was not ready for policy or pragmatic legal
decisionmaking.90 At least it was not so at the cost of reducing democracy
or progressive aims. Take for example James Gardner’s “terminal” review
of the Brazilian legal education reform project presented to the Ford
Foundation in 1973:
[T]he core of this conceptualization [producing more activist
and socially aware lawyers and a more humanistic approach]
may become very tenuous if law has, by the very essence of its
being, an enduring affinity for the status quo, and if lawyers,
by their class background, training, professional
reinforcement, etc., are among the more persistent agents of
the status quo . . . . Stated baldly: even to the extent that [the
grant] did succeed, it may have simply trained up more
effective agents of the status quo, and strengthened the
institutions which train these agents.91
Even worse, faced with the possibility of supporting dictators or Marxist
regimes, developmentalists pulled their own plug.92 Even an insightful and
critical scholar such as Gardner, cited above, fell into the belief that
90. See generally PANISH, supra note 88. Panish retreats into “separation of powers”
formalism when confronted with a politically-controversial, and for some, unbridled Chilean
pragmatism. See id.
91. See GARDNER, supra note 2, at 80-81 (quoting his own report) (second alteration in
original).
92. See Bilder & Tamanaha, supra note 2, at 474. The authors discuss the practical end of
law and development funding and scholarship after deep doubts were expressed within the U.S.
legal academy about exporting instrumental approaches towards law to authoritarian Latin
American governments. Id. “Trubek and Galanter did not, however, offer any suggestions about
what should replace the Western model.” Id. I agree with the authors’ views on the error of
imploding law and development but for very different reasons. The authors argue that its demise
was a result of purely “homegrown” U.S. political reasons—the Vietnam War, distrust in
government, and the rise of the critical legal studies movement. See id. at 474-76. They, however,
underestimate the impact and resistance of powerful sectors of Latin American societies and legal
intelligentsia to development-based reforms and to the politics of its proponents. See id.
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American legal assistance and repressive, state instrumentalism were
indistinguishable:
In summary, well before the arrival of American legal
assistance and the establishment of CEPED [the institutional
vehicle for legal education reform] in Brazil, that country’s
governing technocracy had accepted much of CEPED’s basic
perception of law: that formal, doctrinal law is antiquated
and is an impediment to development, and that instrumental
law is modern and is an important vehicle for social control
and social engineering. The governing technocracy [an
authoritarian military government] had started the public
sector on a forced march to state instrumentalism . . . . And
the Brazilian legal profession, as discussed above, was
bypassed and generally confused by, and attempted to catch
up with, this major jursiprudential change. American legal
assistance was not the “cause” of this fundamental breach in
Brazil’s traditional legal culture, of course. . . . It was
precisely this emerging public sector instrumentalism that
conditioned much of the receptiveness to CEPED’s American
jurisprudential models.93
Developmentalists especially came to see it this way, if they understood
their own project as simply getting law out of the way of the
developmentalist state. Up against an obstructionist Latin American legal
class resiting developmental policy, their notions of pragamatism,
antiformalism, and instrumentalism, which were intended to overcome the
resistance, became conflated with simply legitimating state action.94 Their
objectives were limited to undoing the separate authority of the traditional
legal profession to speak exclusively for the law, rather than providing an
alternative legal discourse capable of differentiating between different
types of state action. In the belief that the developmentalist state would do
the right thing, advocating the legality of its actions was a logical way to
align law with development. Once Latin American governments were
perceived as not doing the right thing, however, the strategy of undoing the
obstructionist power of the legal profession came to be seen as
wrongheaded. The backpedaling that marked the end of developmentalism
contributed especially to reinforcing—in legal discourse terms—the
93. See GARDNER, supra note 2, at 98-99.
94. See Dennis O. Lynch, supra note 10. In Lynch’s review of Gardner’s book, one criticism
stand out: Gardner’s failure to distinguish between positivism and naturalism within Latin
American legal formalism, and his failure to differentiate between instrumentalism and pragmatism
within North American realism. As a result of this confusion, formalism as natural law thinking
appears to offer a basis for resisting authoritarian government decrees: developmentalism as merely
instrumentalism appears to offer no brakes.
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connection between the independent authority of the legal profession and
traditionalist legal positions, the latter consisting of a narrow and
undemocratic conceptualization of law as necessitarian and univocal.
In any case, the whole legal development project was thus drawn into
question. In fact, public self-questioning and self-doubt ultimately
prompted the main U.S. and international agencies to withdraw their
support. Faced with the choice of either accepting the traditional political
settlement under the existing legal system or potentially offering legitimacy
to political extremes, they chose the former. This formulation of the
options, however, presents a false dilemma. While pragmatism and policy
can surely serve as handmaidens of authoritarianism, this discovery does
not undermine its ability to articulate critiques or to stand as alternative law
supported by the legal class, as a sustainable national legal discourse.
Furthermore, in this same way, legal formalism can offer a basis for
resisting state action, yet it can also be a singularly effective basis for
justifying repression. In any case, developmentalists backed away. They
were daunted by the traditionalist stranglehold on the conception of law
and by their own dualistic depictions of Latin American legality.
As such, developmentalism was shown incapable of providing
safeguards against political extremism, the same objection raised against
state instrumentalism. Developmentalists seemed to agree that the new
methods were in fact prone to legitimating arbitrary action, failing to
differentiate among different projects in policy pragmatist terms. Notably,
no effective opposition to state authoritarianism was conceived of, if the
multiple character of law were to be acknowledged openly.95 The only
95. See id. at 118.
[T]he legal engineer and legal instrumental models were in fact engaged as the
agents and the instruments of the state, and the models provided no coherent basis
for criticism of, or resistance to, an authoritarian state. For this resistance the
lawyers—Brazilian and American—turned to the formal legal tradition and the
rule of law.
Id. About Chile, Gardner asserts
[t]he low point [of the legal instrumentalism model as supported by U.S. legal
assistance] involved extralegal social action, encouraged by the state, as part of a
larger pattern of coercive engineering, beyond the reach of legislative
authorization, to force owners to transfer farms or businesses to the state sector.
In that situation the already blurred line between “law” and “policy” faded to
extinction, purposeful instrumentalism readily became state engineering beyond
the reach of legal instruments and judicial review, and the process, if unchecked
by legal or political institutions, became little distinguishable from raw state
power. In Chile, then, underlying instrumental models again demonstrated a
persistent affinity for policy and power—and a vulnerability to executive and state
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strategy apparently available against extremism was a return to univocal,
legal dogmatism. Traditionalism often frustrated the implementation of
developmental policies; on the other hand, it offered some traction and
autonomy against repressive regimes. This turn, however, greatly limits
and accepts the fear of political extremism as a valid limit on pluralist legal
politics. Acquiescing in necessitarian, univocalism as the lesser of two
evils reinforces non-dominant (be it framed as pragmatism, policy, or
antiformalism) legal argument as political. Furthermore, it postpones a
more democratic legal discourse for another day, for the sake of
condemning—with the strongest force of a univocal and unquestionable
law—an undemocratic government today.
Some recent commentators have criticized the 1970s withdrawal of
developmentalists on different grounds.96 They view the internal criticism
and ultimate termination of development projects as constituting as much
a U.S.-centered and imperialist imposition as the actual development
projects to which internal critics were objecting. However, reading either
developmentalism or its demise as solely U.S. phenomena presents a
picture of Latin American actors devoid of agency and fails as a fuller
explanation. The key feature of legal developmentalism was an idea about
legal reform through changing legal reasoning techniques. This idea was
not new within Latin American legal circles by the time foreign
developmentalists arrived, nor was the extensive resistance to it merely the
by-product of anti-Vietnam War protesters or intellectual crises over
modernization theory. It also reflected the interests of those standing to
lose from the reforms, and the discursive struggle that marks its defeat.
In this regard, casting social-based argument—including its policy
pragmatist version—as illegitimate legal reasoning and reemphasizing the
univocality of law by traditionalists played a prominent role. It has also led
to an equally forceful counter-strategy by progressives of arguing social
particularity and its distinctness from state legal institutions. Here, it is
important to differentiate between incorporating social considerations
within legal reasoning and, alternatively, claiming a hypostatized field of
social interaction deemed particular to Latin America. It is the latter course
that many progressives writing about Latin America have followed. The
motivations are multifold.
As deployed by 1960s and 1970s developmentalists, discussed above,
it can be traced to attempts to sweep the decks clear, to make room for a
ordering.
Id. at 184.
96. See, e.g., César Rodriguez, Globalización, Reforma Judicial y Estado de Derecho en
América Latina: El Regreso de Los Programas de Derecho y Desarrollo, EL OTRO DERECHO 25
(2001); see also Tamanaha , supra note 2.
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whole new program and set of prescriptions for the legal system. The
position is understandable: U.S. academics were not interested in engaging
in political struggles through the then existing Latin American legal
argumentative conventions nor did they want to be hamstrung by them.
Rather, they proposed a whole new playing field and a whole new agenda,
ones which they, of course, understood much better. Subsequent
generations of progressives, as discussed in more detail below, have
gravitated to this position as well. Attracted by the potential of introducing
multiplicity or pluralism to legal reasoning, consistently foreclosed in the
past, the strategy appears to be mere common sense. However, the
resistance of Latin America’s legal intelligentsia played an important role.
After the victory over development, reforms premised on social reality,
pragmatism, and policy are more clearly off the table, leading progressives
to ever more accentuated claims of an excluded and alternative social law.
IV. CRITIQUES
A. Critique of Latin American Duality
The predominant diagnosis advanced by developmentalists quite
obviously suffered from an overly reified conception of both Latin
American law and Latin American peoples. State law in Latin America is
not simply an inert, foreign artifact, nor are Latin American people unique
bearers of inimitable social particularity.97 Developmentalists deployed
these tropes, rather plainly, in furtherance of their overall project. The legal
culture was to be transformed, ostensibly, to encourage the legal system to
respond to social needs and policy objectives.98 A new deal was required.
97. See Esquirol, supra note 8, at 461-64.
98. See, e.g., Roger W. Findley, Ten Years of Land Reform in Colombia, 1972 WIS. L. REV.
880, 910-11. Findley attributes, in part, the slow progress of Colombia’s 1961 land redistribution
program, enacted out of fear generated by the Cuban Revolution, to resistance by the courts.
INCORA [the administrative agency charged with executing land reform] has been
particularly hampered . . . by reversals in the Administrative Disputes Courts,
some of which appear to be considerably more sympathetic to the interests of large
landowners than to the goals of the land reform program. Acquisitions have been
invalidated for minute deviations from prescribed procedures. . . . Because of the
vagueness of the statute and the latitude which it gives an unsympathetic court
seeking a way to upset a finding of inadequate use [the legal standard required],
INCORA personnel in expropriation proceedings have been greatly concerned
over the possibility of lengthy appeals and, ultimately, reversals.
Id. In discussing pending legislation in 1972 to improve the system, he notes that
[t]he bill would establish an entirely new system of specialized land courts. These
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To do this, traditional political and economic arrangements enacted
through law, and their articulated justifications, had to be undone. The card
played was none other than the disconnectedness of official law from
social reality.
This claim, rather than a sociological or cultural discovery, was a
challenge to the political compromises that had been hammered out
through the legal system at the time. A systematic overhaul of those
settlements could only be effected by re-opening the bases of legal
decisionmaking.99 Reforming legal methods and introducing “social law”
arguments were crucial. They offered a way of renegotiating the
established political and economic deals. Drawing on a social sphere of
human interaction has been the tradition within legal theory in both the
United States and Continental Europe, as discussed above. It can be traced
to calls for undoing the strict positivism of the 19th century.100 It has fueled
countless reform efforts against laws perceived as out-of-step with
contemporary realities.101 Conversely, it has also assisted in defending state
law against delegitimating critiques. Social theories of law are not new in
Latin America either.102 In different degrees, the legal culture has
assimilated both challenges and affirmations stemming from notions of a
separate social source. A comprehensive study of these would be valuable
at this point, but is unfortunately beyond the scope of this work. Yet, the
courts would have exclusive jurisdiction to hear many of the trials and appeals in
expropriation and extinction cases now handled by the administrative and civil
courts and would be directed to apply a social philosophy sympathetic to the land
reform program.
Id. at 921.
99. See, e.g., Wolfgang G. Friedmann, The Role of Law and the Function of the Lawyer in
the Developing Countries, 17 VAND. L. REV. 181, 186 (1963).
If the lawyer continues to be identified, as he predominantly is at the present time,
with the defense of the existing order and of vested interests, against the urgent
needs and interests of societies that must lift themselves from poverty and
stagnation to a radically higher level of economic and social development, often
within a desperately short time, the lawyer will eventually be reduced to an
inferior and despised status in the developing nations.
Id.
100. See Marie-Claire Belleau, Les Juristes Inquiets (1996) (unpublished S.J.D. dissertation)
(on file with the Harvard Law Library); see also FRANÇOIS GÉNY, MÉTHODE D’INTERPRETATION ET
SOURCES EN DROIT PRIVÉ POSITIF: ESSAI CRITIQUE (1899).
101. See EHRLICH, supra note 13, at 391-411; see also Rodolfo Sacco, Legal Formants: A
Dynamic Approach to Comparative Law (Installment II of II), 39 AM. J. COMP. L. 343 (1991).
102. See generally Medina, supra note 38; see also Liliana Obregón, Nineteenth Century Latin
American Internationalism (unpublished S.J.D. dissertation in progress) (draft on file with author).
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existing work of Latin Americanists is sufficient to demonstrate prior uses
of social theory as a mode of intervening in legal discourse.103
Social alternity, in its sense of otherness from the legal system, is thus
not novel within Latin American legal discourse. Simply put, it was also
the technique of choice for developmentalists. The introduction of this
concept does not serve any new or better understanding of the workings of
the legal system. Rather, it is an argumentative move within legal
discourse. Highlighting the estrangement between legal and social spheres,
simply as a logical matter, may argue in favor of transforming existing
laws or possibly assimilating society to the law in place. Both the
extensiveness of legal reform or, alternatively, the intensity of legal
penetration efforts depend on the objectives of its proponent. In this way,
it can be less a claim about a particular reality than an effort to transform
that reality. Understood as such, developmentalists’ emphasis on the
dichotomy between law and the social order then should not be read as the
key, idiosyncratic element or identity of Latin American legal systems.
Instead, these writings may best be read as advancing particular political
or programmatic objectives, swaddled in the argumentative device of
social-legal duality.
Developmentalists’ claims then can be viewed as less about the actual
functioning of Latin America’s legal systems than about the particular way
or particular deals cut under those official systems. Indeed, considering the
fact that many developmentalists had little prior familiarity with the region,
its languages, and the peculiarities of its various legal systems, it stands to
reason that their intervention, in the mode of description, was designed to
clear the decks. Advancing the irrelevance of official law, as a matter of
fact, gave them a free hand to drive through a broad agenda, unencumbered
by the necessity to work from within the existing state of legal play. Their
reform objectives, or renegotiation objectives, were assisted by calls
reconnecting them with social reality and attuning the legal system to local
culture. In fact, of course, Latin American legal systems were already
responding to social reality and were inseparable from local culture. The
social norms and policies in place, however, were simply different from
those advanced by developmentalists.
B. Critique of an Identity Approach to Latin American Law
The portrayal of informality, and the gap in developmentalist literature
often projects this device as a peculiar or especially exaggerated aspect of
the local legal culture, cast in terms of the sociological or cultural
particularities of Latin Americans in relationship to law. It is this claim
which is untenable as an empirical fact peculiar to the region. Such
103. See generally Medina, supra note 38.
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phenomena as gaps and informality are common features of all legal
systems. Nonetheless, in one of the better known developmentalist pieces,
Keith Rosenn, despite acknowledging the occurrence of informality
elsewhere, sustains its cultural dimension in Brazil:
Plainly Brazil is not unique in this respect; bending of legal
norms to expediency occurs in all countries . . . . But what is
striking about Brazil is that the practice of bending legal
norms to expediency has been elevated into a highly prized
paralegal institution called “jeito.” The “jeito” is an integral
part of Brazil’s legal culture, and in many areas of the law it
is employed normally rather than exceptionally.104
It is this construction of “paralegal,” sociological, or cultural identity,
which the above citation is an example, that this Essay rejects. My claim
is that giving a sociological cast to, circumventing administrative red tape
through legal fictions, even if they are far-fetched fictions, advances the
idea of a qualitatively distinct Latin American conception of law. And yet,
legal fictions are a time-honored device of all formalized systems.
Furthermore, making a judgment as to the degree of informality and then
characterizing it as evidence of a cultural phenomenon leads to a
misconception. It downplays the role of resources and political will in
effective law enforcement, highlighting instead the social incongruity of
the legal system. This mode of arguing for law reform has contributed to
the belief—and to the rhetorical construction—of an identity of Latin
American law that is essentially discordant with a separate cultural system
in place.
This particular Latin American situation is typically contrasted to the
way law operates elsewhere, especially in developed countries. Advancing
cultural reasons for the refracted ways in which official law operates across
society creates a picture of multiple and distinct systems of legality at
work, each with its own relative degree of legitimacy. Classifying legal
informality as cultural or social displaces on to Latin America a common,
yet not readily admitted, feature of all modern state law. It preserves, by
contrast, an idealization of developed legal systems as able to transfuse the
entirety of human society and amply consensual throughout, evidenced by
the projection of a uniform internalization. Such a fiction does not hold
even among officials of the same state apparatus, much less across whole
societies. In any case, its predominant effect is to undermine Latin
American legal institutions by highlighting, as extraordinary and
pathological, features which are quite common. In the long run, which is
my point in this Essay, it has not served progressive causes well.
104. See Rosenn, supra note 20, at 254.
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This is not to say that experiences of legal pluralism are wholly
invented nor that the term is completely inapposite as a characterization of
certain phenomena.105 In fact, legal pluralism is an appealing concept
because it is so present everywhere. Even if one differentiates between
types of legal pluralism, the notion is deployable in almost any context.106
Furthermore, it has been quite effective both as a conceptual and a political
tool for indigenous communities in Latin America.107 Identifying
indigenous norms and recognizing them at the level of state law or quasistate law has been, according to its proponents, an effective strategy in
recent decades.108 To what extent the outcome has been, in the best of
cases, anything other than an aggressive decentralization of dispute
resolution functions can be debated infinitely. Regardless, many
progressive scholars focusing on indigenous rights laud its potential.109 My
analysis and criticism, here, do not extend to these gains. In the context of
indigenous groups, legal pluralism may indeed be a politically useful
concept. However, in terms of a diagnosis or an intervention in national
legal discourse, the notion—often advanced as a corollary of the gap
between law and society—has come to be counterproductive to progressive
aims, as is discussed below.
Furthermore, my argument does not deny that there are identifiable
differences between law as enacted and popular sentiment or even local
practices. Of course these exist. However, this does not mean that Latin
American societies are evidence of this difference any more than anywhere
105. Sally Merry, Legal Pluralism, 22 L. & SOC’Y REV. 869 (1988).
106. See, e.g., BOAVENTURA DE SOUSA SANTOS, ESTADO, DERECHO Y LUCHAS SOCIALES
(1991) (sustaining that legal pluralism extends to collectives based on cultural, guild, racial,
religious, territorial, and other criteria, which have created their own normativity that regulate
various spheres of social life and permit them to resolve their conflicts).
107. See, e.g., RAQUEL YRIGOYEN FAJARDO, PAUTAS DE COORDINACION ENTE EL DERCHO
INDIGENA Y EL DERECHO ESTATAL (1999).
108. Id. Note however that the advances in recognizing legal pluralism in Guatemala, as
obtained in the peace accords in the mid-1990s, were ultimately defeated by a popular vote in May
1999 against the relevant modifications to the national constitution.
109. The way that separate indigenous law is being conceived by its defenders is, nonetheless,
cause for concern and subject to the same critiques levied here against dominant legal traditionalism
in Latin America. Defenders of this separate system argue for its stature on a par with state law.
Additionally, many argue the incommensurability of its cosmovision and identity with Western law,
thus arguing the inability of judging it by human rights principles (or any outside-derived criteria).
These advocates, however, run into the error of presenting indigenous law as an arena which can
only be understood and observed by outsiders but not in which they can participate. Dangerously,
under this framework, outsiders can become anyone in disagreeing with or challenging the
hegemonic interpretation of such indigenous normativity. Contra Esther Sanchez Botero,
Aproximación desde la antropología jurídica a la justicia de los pueblos indígenas, in EL
CALEIDOSCOPIO DE LAS JUSTICIAS EN COLOMBIA (2001); see generally Beatriz Eugenia Sanchez, El
reto del multiculturalismo jurídico; La justicia de la sociedad mayor y la justicia indígena, in EL
CALEIDOSCOPIO DE LAS JUSTICIAS EN COLOMBIA (2001).
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else. Legal diversity, to some degree, is part and parcel of any application
of law. One need only look for it to find it. Specific communities often
assimilate generalized rules in idiosyncratic fashion; undocumented
immigrants live in a constant state of informality; political dissidents and
marginalized groups abide by their particular loyalties; and the various
institutions of civil society all produce their own codes of conduct, not all
of these always in strict alignment with written law. To the extent Latin
America is perceived as any different, in these terms, it is more logically
the result of scarce enforcement resources and lack of political will, at any
one time, to increase repression. Raising the image of lawlessness or its
positively-stated analog, an accentuated social-legal gap, to the level of a
deep cultural and historical characteristic is all together a different matter.
This is part of the legacy of law-and-development scholarship, as this
passage on the gap or extra-legality of market transactions illustrates:
Ironically, corruption itself is often a response to conditions
of insecurity. If strangers are suspect, then the world of
market transactions is cold and forbidding. A bribe turns a
t r ansactional r e l a t i o n s h i p i n t o a “ m o r a l ”
relationship—although the word “moral” may be jarring in
this context—by defining a new particularist moral
community. Such a community is functionally analogous to
the community created when one person becomes the
godparent (padrino) of another’s child, making the two “coparents” (compadres), bound to each other in quasi-familial
loyalties that imply, among other things, some forms of
economic support.110
The preceding is an example of the curious characterizations sketched by
developmentalists, many seemingly riding on an undercurrent of racial or
cultural preconceptions.
C. Critique of “Exoticized” Latin American Law
During the high period of developmentalism, there were of course
already existing critiques within the bosom of law-and-society regarding
simple distinctions between the legal sphere and the social sphere.
Furthermore, there was a growing body of critical literature which took
exception to the dichotomies presented by legal sociologists and
questioned the motivations of this type of analysis. The apparatus
employed by developmentalists in Latin America was already more richly
explored within academic circles than the legacy of developmentalism
would lead us to believe. The notions of a gap and of separate spheres were
110. See, e.g., KARST & ROSENN, supra note 8, at 638 (emphasis added and footnotes omitted).
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contested propositions even as they were being deployed to describe reality
in Latin America. Of course, concepts about the law’s social effects and
social engineering through law were still common. What is curious is that
when depicting Latin America, it was possible to present the dichotomy in
the starkest terms possible without raising much of an eyebrow.
This aspect of developmentalist writing deserves some attention.
Scholarship about the U.S. legal system by U.S. legal scholars could not
have drawn such a clean divide between society and law, nor could it have
implanted the notion of a systemic gap between the two in such
uncontestable ways (of course, the point for most centrist U.S. scholars
writing about the United States at the time was precisely to avoid doing
so). David Trubek and Marc Galanter approached the phenomenon from
this perspective.111
[I]n view of many areas that diverge from the model [liberal
legalism], there is little reason to assume that it represents
the typical or normal case of legal regulation in this [U.S.]
society. The gap between the law on the books and the law in
action has been discovered innumerable times (in race
relations, divorce, school prayers, and criminal justice, for
example) but the implications of this discovery depend on
one’s picture of what is normal and typical in our legal
system. Within the received paradigm, each instance of the
gap tends to be dismissed as an exception—something
atypical, peripheral, and transient. Awareness of such
discrepancies does not induce professionals to relinquish
their model of the legal system, for the persistence of the
paradigm is powerfully supported by the training and
intellectual orientation of the profession.112
While this is undoubtedly so, in the contrasting case of Latin America,
forceful pre-existing beliefs assisted. There, the gap was starkly presented
as between the official law as a whole and a separate social sphere. The
plausibility of this notion is no doubt reinforced by popular ideas about
Latin American lawlessness. The easy acceptance of a systemic breach
between law and societal behavior dovetails with widely popularized
images of Latin Americans. The figure of the “bandido” or the outlaw
possibly comes into play. The unreflective assumption of Latin Americans
as law breakers makes the academic diagnosis of the same appear rather
unproblematic. Exoticizing these societies, indeed characterizing them as
somehow beholden to different conceptions of the meaning of law, plays
a large role. In this milieu, individual scholars’ observations, or even
111. See generally Trubek & Galanter, supra note 89.
112. Id. at 1082 (footnote omitted).
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scientific studies if you will, about Latin Americans’ lack of attention to
traffic lights or strategic manipulation of bureaucratic obstacles come to
constitute evidence of a different, qualitative idea about the nature of law.
This is not to say that proponents of gap analysis in Latin America
harbored racist designs. That would obviously be an exaggeration. Some
rather unfavorable images, however, part of the collective background, do
support the relative plausibility of developmentalists’ assertions.
Conservatives may have found it only natural that Latin America was
fraught with lawlessness. Progressives, among them many
developmentalists, relativized the differences as cultural. The move of
aligning moral authority with societal behavior—rather than with official
legality—was then but a short step. That is, the norms to be valued and
upheld were to be found within society and not within the state, at least
some of them. In any case, this framework reinforces the belief that the
actual norms accepted and internalized by the people of Latin America are
quite different, sociologically, from European or Western counterparts.
State law by contrast stands either as an objectionable imposition of power
or, in the best case, a quixotic concoction of Latin American elites.
Ironically, law-and-development’s diagnosis, by pressing this image of
social alternity, entrenches the notion as a dominant understanding of Latin
American law as well as an increasingly accepted self-understanding by
Latin Americans. The repeated representations of systemic lawlessness, or
“gap,” between law and society, a debatable proposition at best about
underlying reality, has a more insidious effect. It contributes to the actual
internalization of this notion as part of Latin American legal identity.
Clearly, my use of cultural ideas in this context does not adhere to a view
of culture as an independent variable. Rather, it views culture as the
aggregate of a dynamic panoply of images and devices, deployed in
furtherance of myriad political projects in competition within society. As
such, culture is created and given content by influential intellectual work,
such as law and development scholarship, at times by claiming merely to
represent an already existing reality. My point is that the claim to reality,
here, is strategic—consciously or not. It is not a serious empirical claim.
It is rather an argumentative commonplace, routinely deployed within
modern legal discourse to challenge or support a particular position.
In any event, law and development scholarship marshaled the
proposition that Latin America experiences a larger degree of discrepancy
between law and society, even if other legal systems may also experience
divergences.113 Cataloguing these divergences has, in fact, occupied a great
many Latin Americans who have taken the point seriously. This type of
113. See, e.g., Rosenn, supra note 20, at 267 (stating “[i]n Brazil, to a greater degree than in
many countries, much of the ‘living law’ bears little resemblance to the law on the books”).
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academic work continues to attract even progressive scholars. The
framework etched by developmentalists thus continues to dominate Latin
American law scholarship today.
D. Critique of the Hyper-Social
The motivation of developmentalists and others following in their
tracks, manifestly, is often (although not only) to stake an alternative,
authoritative position from which to challenge dominant legal positions,
clearly a valid aim. Take for example, the proposal of Jorge Witker, law
professor at the Universidad Autónoma de México, who in 1974 spliced
together the law-and-development framework, depicted here, and “French
sociological jurisprudence” to argue in favor of bridging the gap between
positive law and the law in action.114 Specifically, he suggested how such
a move could be operationalized in Latin America:
For example, the majority of our [Latin American] legal
orders possess open institutions such as the concept of good
customs, the concept of the moral, that admits for
connotations that are not necessarily individualist, and the
public order [which is] of a vast generality in which the
social or collective interest may prevail over an absolute
liberal will. Lastly, the “so-called legal lacunae” that permit,
fundamentally, the judge to operate with flexibility and
breadth even within legal dogmatism. In synthesis, even
positivist state norms whose range of observance is limited in
our societies and whose conceptual structure is essentially
static, permits, overcoming the until now prevailing criteria,
to search for the necessary harmony between effectiveness
and validity of the norm and its efficaciousness or concrete
normativity.115
In the specific context of 1960s and 1970s law and development, the
alliance between international advisors and legal reformers in Latin
America may have consisted of nothing more than an interest in better
articulated legal decisions, requiring different considerations to be
incorporated as part of accepted legal reasoning.116
114. See Jorge Witker, V., Derecho, desarrollo y formación jurídica, 24 REVISTA DE LA
FACULTAD DE DERECHO DE MÉXICO 659 (1974).
115. See, e.g., id. at 663.
116. See, e.g., Carlos Gaviria Díaz, La enseñanza del derecho en nuestro medio, 27 ESTUDIOS
DE DERECHO: ORGANO DE LA FACULTAD DE DERECHO Y CIENCIAS POLÍTICAS DE LA UNIVERSIDAD
DE ANTIOQUIA 5 (1968). Gaviria rails against the hodge-podge, “historical” reasoning methods of
mainstream Colombian jurists, which he maintains lead to legal dogmatism:
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The legacy of law and development, however, is of a different order. It
set the framework for subsequent reform efforts. It also catapulted forward
claims about a distinct and isolated social order. In its wake, numerous
attempts have sought to prove the substantiality of a dense, alternative
legality existent in Latin America. As the argument goes, the formal legal
system is not only politically insensitive to social interests but, moreover,
is unreflective of genuine local normativity. It is this approach, deployed
by developmentalists and legal sociologists alike, which continues to frame
separate social and legal spheres in Latin America.
However, in the wake of traditionalist critiques of social methods and
arguments as non-law or as social science, to offer some traction the social
field required reconstructing, not as a normal and routine source of legal
renovation, but as a substantial, different, and irrepressible contrast to the
accepted conception of the formal legal sphere. As such, development
scholars and, more so, others following in their footsteps propose that
social realities—whether characterized as modern law or a societallyderived code—must be introduced within Latin American legal systems.
For many Latin American progressives, loyal to the concept of sociallyconnected law, this approach then entails the articulation of a separate and
available social normativity. And, as mentioned already, considerable
resources have been expended on identifying—effectively attempting to
create—such a justifiable, norm-producing social content.
My criticism here of this hyper-social field, in addition to rejecting the
particular existence of social-legal disconnection or its purportedly
extraordinary degree in Latin America, is to take objection with its
extensive effects. The paradigm entrenched by development scholars treats
behavioral divergences from the official legal system as evidence of a
separate sphere of society. The official legal system is then presented as
malfunctioning because it does not sufficiently mirror the social side.
Demonstrating the content of different social behavior is taken as proof of
this malfunctioning. It presents the justification for changing the formal
legal system. It also suggests that “social legality,” “modern law,” or some
such other better suited system take its place. These efforts by legal
scholars were, and continue to be, misplaced if not outright
The fear that legal formalism is instilled in many does not come from its taking
part in favor or against the existing status, rather from its remaining neutral and
not committing to the preservation of a cracked system nor to the struggle to
replace it by one judged better. In place of a theory of that type, [they] prefer to
conserve devalued doctrines or even better [doctrines] withdrawn from circulation
in the scientific world, which fulfills nonetheless the ideological function assigned
by the moment.
Id. at 8. In its place, he argues for scientific criteria which can be demonstrated objectively as
suitable to a given situation. See generally id.
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counterproductive. They reify the notion that a separately defensible social
arena, more legitimate than the legal order, exists. In this way, it may be
believed, social specificity can be more easily invoked for particular reform
efforts. However, this tactic of appealing to the hyper-social, as I explain,
should not be necessary. The social sphere is already part of the
conventional repertoire of legal technique, even within the sources of legal
authority cited by traditionalists themselves. Moreover, the vast efforts at
inscribing social-based reform with authentic or organic value is
counterproductive, considering the widespread skepticism with which
these notions are held. Statements about social norms of this type may, in
the end, be actually more easily dismissed as incapable of fulfilling their
own claims.
In any case, the quintessential legal reform strategy of the last
century—law’s disconnectedness to society and reality—is repeatedly
replayed within the Latin American context, without much effect.
Continuous frustration with these failed efforts leads to larger and larger
claims about an excluded social content. Additionally, a separate social
normativity is presented as an option to state law. New legal
techniques—often empirical ones—are said to hold the promise of
introducing external society within formal legal discourse or of replacing
it all together. The impetus for reform hinges on accentuating the
discrepancy between state law and the social sphere. The greater the gap
the more untenable the traditional system and the greater the urgency for
reform. Yet, success has been misunderstood as requiring the articulation
and defense of a distinct social sphere in fact.
In short, developmentalists and their progeny have assisted in
transforming the argumentative device of “invoking the social” as an
identity-based progressive political project in opposition to the identity of
the official state system. The acquiescence in this move by many
progressives has resulted in substantial work directed at the project of
identifying and defending such a social normativity—all with the
underlying purpose ultimately of standing side-by-side or even replacing
the official legal orthodoxy. Such efforts are unnecessary—as well as
misguided—since interventions in official legality based on social reality
can be accommodated, and exist as a routine device within modern legal
systems. Ironically, it is the very work-product of legal sociologists today
that continues to reinforce the notion of separateness between law and
society and attempts to construct a never-sufficiently-well-articulated
social alternative, situated outside legal institutions.
It is this latter course which, rather than offering a promising alternative
to Latin American traditionalists, falls into their hands. In effect, with the
aim of forcing the consideration of social conditions within legal discourse
by arguing their irrepressibility and undeniability, progressives accept the
thick demarcation between legal and social realms. And, they pre-construct
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the social field—deep and dense—as different from law. Moreover, these
characterizations are often given the form of sociological or cultural traits.
The emphasis on a marked social identity typically coincides with the
vesting of Latin American informality, legal pluralism, and social practices
with a scientific, sociological flavor. Yet, this quadrant or strategy of
political legal struggle is already effectively preordained as non-law by
traditionalists, responding to the first wave of developmentalist reform
efforts.117
The implications of my claim here extend to examples and periods
beyond the scope of this Essay.118 However, my hypothesis points to
repeated instances in which the critical edge of social argument in Latin
American legal discourse has been blunted; its traction undone by
defenders of the existing legal bargains. While this Essay obviously can
only begin to examine this phenomenon, the circumstances surrounding the
law-anddevelopment movement are an apt example. This is not to say
that the category of social argument was rendered problematic solely
because of developmentalism. This would be an overstatement.
Nonetheless, the use of social argument has been rendered more
problematic at various historical junctures where proponents attempted to
make significant use of the device. Tracing the circumstances surrounding
these other moments is a topic for additional work. The study of
developmentalism here presents some significant, preliminary insights.
V. TRADITIONAL LEGAL DISCOURSE REINFORCED
Conventional jurists, plainly enough, maintain the political status quo
by cloaking it with the authority of law. This authority is upheld through
the primacy of dominant legal discourse and the discipline of accepted
modes of legal reasoning. Admitting a different or more expansive, yet
similarly authoritative, mode of legal reasoning would require new
justifications or rationalizations for the existing political bargains. This
opening could, in effect, result in the striking of different social and
117. See, e.g., SOCIOLOGÍA JURÍDICA EN AMÉRICA LATINA (Oscar Correas ed., 1991). Writing
the foreword on a collection of articles on legal sociology in Latin America, Correas notes the wide
divergences of these academic practices across the countries of Latin America. He notes, however,
their one common feature is their politicization. He comments on the “First World perception,” in
his view, that this is an inferior practice as compared to the First World’s “scientific” legal
sociology. He notes the difficulty of Latin American legal sociology to get beyond politics, and he
also champions the case that this political position is due to the injustices that continue to afflict
Latin America (as opposed to the White world). Under my framework, Correas’ observations more
than anything else reflect his condition, the marginalization (and self-marginalization) of legal
sociology as political, not because of some knowledge deficiency on their part, but as is explained
in the text of this Essay.
118. See generally Esquirol, supra note 8 (discussing another example in which the critical
edge available through French socio-historicism was also blunted).
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political arrangements. It is precisely this new deal that was, in reality, the
original goal of developmentalism. Progress would be achieved through
incremental changes within the political economy, driven in part by the
legal system, which would enlarge the class of enfranchised citizenry. This
was the goal of 1960s Latin American reformism, as opposed to a more
radical, revolutionary break. In effect, the notion of alternative legal
techniques has the very purpose of re-dealing the cards.
However, it is also this renegotiation which traditional jurists
highlighted as a way to intimidate progressive reformers. The fear invoked
was a disruption of the delicate political balance established through law.
Absent traditional legal limits, a free-for-all could ensue. Specifically,
extremist political tendencies in Latin America might not be kept in check.
The political aim of developmentalists’ interventions, in this case, would
be completely reversed. Rather than offer room within the legal system to
pursue progressive aims, developmentalist methods could be just as easily,
if not more easily, used to justify repressive regimes. Particularly, if the
developmentalists in question believed in the vast malleability of law, this
danger loomed large and real. Furthermore, even if a new political bargain
could be struck, it would not henceforth have recourse to the
unquestionable authority of law to preserve it. The legal sphere would be
indelibly compromised, undermining its ability to justify a new political
bargain, while also admitting its past role in legitimating the old order.
The end of developmentalism offers some clues to understanding the
failure of other historical attempts at introducing social reality,
pragmatism, policy, or generally antiformalism within Latin American
legal discourse.119 Considering the political leanings of most development
lawyers, the risks presented were obviously too great. However, the
choices presented were, I argue, unjustifiably limited. Reformism was too
quickly defeated by the fears of its own proponents. Chiefly, that fear was
made all too real as a result of underlying perceptions of Latin American
political culture. The reality of autocratic, military governments and rightwing coups reinforced the plausibility of a potentially more reactionary
119. See, e.g., Bilder & Tamanaha, supra note 2, at 475-76.
I would suggest that, in a remarkable contradiction, the implication of
Trubek/Galanter’s objection to instrumental attitudes toward law is in direct
conflict with the thrust of their argument and with their legacy to the field: what
is needed in a developing country—to protect against the dangers of a purely
instrumental view of law—is an established and functioning, formalistic-oriented
rule-of-law system!
Id. Bilder and Tamanaha fall into this false dilemma as well. They address the alternative pole, legal
formalism. This is precisely the argument made by Latin American traditionalists. Formalism
represented the discursive practice under the latter’s control.
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political deal as a result of a shift in the legal status quo. In addition, at
least for developmentalists, social norms were not in reality a democratic
check on state law. Traditionalists, and chastened developmentalists,
understood Latin American societies as lacking these constraints.120 The
perception of such lawlessness is, in fact, what makes the ultimatum so
compelling. Legal traditionalists, at least, offered the possibility of keeping
right-wing rulers to some account. If belief in the unquestionability of law
was somehow shaken, then the legal establishment would be at a loss to
reestablish authority. Undemocratic autocrats would be able to wield their
power freely.121
This conundrum has played a repeated role in dismantling reformist
legal projects in Latin America. The choice facing reformers is, on the one
hand, to uphold the sanctity of law with its existing trade-offs, or, on the
other, to do without the legal system as a tool of social governance. They
must either withdraw from reform efforts or risk losing the support, and
cover, of traditionalist forces. By their rejection of social-based legal
discourse, traditionalists in effect refuse to agree to law’s standing as
unquestionable authority if it means legitimating a new political deal
ushered in by social reformism.122 This places reformers in the position of
potentially winning the battle, but at the price of losing the war. Any gains
achieved would stand precarious as a result of the compromised nature of
120. Bilder and Tamanaha argue that a debilitating critique, stopping “1970s
developmentalism” in its tracks, was the charge of ethnocentrism associated with liberal legalism.
Id. at 481-83. My argument is that this is a rather secondary point if not an all together irrelevant
concern—a red herring for both those making the claim and those rebutting it—at least in the Latin
American context. Traditionalist Latin American legal discourse emphasizes its membership within
the Western family of law. Thus, transplanting further aspects of Western liberal legalism is not
much of an objection at all. Additionally, the entire critique of ethnocentrism is built on the dualism
of law and society. Specifically, the sociological claim of a separate and autochthonous law is
upheld by contrasting it with an essential and contrasting development identity. This Essay offers
a different framework from which to conceptualize this dualism, and the claims and critiques that
spring from it.
121. Indeed, for Gardner, for example, the Allende project of “revolution through law”
consisting essentially of dusting off old laws and finding loopholes in existing laws to push through
radical reforms (not in fact contemplated by the formal legal materials) demonstrates how legal
instrumentalism is most effective the more authoritarian or non-democratic a government is. See
GARDNER, supra note 2, at 179. Gardner’s argument basically boils down to the point that
Allende’s brand of legal instrumentalism did not work in the end because he retained (did not close
down) democratic legal institutions (unlike in Brazil) and arrogated legislative power to himself.
See id. Under this framework, the more authoritarian the better legal instrumentalism, and thus U.S.
legal models will work to legitimate whatever is said to be law. See id.
122. See, for example, Jorge Witker’s description of the conservative Chilean Supreme Court’s
systematic undermining of President Salvador Allende’s social program, leading to his delegitimation and the ultimate overthrow of democratic government. Witker, supra note 115, at 66769.
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legal authority, sabotaged by traditionalists threatening that any social
reformist success would be the product of a politicization of law.
Reformism foreclosed, the option left would involve a system-wide,
revolutionary rejection of official law. This was exactly the turning point
for developmentalism. With few options for progressive reform that would
preserve legal authority, proponents would have to reject the entire system,
in terms of its foreignness or social disconnectedness, and then follow
through with the conclusions. The choice, under this state of affairs, soon
becomes radicalized: reject official law and draw on other social
constraints as a system of governance or desist from social reform through
the legal system.
My argument is not in favor of either of these options. It is rather to
argue against the necessary nature of this limited choice. In its place, I am
advancing social-based argument within national legal discourse through
to its ultimate conclusions, notwithstanding the threats of traditionalists.123
Furthermore, my analysis urges progressive reformers to re-take their
engagement with official law, broadening the field of political struggle and
debate over the meanings of texts and policy. My approach proposes a
more democratic legal discourse, expanding both the terms and
transparency of legal debate, rejecting necessitarian univocalism without
foreclosing the above-political authority of law. It is not a very
revolutionary or paradigm-shifting proposal, but in the Latin American
context it challenges a true bottleneck choking political reform. Failing to
address it only leaves a much more extreme choice, in which the only
alternative is advocating the overthrow of Latin American states’ legality
with little hope of achieving any better social arrangements.
To clarify, my claim is not that social-based argument is a panacea for
progressive reform. Like any legal technology, it has its limits and its
reversals. Still, as part of the conventional repertoire of democratic legal
systems, it opens a channel for alternative interpretations and positions
available under state law. As such, it is a significant part of a democratic,
123. Various commentators, as well as several references in this Essay, note the specific
Chilean experience from 1970 to 1973, under the socialist Salvador Allende government. It is
commonly accepted that Allende’s reform strategy of “revolution through law” consisted of legal
instrumentalism in relation to already existing laws. The maneuver was the design of a small circle,
not enjoying the support of most of the legal profession. To the extent that combining pragmatism
and state law is understood as exemplified (and exhausted) by the Allende experiment, it should be
noted that the actual form that it took in Chile is quite different from my own proposal here.
Allende’s legal loopholes strategy was generally perceived as an intentional misreading, or
exaggeration, of often outdated legal sources by a few close collaborators. My proposal here refers
to the inherent mulitiplicty comfortably available through legal interpretation and legal
decisionmaking, which includes reliance on social argument. It does not seek to defend a system
whereby ostensibly contrived meanings to laws-on-the-books are pushed through to justify state
action.
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or democratically-oriented, system of law. It is quite telling that traditional
Latin American jurists have, in numerous instances, rejected and
marginalized socially-based techniques. Possibly fearing class revolt, or
substantial renegotiation, their objective has been to narrow the discipline
of legal methods. Eliminating one of the sources of the regeneration of
legal systems and their ability to respond to popular forces is, in the end,
grave. The more limited the possibilities for addressing popular and
democratic demands, the more vulnerable and precarious are state legality
and the underlying political deal it preserves.
At a minimum, even if we understand socially-based legal decisionmaking to mean merely the discourse of democratic participation and
accountability, resisting it aggressively will surely backfire. Traditionalists
may believe that they have much to lose by allowing for social decisionmaking, and on a personal level this may very well be. The class of jurists
now exercising near exclusive ability to speak for the law would be unable
to retain their monopoly. Legal discourse, at a minimum, would be
democratized. Yet, from a conservative political perspective, social-based
reasoning may in the long run actually be more effective. It could reinforce
the authority of the legal class and foster more support for the political
bargains which may be reached. Of course, those political bargains would
have to be, at least discursively, struck differently. This may lead to some
tangible sought-after renegotiations in certain circumstances. And, at a
minimum, it would extend democratic considerations—to the extent this
expanded legal discourse can provide them—throughout more of the
institutions of the state.
By contrast, the shibboleth of law versus society, reinforced by
developmentalism and its demise, has erected a zero-sum game for
thinking about Latin American law. Its legacy makes available two
potential political stances, roughly speaking. Either one joins the project
of making the state more like the people, or one joins the project of making
the people more like the existing state. Regardless, the task remains under
the discipline of this framework to champion one identity over the other.
Conservative approaches to this problem describe the issue as one of the
penetration of state law into popular sectors. That is, the perceived gap
between law and society is to be addressed by redoubling efforts at social
transformation through the legal system.124 In the main, this is the
underlying blueprint for legal traditionalists in Latin America. The call for
124. See, e.g., Rosenn, supra note 32, at 543-49. Rosenn uses the notion of the Brazilian jeito
to capture, in his view, an extra-legal social device to circumvent an obsolete legal system. See id.
Yet, he does not argue in favor of rebuilding the legal system on the basis of the jeito. See id.
Instead, he advocates for legal penetration by the formal legal system “reasonably attuned to the
times and culture, a high degree of obedience to the rule of law, and impersonal, efficient
administration of the laws” which would make resort to the jeito unnecessary. Id. at 548-49.
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legal penetration reinforces the project of strengthening the official legal
system and re-making society in its image. From a progressive perspective,
this project is merely the perpetuation of control by legal elites and
enforcement of the traditional political deal. Legal penetration, in this
view, would not be neutral. It would not merely promote the harmonization
of a common national culture of legal coercion. Instead, the inherent
hierarchical tilt within state law would be more effectively imposed across
national society.
For more progressive commentators, highlighting the discrepancy
between law and society offers an indictment of the class-control and
cultural insularity of state law in Latin America.125 Interventions are thus
directed at offering substitutes. Progressive efforts highlight alternatives
to state legality, arguing they are better attuned to local, social activity. The
discrepancy between law and the social order is presented as a diagnosis
of the Latin American situation. The social order is offered as an
alternative to the formal legal system—although, as discussed in the case
of developmentalism, without much chance of success.
By accepting this duality, progressives are brought to heel. They eschew
direct engagement with state law because they reject its central project of
imposing the traditional political deal on society. They embrace social law
as pertaining to a sphere outside the formal legal system. Yet, the latter can
never be attained, or fully implemented, because it would come only at the
price of renouncing the special status of law. Traditionalists can sustain
this threat as long as progressives do not revisit the underlying duality
premise. By shunning “formal” yet social-based argument and
interpretation within national legal discourse, and not rebutting threats
about law’s politicization, progressives leave open the field of state law to
traditionalists. As such, they can only argue for reform from the sidelines.
Progressives have in this way miscalculated the potential for
intervention. By insisting on challenges from the sidelines, they have
implicitly accepted the ultimatum put to them. Accepting the premise of
social-legal dualism and its substantive difference reinforces the
traditionalist monopoly of national legal discourse. The latter remains as
the sole way of defending legal authority autonomous of the state. Like
everyone else, progressives fear undermining law as a separate source of
power. However, the room for progressive positions is self-selectedly
peripheral if traditionalists alone are left to speak for the (national) law –
no matter how much discredit is heaped from the margins in terms of class
125. See, e.g., Leopoldo Munera Ruiz, La justicia es p’a los de ruana, in SOCIOLOGÍA
JURÍDICA EN AMÉRICA LATINA 45 (1991) (discussing how the alternative uses of law strategy in
Colombia is based—in part as the result of a nine year reading group of social law scholars in
Bogota—on an essentially materialist view of the primacy of social relations in the determination
of law).
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bias, social disconnectedness, and the multiplicity of other normative
systems.
Furthermore, progressives have not appreciated the full workings of
legal discourse. Maintaining a monopoly over legal power requires
continuous reinforcement of dominant rhetorical constructions. Organized
interests within society—much as any good lawyer—deploy the full range
of legal argument, encompassing formalism, antiformalism, pragmatism,
necessitarianism, and almost any other legal technology. However,
accepting the identity of official Latin American law as distinct from social
life works in effect to stabilize, as long as such identity holds, the
monopoly of currently dominant interests. Vesting the legal system with
essentialist characteristics, accepted across the spectrum of legal politics,
leads to the perceived impermeability, and thus consequently-produced
impermeability, of traditionalist interpretations of law. In that order,
oppositional projects in legal politics come to be conceivable, exclusively
in contrasting identity terms.
VI. FROM THE SIDELINES
This Part focuses principally on the route taken by scholars of social
law within Latin America. As noted above, development scholarship
attributed the disconnection to a state law apparatus far removed from the
lives of local inhabitants. To the extent state law is brought into focus, it
is depicted as legal formalism, cut from a civilian mold, operated by legal
elites. In addition to the differences of class it designates, the existence of
a popular social law highlights the cultural, even racial, identification of
Latin America’s state law. Specifically, state law stands for Latin
American assimilation to the broader culture of the foreign law it emulates.
In consequence, it privileges European cultural forms over local practices.
In these terms, the agenda for political progressives appears to follow, as
a matter of course, to recuperate the cultural and social particularity of
governance norms among Latin American peoples. Ultimately, these would
then take the place of an exclusionary, entrenched legal culture reproduced
by and for elites.
My argument is that the reaction to law and development, and the
latter’s defeat, lead to, once again, a missed opportunity for reform. Rather
than introduce a more democratic and pluralist legal discourse, it merely
reinforced the power of traditionalist positions as the sole embodiment of
law and independent check on state action. The effort’s demise, actively
sought by Latin America’s legal intelligentsia, perversely provided another
occasion to link social-based legal argument with political maneuvering.
At the same time, it further cemented the framework of divergent social
and official normativities as the central paradigm. In this way, the demise
of law and development, along with other attempts to introduce reformist
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techniques within Latin American legal thinking, has contributed to the
current state of play and the range of positions and strategies deployed by
progressives within Latin America.
A. The Politics of Autochthonous Social Law
Local community norms may be no more progressive than state law.
Indeed, localized legality may harbor some quite troubling convictions
regarding minorities, punishment, and the vulnerable. While their study
may indeed offer a clearer picture of actual community sentiment, it is not
necessarily a treasure trove of progressive politics. Moreover, once
enshrined as organic law, local norms are less amenable to dynamic
reform. Indeed, attempts to champion the rights of women or minorities are
resisted by reference to long-standing community standards. And, in fact,
if community legality is precisely the source of law advanced by social
scholars, then it is its very particularity and deep-rooted nature that must
be respected. Intervention from the outside or even by reformist elements
of the local community would suffer a formidable presumption favoring
tradition—however it becomes defined.
The term legal pluralism, in the sense of different systems of legality,
is often used to describe this project.126 It invokes alternative normative
orders existing throughout society. Through this medium, community and
group norms may not only enjoy comparable standing to state law, they
may also offer a better description of internalized coercion within the
locality. This first presupposition of scholars of the social law is based on
the notion of an alternative legal code. It is a key notion as it informs the
diagnosis of a misalignment of law and society in Latin America. It offers
a non-racist yet often racialized explanation of the relative “irrelevance”
of official law perceived in Latin America. It is not that there is a social or
cultural deficiency in terms of abiding by legal obligations. Instead, the
126. See, e.g., Boaventura de Sousa Santos, Los paisajes de la justicia en las sociedades
contemporáneas, in EL CALEIDOSCOPIO DE LAS JUSTICIAS EN COLOMBIA 85-150 (Boaventura de
Sousa Santos & Mauricio García-Villegas eds., 2001) (noting “until recently the subject of legal
pluralism was centered on the identification of local legal orders, infra-state, that coexisted in
different ways with national official law”). Santos proposes a more complex notion of legal
pluralism that would encompass the hybridity and inter-legality of local and national as well as
global legal orders, “each one of these has its own normativity and legal rationality as a result of
which relations among them are many times tense and conflictive.” Id. While Santos proposes a
porous and hybrid conception, the central image is of multiple identities colliding or coming
together. See generally id. My analysis suggests that this approach repeats the pitfalls and dead-ends
of identity-based analysis, although it does address simplistic Manichean dualism. See also
Capeller, supra note 65, at 100 (stating “[i]n this way, legal research at a local level demonstrates
that pluralism and interlegality are key concepts for a post-modern conception of law”); see
generally Gabriel Ignacio Gómez, Justicia comunitaria en zonas urbanas, in EL CALEIDOSCOPIO
DE LAS JUSTICIAS EN COLOMBIA (1991).
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point is that Latin Americans, or at least some of them, march to the beat
of a different drummer. If only we could find the tune being played, the
legal system could be realigned with society’s previously formed legal
commitments.
Additionally, legal pluralism of this type has had a popular political
effect. It signifies respect for historically marginalized groups. Research
agendas on particular groups’ internal orderings offers the potential of
political empowerment. Armed with their own law, proponents may then
expect economic and other resources to follow close at hand. Promoting
norms coming from within the particular group offers a better chance for
legal compliance and more respect for enforcement efforts. Thus, not only
would a people’s law suggest more effective law enforcement, it would be
more democratic. Again, this broad category of thinking about law is
premised on the existence in Latin America of an alternative conception of
law. Thus, the task at hand appears as one of uncovering the content of
such alternative conception.
In terms of the actual content of any such social law, the scholarship is
varied.127 Of course, no coherent ready-made alternative to state law has
been revealed. It should be clear that most proponents of legal pluralism
and social law do not claim, which would be a large claim, an alternative
legal order of the same stature waiting in the wings to be uncovered and
implemented. Rather, in its most typical meaning, the notion of social law
boils down to two beliefs: (1) particular legal rules exist which are more
authentic (to particular groups) than state law, and (2) instances of dispute
resolution are available which are more attuned to the local culture than the
state. However, much of Latin American sociological jurisprudence is
bogged down in endless theorizing over the type of relationship existing
between law and society.128 Rummaging through a multiplicity of theories
and theorists occupies scholars rather removed, striving more for a
convincing blueprint of legal and social interconnectedness than those
attempting to operationalize an alternative justice.
In any case, there are, by way of support, sufficient development-era
studies confirming the informalism with which ordinary people conduct
their “legal” affairs. Informality, social norms, and the gap between law
and society all dovetail in reinforcing the same duality claim. Yet, we
would expect nothing different from ordinary citizens in any society. We
would not expect that they conduct their interpersonal interactions as
magistrates or advocates before a court of law. Nor would legal concepts
or legal categories be assimilated strictly or even understood as jurists
would understand them. The prevalence of an informal sector or an
127. See generally EL CALEIDOSCOPIO DE LAS JUSTICIAS EN COLOMBIA (Boaventura de Sousa
Santos & Mauricio García-Villegas eds., 2001).
128. See generally SOCIOLOGÍA JURÍDICA EN AMÉRICA LATINA (1991).
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informal version of state law is thus far from evidence of the separate
identity of social law. On the contrary, it is evidence of the commonality
of legal practices. Informal or disparate application is part and parcel of
any system of law and of any system of coercion, as discussed above.
Additionally, arguing for a particular option on the basis of its
immanence in society is not uncommon within any system of law, for
several centuries now. It is not, it should be noted, a legal device leading
to one type of interpretation. Differing views of a socially-based rule may
be advanced; in such case, the same technology can advance different
outcomes. Moreover, legal reasoning of this type also advances
conservative positions, positions which can reinforce the status quo on
social and political issues. This is not to say that norms or notions drawn
from particular social groups may not be a valuable intervention. On the
contrary, a main point of this Essay is to argue for the permeability and
openness of state law to these sources of law. For the sake of clarity,
however, advancing alternative, socially-inflected norms distinct from
traditional interpretations is quite different than claiming autochthonous
sites of norm generation which necessarily trump other positions. The latter
is nothing other than a decentralizing political project, riding on a
preference for more “local tradition-based” decisionmaking and the
reinforcement of group identities. More than pointing out the downsides
to this latter approach, my focus here is its impact on traditionalist
dominance of legal discourse.
B. Abandonment of Progressive, Counter-Dominant Law
The appeal of “informal law” is another of the legacies of the law-anddevelopment movement for progressive scholars. Rather than devote
energies to challenging traditionalist legal positions, numerous scholars
have focused instead on studying the particularities of social groups within
Latin American politics.129 Indeed, a significant portion of law and
development scholarship and its aftermath, focuses on the law of the
barrio, the law of the urban slum, the law of the armed forces, the law of
the guerrillas, the law of particular indigenous groups, and the law of any
plausibly identifiable social grouping.130
129. See DE SOUSA SANTOS, supra note 106; EL CALEIDOSCOPIO DE LAS JUSTICIAS EN
COLOMBIA (Boaventura de Sousa Santos & Mauricio García-Villegas eds., 2001); RAQUEL
YRIGOYEN FAJARDO, PAUTAS DE COORDINACIÓN ENTRE EL DERECHO INDÍGENA Y EL DERECHO
ESTATAL (1999).
130. See Gómez, supra note 126. Gómez’s work, for example, is an update on developmentera studies of urban barrios. See generally id. In it, he describes how recent attempts by the Ministry
of Justice to “informalize” (used to mean “decentralize”) local dispute resolution by regulating
“conciliation in equity” (community justice) programs have mostly failed. See generally id. He
describes the failure as one of trivializing the social. See id. at 269.
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By siphoning off progressives, the emphasis on social law has thinned
the ranks of counter-dominant legal discourse. While this claim is
impossible to quantify, it is clear that many progressive Latin American
legal thinkers adhere to sociological frameworks and empirical research
agendas. By contrast, many fields of official law are thoroughly dominated
by traditional, conservative scholars. Indeed, it is often difficult to find the
full range of legal and political positions, afforded by the ordinarily
available, multiple interpretations of legal materials. Often, a juristic
orthodoxy is capable of capturing and univocally interpreting entire fields
of law.131 Of course, in some cases this is assisted by the hierarchical
arrangement—also part of the legal profession—which prizes some
traditional academic voices over others. But, beyond this admittedly
uneven playing field, many times progressives have simply not articulated
the quite plausible, formal counter-arguments.132 They may disdain
engaging the official materials believing they lack legitimacy. As such, the
According to this perspective, the new state proposals of community justice are
limited to creating uniform models of regulation and control of “small” conflicts
according to which the reality of the social micro-stages and daily relations must
adapt, even at the expense of the group identity in which they emerge.
Id. Thus, even when the state takes an informal social approach, its performance is evaluated in the
context of a “more real” social identity conflicting with an intrinsically formal legal system
unwilling to share power with informal systems. See id.; see also Consuelo Acevedo et al., Justicia
comunitaria en zonas campesinas: Los casos de los municipios de Caparrapi y Arcaya en
Cundinamarca, in EL CALEIDOSCOPIO DE LAS JUSTICIAS EN COLOMBIA (Boaventura de Sousa Santos
& Mauricio García-Villegas eds., 2001).
131. See, e.g., Jorge L. Esquirol, Can International Law Help? An Analysis of the Colombian
Peace Process, 16 CONN. J. INT’L L. 23 (2000).
132. For example, Rodrigo Uprimny manifestly struggles to defend (in keeping with his
professed conviction in favor of legal pluralism) the recent Colombian legislation newly instituting
“justices of the peace” to administer community justice at the local level. Uprimny finds comfort
in the fact that justices of the peace may be able to function as the “hinge” between state law and
community norms, integrating the two. He leaves the job of constructing an “integrated” legal
discourse to the newest, most vulnerable, and least resourced legal professions—these newlyformed, mostly rurally-located legal officials. No doubt opening more judicial offices, decentralizing, and making dispute-resolution available are rather positive developments. However,
most studies of these state-sponsored community justice efforts (even in the same volume in which
Uprimny is published) note that they are grossly hamstrung by the formal logic of state law and are
much less effective (influential) than home-grown dispute-resolution structures. In short, the
democratic opening that justices of the peace (as well as other judges) may make use of cannot be
utopically projected as the result of de-centralization or procedural legal pluralism (and the physical
contact of judges with the social), rather it is a process of construction of a national legal discourse
in which progressives must take an active and engaged part. Contra Rodrigo Uprimny, Yepes
¿Justicia comunitaria en contextos violentos y antidemocráticos?, in EL CALEIDOSCOPIO DE LAS
JUSTICIAS EN COLOMBIA 309 (Boaventura de Sousa Santos & Mauricio García-Villegas eds., 2001).
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calculation is to invoke instead “extra-legal” arguments based directly on
political or social expediency.
The predominant effect has been the abandonment of state law by many
progressive scholars. Rather than direct their political
intervention—whether it be in terms of wealth redistribution or
enfranchising marginalized groups—faith has been placed in endorsing
alternative, sometimes highly local, notions of legality.133 Yet, in terms of
results, it has been noted already that no unproblematic or coherent
alternative emerges. Instead, the social field simply presents the project of
reconstructing a different legality, and the opening of a different playing
field not necessarily more progressive or just. By shifting energies to
constructing an ideally imagined social field, however, scholars have left
most other legal battles open to more conservative colleagues.134
Whatever one’s position is as to state law or law generally, the fact
remains that official legality is central to democratic governance.135 No
doubt, perceptions of law’s ineffectiveness and low levels of enforcement
undermine the appeal of engaging dominant legal discourse. Yet, to the
extent that these make engagement seem inconsequential or irrelevant, they
133. Interestingly, in response to the rhetorical question that Boaventura de Sousa Santos asks
himself as to why social practices should be thought of as separate systems of normativity, he
answers, “[p]ut in these terms, this question can only be answered by another question: Why not?
Why should the case of law be any different than religion, art or medicine?” See DE SOUSA SANTOS,
supra note 106, at 138. My analysis here ventures a response.
134. See generally Carlos María Cárcova, Teorías Jurídicas Alternativas, in SOCIOLOGÍA
JURÍDICA EN AMÉRICA LATINA, 25 (1991). In accord with the central proposition here, Cárcova puts
it this way:
The field of legal theory is abandoned: “Given that the traditional models do not
work to account for the relation law/society, (we should) migrate toward the more
productive terrains of sociology and (we should) do legal sociology.” With that,
the theoretical categories organized by the traditional thinking of jurists is
maintained undisturbed and the legal sociologists worry neither essentialists nor
positivists.
Id. at 30.
135. See Wanda de Lemos Capeller, Entre o ceticismo e a utopia: A sociologia juridica
Latino-americana frente ao debate europeo, in SOCIOLOGÍA JURÍDICA EN AMÉRICA LATINA 75
(1991). Capeller recognizes the centrality of state law, and cites Boaventura de Sousa Santos for
the same proposition. However, she attempts to explain the marginality of sociological
jurisprudence in Brazil as a structural phenomenon, using the center/periphery metaphor; as a
peripheral state, Brazil’s sociological jurisprudence is therefore “peripherical.” I think she takes the
metaphor too far. My own focus is much less to attempt a comparative description of the place and
role of sociological jurisprudence in Latin America versus Europe in broad structural terms. Rather,
my analysis here describes an historical attempt to use this technology as part of a specific political
project by a certain group of individuals. Only as a consequence, and by hypothesizing about other
such possible projects, a picture of the marginalization of sociological methods can be outlined.
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are deceptive. For in fact, legal argument is a significant medium of
political organization, with undeniable effects throughout the polity. Thus,
the question cannot be reduced to whether or not Latin Americans are
respectful of traffic rules or whether or not land registries are effective in
enforcing property rights. As in any legal system, there are discrepancies
between the letter of the law and how it is carried out. Possibly, even, in
countries with fewer resources those discrepancies are more evident.
However, in terms of allocations of political and economic power, state
law is a significant player even if its role at a particular point in time is to
divest itself of such authority. Clearly, this is not to say that its power is
equitably exercised or democratically executed. Quite the contrary, Latin
American legal authority over a number of areas has been captured by a
small number of personalities, typically quite circumspect about
redistributing power. Such figures are conservatives by definition, they
oppose undermining their own source of authority. Law thus continues to
be defended as univocal and impervious to alternative interpretation. In
this way, the societies’ respected legal experts are often in the position to
speak for the law, effectively unopposed. This aspect of the Latin
American legal profession, while not in any structural way preempting
progressive reform, does in fact make it more difficult.
My hypothesis, in this connection, is that the situation would be
different if Latin America’s scholars of the social turned more of their
attention to contestatory legal debate, especially at the national level.
Offering alternatives to official positions, captured by conservative
colleagues, would provide the opening of the legal system which is much
desired not on the basis of an alternative conception of a coherent legality,
much less in terms of a different cultural quality of law that must be
recuperated or integrated. Instead, an amplified legality—more democratic
and responsive to Latin America’s diverse populations—lies in challenging
orthodox views of Latin America’s jurists as to what the law requires.
C. Foreclosing the Potential for a More Pragmatic Legal Discourse
A separate by-product of social scholars’ forays into law in Latin
America is also negative. It bears repeating that this is not a comment as
to any necessary implication of a social approach. It does, however,
describe the way in which a social approach, in the aggregate, has operated
in Latin America and what remains as its lingering effects. To the point,
the hyper-social ideas reinforced by developmentalism have effectively
foreclosed the exercise of a progressively-inflected pragmatism within the
region. The particular history of law-and-development offers some insight
on this particular point.
A mainstay of this particular social approach to legal legitimacy
involved de-linking state law from purely formal concepts. In other words,
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to make room for alternative legality within the state, law-anddevelopment scholars found themselves in opposition to the traditional
operators of Latin American legal systems. In part descriptive, in part
evaluative, the operators of the traditional system were characterized as
formalists. While this latter concept has many meanings, the most
significant one for development scholars, however, was the rigidity of legal
interpretation. In an environment where one group or class controls, the
legal system is impervious to democratically responsive modes of
interpretation. In other words, the legal elite is thoroughly in control and
in the singular position to speak for the law.
Key to changing this state of affairs was the introduction of an
alternative mode of legal decisionmaking. The first target was the
univocality of legal interpretation. The push for reform in legal education
and broader access to courts, characteristic of law-and-development, was
tailored to meet this objective. However, as was alluded to earlier, the
political climate of the time made an apparently more fluid conception of
law a dangerous instrument. In the hands of reactionary politicians, legal
plasticity could just as easily sanction repressive measures as the more
humanist goals sought by developmentalism.
Once law and development scholars came around to see it this way,
many withdrew their efforts. The upshot was that alternative legality,
pluralism, and pragmatism became more firmly associated with particular
politics, either of the far right or the far left. Consequently, it came to be
seen that only in a progressive political environment could social or
pragmatic notions of law thrive. In a reactionary environment, legal
formalism—universal and univocal—was a better ally against arbitrary
action. While no doubt this was a plausible reading of the situation at the
time, it reaffirms the perception that alternative legal discourse is political
while traditionalism is not.
The fear of legitimating dictators surely cannot be discounted. Pushing
for a transition in legal discourse which has this effect is certainly not
appealing. However, desisting and furthermore characterizing the project
of legal pragmatism, within the context of law and development, as an
openly political calculation has left broader effects. It has reinforced the
connection between the pragmatic (or social) and the non-legal, either in
the form of state instrumentalism or, alternatively, cultural particularity.136
136. See, e.g., Acevedo et al., supra note 130. Presenting the still-current dualism, the authors
contrast state legal organs in rural communities with the more personal interactions of campesinos
with respect to conflict resolution (specifically, based on their perception of official justice as a last
resort and their idiosyncratic application of official norms). The latter is conceptualized as a
separate system, “la justicia de acá” in which “[i]t is the pragmatism of campesino rationality which
makes possible the incorporation within their culture of this know-how (i.e. more localized justice),
with concrete solutions deriving from knowledge of its causes and experience, applied by one of
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The line between law and politics is further embedded, with the law on the
side of only traditionalist interpretation.
This configuration describes the twin fears reinforcing objections to a
more open legal discourse in Latin America. Latin American jurists have
traditionally been preoccupied with defending state institutions from the
onslaught of unruly Latin American societies. Indeed, even sociallycommitted scholars have questioned the feasibility of liberal democratic
states in Latin America. Faced with illiberal societies, the worry thus arises
that states may fall prey to openly undemocratic forces. The rule of law has
thus been identified with a very particular mode of legal discourse. This is
not to say that the range of potential legal outcomes available under more
pragmatic approaches would be excluded under Latin America’s brand of
legal debate. As a discursive practice, it is not outcome-determinative per
se. However, this mode of discourse does distance legal authority from the
reach of local society and, clearly, legal progressives. In this way the
potential range of political volatility is to be narrowed. The objective of
Latin America’s legal elites is an above-politics/above-social source of
authority. Their mode of doing so is a well-patrolled discourse of singular
legal options.
In any case, some challenges have been waged against this
straightjacketting of Latin American legal reasoning. A case in point is the
law-and-development attempt outlined in this Essay. To repeat, its chief
means was to highlight the incongruity between social and legal orders.
Progressive heirs of this strategy have further attempted to erect a social
order that could rival traditional law. By reinforcing the conception of a
deep social sphere, however, social pluralists’ efforts have not gotten very
far. It has caused the further abandonment of progressive engagement with
the official legal system, leaving orthodox jurists freer reign. Moreover, its
promised rewards are always delayed until after the reconstruction of an
alternative social sphere. Rather minimal, its more immediate gains have
consisted of establishing exceptions to state law. As such, it has only
further undermined the routine and ordinary argumentative use of “social”
interpretation and argument throughout national legal discourse.
VII. SOME WAYS OUT OF THE DEVELOPMENTALIST BIND
This Part traces, in cursory fashion, part of the legacy of failed
developmentalism in the 1960s and 1970s. It catalogues the main strategies
and frameworks deployed by Latin American legal progressives today.
This is but a brief sampling of the very rich legal debate currently taking
place in many Latin American countries. Several of my examples draw
their own.” Id. at 284.
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from Colombian legal scholarship, which has especially experienced a
boom in recent years.
These works demonstrate a variety of reactions to the limitations of the
law and development paradigm. Faced with the dichotomy expressed by
developmentalism, these examples reveal attempts struggling with the
resultingly reinforced, dominant framework. They also offer some options
for reformism and progressive intervention within Latin American legal
discourse.
A. Unapologetic Formalists
Some progressive scholars have reclaimed the tradition of formalist
legal interpretation as their own. That is, championing a sort of legal
nationalism, formalism is conceived as the autochthonous mode of legal
interpretation in the region.137 This is a curious turn of the meanings earlier
ascribed to formalism and authenticity. Whereas formalism was perceived
as the concoction of elites, informalism signified the genuine law of the
people. More recent defenses of formalism attempt to turn this critique on
its head. Scholars of course are careful not to justify their defense of
formalism purely in terms of the authentic. Notions of authenticity have
been widely debunked already. Therefore, the claim is based in terms of
tradition or some such other. Formalism by extension is a significant part
of Latin American legal tradition. It need not be ejected, the argument
goes, in favor of some foreign vogue for pragmatist antiformalism.
This is a compelling argument. It rejects the false dualism of social law
and state law. It also adopts a sophisticated interpretation of authenticity.
Furthermore, it acknowledges the indeterminate nature of formalism. In
other words, progressive objectives need not require pragmatic legal
methods. Formal interpretation, while generally associated with
conservative legal decisionmaking, can serve quite well. Conversely,
pragmatism or realism is no more a guarantor of an enlightened social
order. This latter insight comprehends the fear experienced by
development scholars. As mentioned above, development scholars placed
much stock in pragmatism and the social as a way of democratizing Latin
American legal systems and promoting progressive political objectives.
They desisted when their methods proved equally amenable to promoting
conservative goals and further entrenching military dictators.
Defenders of formalism attempt to advance beyond the limitations of
developmentalists. They do so by claiming formalism as their own.
Additionally, this position also attempts to capitalize on the perceived
strengths of formalism. That is, it is more clearly defensible as a source of
137. See, e.g., Medina, supra note 38; see also IMER FLORES, INTEGRATED JURISPRUDENCE
(2001) (pre-publication text on file with author).
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authority beyond the reach of sheer political power. Making law
unreachable from the play of society and politics enhances its perception
of objectivity and neutrality. Jurists are thus in a stronger position to
interject the law as a limit on governmental power.
Some of the weaknessess with this approach have to do with the
relatively nontransparent and undemocratic way in which this technology
works. Discussion of this point is contained above in reference to
traditional modes of Latin American legal discourse. An additional
weakness is that it underestimates the effect of normalization of traditional
positions deploying the same type of technologies. Thus, while legal
devices may be instrumentalized for a variety of positions, certain positions
can become dominant through their continual repetition by the dominant
legal community. In other words, in any particular legal debate, formalist
arguments may be less convincing in the hands of progressives when a
“formalist” interpretation has already been authoritatively advanced by
traditionalists and accepted across the legal profession. As such, it may be
hard to beat them at their own game. In any case, the articulation of
alternatives using these same technologies is a valuable exercise, even if
such positions are not immediately likely to prevail. It challenges the
assumptions of necessitarianism and univocality associated with Latin
American law.
B. Sophisticated Dichotomists
Some scholars have continued in the tradition of critiquing the
discrepancy between formal state law and the workings of society. These
critiques are not merely a rehashing of the distinction articulated since at
least the times of Roscoe Pound. Such scholars attempt to bring new
insight to the dichotomy.138 New linguistic and cultural studies theories are
brought to bear on the subject.
For example, some scholarship taking the existence of the duality as
established analyze the reasons for its persistence. One very welldeveloped treatment of the topic pursued the symbolic power of law in
Latin America. Mauricio García Villegas’ La eficacia simbólica del
derecho draws on much contemporary deconstructivist theory to analyze
the role of law in Colombia.139 Analogizing much of law to the preamble
of many modern constitutions, the symbolic work performed is
highlighted. In a certain respect, scholarship of this nature clearly provides
a deeper analytic approach and genuinely wrestles with the question of
ineffective law enforcement. Assuming the diagnosis is correctly
identified, then, this work attempts to understand the appeal of the existing
138. See, e.g., HERNANDO DE SOTO, THE OTHER PATH (June Abbott trans., 1989).
139. See, e.g., MAURICIO GARCÍA-VILLEGAS, LA EFICACIA SIMBÓLICA DEL DERECHO (1993).
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situation; that is, the preference for symbolic as opposed to effective
enforcement.
Furthermore, this type of scholarship recognizes that the formal legal
system has a function. It may not be the function desired. Nonetheless, it
identifies the relevance or connection between state law and society at
large. In its most extreme rendition, the gap between law and society is
described in terms of an inorganic state law—quite unconnected to the
local citizenry. Symbolic power, for example, signals the ordering potential
of state law, even if such ordering depends on cognitive dissonance as its
basis.
Another excellent example, in line with neoliberal neodevelopmentalism, however, is the work of Hernando de Soto in Peru.140
In his much acclaimed, The Other Path, de Soto draws on the descriptive
dualism of formal and informal sectors in Peru.141 The formal sector, in his
view, consists of the legal system, official institutions, and traditional
social groups such as industry associations, labor unions, and pressure
groups.142 The informal sector consists of mostly peasant migrants to urban
areas operating in the shadow economy.143 For de Soto, it is not a
sociological or cultural difference which gives rise to the difference; rather,
it is the economic inefficiency of formal legal rules.144 In his words:
Let us take the invasion of state waste land as an example.
What explanation can we find for this phenomenon, if we view
it from a cultural or social standpoint? Is it an age-old
practice which reflects Peruvians’ partiality for getting
together and invading other people’s property? Of course
not . . . . From a legal standpoint, on the other hand, the
explanation is perfectly clear . . . . If the red tape were
reduced, there might still be people who would prefer to
invade land and risk all the adverse consequences, but they
would be a minority . . . . Although no one denies the relative
importance of social, cultural, or ethnic factors, we simply
have not found any evidence to bear out the theory that they
explain why a large sector of the population operates outside
the law.145
140.
141.
142.
143.
144.
145.
See, e.g., DE SOTO, supra note 138.
See id. at 80.
See generally id.
See generally id.
See id. at 185.
Id. at 185.
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De Soto’s thesis is that the legal system discriminates against
“informals”—as such they have no choice but to bypass official law.146 The
consequences of his view are that the formal legal system has lost social
relevance. Alternatively, formalizing the mix of motivation and incentives,
observable in the informal sector, would align the legal system with
economic growth.147 De Soto’s analysis retains the dichotomy between law
and society. He portrays it, however, as the product of economic
inefficiency rather than a different Latin American conception of the nature
of law.148 He bases his claims on empirical research of Peru’s extensive
bureaucratic costs related to industry, housing, and transport.149
It is hard to read de Soto’s work without drawing a parallel to illegal
aliens in the United States. These informals also constitute a substantial
population excluded from the official legal system, systematically
repressed and denied constitutional rights. Moreover, a case can be made
that all groups or individuals—and their identifying activities—may claim
the quality of “informals” when disfavored by official law. Adopting
economic efficiency analysis may improve their lot, then again it might
not. What de Soto proposes is, in effect, to renegotiate societal conflicts by
the lights of economic efficiency.150 If his proposal were adopted, and the
criterion of efficiency were paramount within legal decision-making, then
the winners and losers would indeed look different. In this way, his
proposal is much like the developmentalist one of a shift in legal methods
as a mode of triggering broad-scale reform. Unlike earlier
developmentalists, however, de Soto limits his method to the logic of
economic gain while developmentalists placed social justice and
redistribution of wealth at the top of their list.
This is not to say that this argument is a dead letter. Quite the contrary,
the argument that the duality, produced by the formal legal system, is
economically inefficient has had a receptive audience. Neoliberals have
146. See generally id.
147. Id. at 187.
It is simpler and cheaper to bring the formals and informals together by changing
the law than by trying to change the characteristics of the people. To show the
informals how the existing laws operate, or to try to convince them that they will
increase their social standing by accepting the mercantilist system inherited from
Spain, would be to alter their culture drastically. It makes more sense to adapt the
law to reality than to try to change everyone’s attitudes, for the law is the most
useful and deliberate instrument of change available to people.
Id.
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embraced the point as a reason for stronger property and contract rights, in
the place of current law, situated beyond the reach of shifting political
deals.151 They claim that legal rules premised on the logic of efficiency are
better suited to promote development than the current, formal system
riddled with bureaucratic costs. Whether or not this new attempt at
overhauling the traditional legal deal is actually successful remains to be
seen. Neoliberalism in any case has some very diverse supporters.
From a more progressive perspective, deeper analyses of the gap
between law and society run parallel to developmentalism and neodevelopmentalism. They offer once and again the argument for systemwide reform, but in the name of social justice rather than economic
efficiency. Surely, the distance between law on the books and law in action
is a plausible object of study. However, raising this question as the
essential problem with Latin American law, or as the best strategy for
progressive reform, is misguided.
The error stems from insisting on an already defeated 1960s strategy.
The notion is that effective social reform can be achieved through informal
law-led projects of social, economic, and political transformation. That is,
that elite power in Latin America, exercised through official law, can be
upset by a competing popular or social law. To the extent that reformminded progressive scholars continue in this belief, and thus continue to
call for informal law, they forego the potential for any actual effective
reform of the overall state. They in fact continue to reinforce the identity
of the gap and continue to cast their lot in the losing role.
C. Foreign-Modeled Realists
A new outcropping of legal scholarship has attempted to champion
legal pragmatism. Its basis of authority is a tried and true technique within
Latin American legal discourse. Foreign authorities are marshaled in
support of particular positions.152 In this version, various Latin American
151. Id. at 180. One passage is particularly illuminating:
It should be pointed out that the costs of informality also affect formals and
particularly increase the uncertainty of the costs of remaining formal, for there is
no property right, contract, or extracontractual liability which can be regarded as
constant when the state can use the legal system arbitrarily.
Id. While de Soto deploys the intellectual framework of developmentalism, i.e., social/legal duality,
his argument is not dependent on the differences between the formal and informal sectors
(essentially they are both inefficient save the informal sector is more inefficient) and is chiefly a
plea in favor of raising economic efficiency, in his reading co-terminous with strong property and
contract rights, as the guiding principle of legal reform over and above local political debate.
152. See Oscar Mejía, Cesar Rodríguez, and Isabel Cristina Jaramillo (articles on file with
author).
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scholars have been particularly attracted to U.S. academics, but also to
some Europeans, writing in the field of constitutional law, especially.153 I
will focus my discussion on the general profile of this vein of scholarship.
Curiously, even relatively conservative sources are marshaled as
authority for progressive positions in Latin America. Defenders of the
legitimacy and objectivity of the existing U.S. and common law systems
are often called upon to fulfill quite a radical role. Figures such as Ronald
Dworkin and John Rawls are cited to support notions such as the
multiplicity of textual interpretations and the legitimacy of social
considerations. In their home terrain, these scholars are understood as
defenders of the system’s built-in constraints on decisionmaking. Indeed,
they reinforce the legitimacy of legal decisionmaking, by reason of its
qualitative difference from political or other social influences.
The tactic becomes more understandable, however, in light of the
suppression of social argument within dominant Latin American legal
discourse, as discussed above. Instead of crafting an empiricallydemonstrable social sphere, foreign-modeled realists rely on traditional
jurists from other locales. In this way for example, a U.S. jurisprudence of
constraint in decision-making, which nevertheless recognizes the pliability
of interpretation and the primacy of policies and principles as tie-breakers,
offers Latin American progressives the room they need. Moreover, this
authority is claimed as deriving from within the legal system itself, that is,
as legal and not political. As such, legal operators pursuing this approach
are driven to engage the formal legal materials directly.
Some of the drawbacks of this strategy are parallel to its strengths.
Calling upon foreign authority is a well-known mode of legal argument
within Latin America. Therefore, proclaiming the genius and relevance of
particular foreign scholars is likely to be effective. Judging by recent
citations within constitutional decisions in some Latin American countries,
this strategy is already somewhat effective. However, it harbors the
dangers of ossifying a certain notion of the social, not as the dynamic
interplay of local societal interests and values, but rather, as some foreignbased determination which may only be accessed by reference to foreign
legal materials or foreign scholars. In other words, the effectiveness of
social argument may be limited by reading it as narrowly inherent in
foreign sources, and possibly as transnational law. In this way, social
decisionmaking can be undermined and rendered unresponsive to local
conditions, instead of merely allowing for arguments based on “social”
developments in countries with similar constitutions or other legal
materials. Of course, this is only conjecture. Then again, it is based on the
153. See, e.g., Sandra Morelli, Universidad Externado de Colombia (article on file with
author).
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uses made in the past of foreign authority within Latin American legal
discourse. Whether foreign-modeled realism may “bridge the gap between
law and society” remains to be seen.
Additionally, foreign-based realism harbors an additional pitfall. It
presents the dilemma of marshaling foreign traditionalists for the purpose
of local, reformist objectives. To the extent that foreign traditionalists
subscribe to sociolegal discourse, however, this is not really an issue. It
may pose particular questions for comparativists immersed in the legal
discourse of both the United States (or Europe) and Latin America.
However, the conservative pedigree of the foreign model can only stand to
reinforce the Latin American reformer’s position. The difficulty is that
these same authorities do not offer much beyond rhetorical uses of
sociolegal discourse. At some point, some of the very same critiques levied
against U.S. traditionalists, for example, would become relevant. In other
words, supporting foreign model realism may merely foist the limitations
of U.S. legal liberalism on Latin America. These limitations, as amply
demonstrated by critical scholars, are a serious concern.
However, the authority of the U.S. mainstream within contemporary
Latin American legal discourse, as discussed above, serves a very different
purpose. It provides expression for recurrently-repressed social-based
discourse within the formal legal system. Possibly at some point such
social-based discourse will be normalized in such a way that it may need
to be challenged. At this point in time, however, this reformist “liberal”
intervention can be quite a progressive move in certain fields.
VIII. CONCLUDING THOUGHTS
Developmentalist writing on Latin America has drawn some of the
enduring images that we continue to hold about law in the region. This
body of scholarship emphasized the looming disconnection between law
and the social particularities of Latin American peoples. Another legacy of
developmentalism is that its end in the mid-1970s is linked to the
propensity of social-based methods to politicize law. More than just any set
of images, this construction has had far-reaching effects. Specifically, it
has reinforced the opposition against social transformation through the
legal systems of Latin America.
By accepting the ultimatum posed by traditionalists in Latin America,
development scholars accepted their inability to challenge the existing
political deal. Cowed by fears of lawless societies out of control, absent a
well-maintained formal discourse of law’s above-politics authority,
developmentalists desisted. They accepted the traditional deal cut by Latin
American jurists over the potential loss of the authority of law.
Additionally, they inspired a generation of Latin Americans and Latin
Americanists to pursue marginally-situated projects of reform. Accepting
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the framework of a more legitimate social normativity, heirs to this
tradition remain busily crafting the bases for a substitute to state law. This,
however, will likely not come. By definition, it is relegated to the
dimension of society and minority politics—no matter how many empirical
studies and research projects are conducted.
By contrast, traditional jurists preserve official legal discourse against
projects that threaten reform or militate in favor of a reevaluation of the
traditional political deal. In part defending the political status quo, in part
defending their own quite singular authority to speak for the law,
traditional Latin American jurists have prevented the legal system from
responding to widespread social demands. As such, rather than defuse
political grievances, they aggravate them. The state as a whole becomes
open to challenge and the legal system subject to charges of irrelevance.
Perceived gaps between legal and social spheres and the relative
unavailability of reformist social-legal discourse within Latin America are
not, however, particularly useful descriptions of intrinsic features of the
system. Rather, they are observations about the political projects and actors
who have dominated legal discourse in the region. Making the mistake of
accepting these as truths about Latin American law undermines the
chances for reform and the strategies available to achieve it.
LEGAL CULTURES OF LATIN AMERICA AND THE
UNITED STATES: CONFLICT OR MERGER
Michael Wallace Gordon*
When I joined the U.F. law faculty thirty-three years ago to teach,
among other subjects, seminars on law and development in Latin America
and trade and investment in Latin America, I was told by Professor Bill
Macdonald that an anonymous donor made available a rather attractive
cash prize each year for a paper based on the theory of “how Latin
Americans would be better off if they would only adopt U.S. legal
institutions.” I had come to this institution largely because of my affection
for “things” Latin, and the reputation of its Center for Latin American
Studies. It seemed a little strange to me that we would want to impose
upon Latin American legal culture characteristics that had a very confined
origin—the “felt necessities of the times” arising from incidents of a battle
in 1066 on Senlac Hill just north of Hastings. I had taught Comparative
Law at the University of Connecticut for two years—the first such course
offered there. My students enrolled believing that comparative law would
mean comparing Connecticut law with Rhode Island law. France to them
meant Bordeaux, as in wine, and Germany meant war movies and helmets
worn by scruffy Americans who rode Harley-Davidsons. We struggled
through the terms with new concepts of puissance publique, usafruct and
delicts, preclusion and exequatur. But we soon found the materials
wanting—they dove headlong into substantive law with not a moment to
think about the legal culture of France or Germany. The Spanish legal
system was not ever referred to. After all—we were “ingleses” and had
won the battle of the Armada—and so much for Spain.
I am uncertain about how LatCrits think about the legal cultures of
Latin America and the United States, and what I might possibly add to this
collection of America’s preeminent group of LatCrits. Perhaps what might
be useful is to draw upon my thirty-five years of teaching law to note some
examples where the two cultures have come in conflict or have merged.
One might wish to know who “won,” or better, what survived, when they
came in conflict or merged. An example of the former is when new states
of this union in the 1800s were presented with an opportunity to choose the
legal system for the state—civil or common law. An example of the latter
is the more recent adoption of the North American Free Trade Agreement
(NAFTA),1 when choices had to be made about legal processes. Let me
* Chesterfield Smith Professor of Law, University of Florida, Levin College of Law, J.D.,
1963, University of Connecticut; M.A., 1968, Trinity College; B.S. 1957 University of Connecticut.
1. North American Free Trade Agreement Implementation Act, Pub. L. No. 103-182, 107
115
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begin with the former.
Much of the current United States was under the influence of Spanish
legal culture prior to the Treaty of Guadalupe in 1848.2 In 1850, the
California Senate published a report on civil and common law.3 The Bar
of San Francisco petitioned the committee on the judiciary, which
considered the future jurisprudence for the state as “the most grave and
serious duty which the present Legislature will be called upon to
perform.”4 The report considered various characteristics of the civil and
common law.5 The legal tradition of the area had been Spanish and, more
recently, Mexican civil law.
It did not take long for the committee to disclose its preferences and
prejudices. It stated that:
The Common Law is that system of jurisprudence which,
deducing its origin from the traditionary customs and simple
laws of the Saxons, becoming blended with many of the
customs and laws of the Normans, enriched with the valuable
portions of the Civil Law, modified and enlarged by
numerous Acts of the English Parliament, . . . has grown
up, . . . under the reformed religion and enlightened
philosophy and literature of England, and has come down to
us, amended and improved by American Legislation, and
adapted to the republican principles and energetic character of
the American people.6
This statement is incorrect—the common law did not absorb the valuable
portions of the civil law. The reception of Roman law on the continent did
not extend to England. The report also suggests that the Spanish and other
forms of the civil law were based on unenlightened philosophy and
literature, and a legal culture unimproved by legislation and attributable to
a less than energetic people.7
The report considered several differences between the two systems. Did
it do so fairly? Consider these comments:
The Civil Law regards husband and wife . . . disunited in
person, and with dissevered interests in property. It treats their
Stat. 2057 (1993).
2. Treaty of Peace, Friendship, Limits, and Settlement With the Republic of Mexico, July
4, 1848, U.S.-Mex. 9 Stat. 922, 1948 WL 6374.
3. Report on Civil and Common Law, 1 Cal. 588, 588 (1850).
4. Id.
5. See id.
6. Id. at 592.
7. Id. at 592-93.
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union in the light of a partnership, no more intimate or
confiding than an ordinary partnership in mercantile or
commercial business. Whereas, the Common Law deems the
bond which unites husband and wife, so close in its
connection, and so indissoluble in its nature, that they become
one in person, and for most purposes one in estate. . . . The
result is, that in no country has the female sex been more
highly respected and better provided for—nowhere has
woman enjoyed more perfect legal protection, or been more
elevated in society; and nowhere has the neptial [sic] vow
been more sacredly observed, or the nuptial tie less often
dissevered, than in the Common Law countries—England and
the United States.8
I am not a historian of the comparative role of women in Spanish and
English legal cultures, but I sense that these comments would not be fully
affirmed. If the nuptial tie is more often dissevered in civil law cultures,
there cannot be many married couples in Latin America.
The report next comments on the male and majority.
The Civil Law holds the age of majority in males, for most of
the ordinary purposes of life, at twenty-five years. . . . This
system retains man in a continued state of pupilage and
subordination from earliest infancy, until, in some cases, his
locks become hoary with age. But the Common Law absolves
the age of twenty-one from parental restraint, and clothes it
with the complete panoply of manhood. It bids the youth go
forth into the world, to act, to strive, to suffer—an equal with
his fellow man—to put forth his energies in the service of his
country, or in the eager strife for the acquisition of wealth or
the achievement of renown. Hence, under the latter system,
the activity, the impetuosity, the talents of early manhood,
stimulated by fresh aspirations of ambition, or love of gain,
are, at the earliest period, put under requisition and brought
into exercise, in developing the resources, and adding to the
wealth and glory of a State; whilst, under the former, they
stagnate for lack of sufficient inducement to action, and are to
a great degree lost.9
This is a marvel of overstatement, if not misstatement. The report goes on
to mention other “obvious” benefits from the common law.10 I end with
one I can relate to better from my experience with commerce.
8. Id. at 594.
9. Id.
10. Id. at 594-96.
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The Civil Law holds, under the doctrine of implied warranty,
that where one article eventually proves to be of different
material from, or of inferior quality to, that which the
purchaser intended to buy, and supposed he was buying, he
may require the vendor to refund the whole or a portion of the
consideration received . . . . On the other hand, the Common
Law more wisely says, that if B wished to guard against the
contingency of a possible defect, he should have made it a
part of the contract of sale, that A gives his express warranty
of the merchantable quality of the goods. Its doctrine is caveat
emptor; . . . the Civil Law looks upon man as incapable of
judging for himself . . . .11
Has not the commercial law of the common law system changed its
opinion about caveat emptor, and has not the civil law notion of implied
warranty become an essential feature of modern society, whether civil or
common law based?
I will not dwell upon this aged report longer, nor repeat its less than
generous specific comments about Mexico, which we must remember we
had just been at war with for invading its own territory. There were good
reasons for absorbing and preferring the common law in these
Southwestern states, but they did not usually include such uncertain
distinctions as related above. In reality, the Spanish legal culture was and
continued to be part of the legal culture of these states, in both substantive
law (e.g., real property) and procedural law (e.g., civil procedure). How
interesting might these states be today had the opportunity to truly merge
the best of two legal cultures been addressed.
It is that issue of merger which I would like to comment on with regard
to the adoption of NAFTA.12 The modesty of NAFTA, in contrast to the
European Union, has not presented many opportunities to debate and select
or merge legal concepts. Much of NAFTA is influenced by the earlier rules
established in the General Agreement on Tariffs and Trade (GATT) in
1947.13 But there are several dispute resolution mechanisms in NAFTA
where the legal cultures presented conflicts. For example, Chapter 19 was
created to establish a binational panel review of specific agency decisions
in each of the parties.14 The parties might have adopted a common standard
of review, but they instead preserved the standards of review of each
11. Id. at 595.
12. See supra note 1.
13. General Agreement on Tariffs and Trade, Jan. 1, 1948, T.I.A.S. No. 1,700.
14. United States-Canada Free-Trade Agreement Implementation Act of 1988, PL 100-449,
102 Stat. 1851 (1988).
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nation.15 Thus, in a case I will soon sit on with one other American and
three Mexicans to review the correctness of a dumping decision (involving
fertilizer exported from the United States to Mexico), our panel must apply
Mexican law and review the decision just as a Mexican tribunal would
do.16 This is in contrast to another NAFTA dispute panel I am currently
sitting on challenging not a Mexican agency decision, but a decision of the
United States Department of Commerce. Two Mexicans, two other
Americans, and I will determine whether the U.S. agency properly applied
U.S. law.
NAFTA could have adopted the United States standard of review for
all hearings, or that of Mexico or Canada. I think that the experience I am
having, as are other Americans and Mexicans, is valuable. We are looking
at the same concepts and sitting once to apply the standards of Mexican
law, and sitting another time to apply the standards of U.S. law. When the
Free Trade Agreement of the Americas (FTAA)17 is adopted, there will
very likely be a dumping dispute process. Will a single standard be
adopted? If so, there will be some rich experience to make a better
judgment than was made by the legislature in California a century and a
half ago.
Time prevents me from further comments on these areas, although
much could be said. I do not fully understand the LatCrit movement, but
I think that some of what it wishes to achieve is not unlike what I have
been talking about to my students for many years, such as the comments
earlier about the California report, which I have been using since I first
taught Comparative Law to my University of Connecticut students in the
fall of 1966. It has never made much sense to me to continue to do
something my way solely because it is my way, when my neighbor’s way
seems better. That is certainly appropriate when my neighbor is making
Paella and flan and I am having a hot dog and jello. It also seems true when
my neighbor’s legal culture has characteristics that seem more appropriate
than my own. Unfortunately not many of our students are touched by
comparative legal culture in the usual curriculum, but this old gringo may
be a little bit of a LatCrit, or maybe more a “CivCrit,” when he continues
to teach about amparo, courts of cassation, and prescripción and exequatur.
Thanks for including me—if only just for a day.
15. Id.
16. Dumping involves the sale of goods by a company, for example a U.S. fertilizer company,
for less in the exporting country (the United States) than in the importing country. Such sales are
said to be for Less Than Fair Value (LTFV).
17. See generally Free Trade Area of Americas (Proposed Official Draft 2001), available at
http://www.ftaa-alca.org/ftaadraft/eng/draft_e.doc. [Rule 12.8.5 for proposed draft].
STOP CULTURAL EXCLUSIONS (IN CHILE)!: REFLECTIONS ON
THE PRINCIPLE OF MULTICULTURALISM
Hugo Rojas*
I.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
II.
DESCRIPTION OF THE RESEARCH PROJECT
“MULTICULURALIDAD Y DERECHOS DE
LOS PUEBLOS INDÍGENAS EN CHILE
(PIMDPI-CHILE)” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
III.
DEFINITION AND ELEMENTS OF THE PRINCIPLE
OF MULTICULTURALISM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
A. Cultural Diversity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
B. Multicultural State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
C. Multicultural Citizenship . . . . . . . . . . . . . . . . . . . . . . . . . . 133
D. Territory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
E. Recognition of Cultural Human Rights . . . . . . . . . . . . . . . 137
F. Minimum Rights of the Principle of Multiculturalism . . . . 137
IV.
MINIMUM RIGHTS OF THE PRINCIPLE OF
MULTICULTURALISM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
A. The Right of Self-Determination . . . . . . . . . . . . . . . . . . . . 139
B. The Right of Cultural Identity . . . . . . . . . . . . . . . . . . . . . . 144
C. Special Rights of Representation . . . . . . . . . . . . . . . . . . . . 147
V.
CONCLUSIONS AND COMMENTS . . . . . . . . . . . . . . . . . . . . . . . . 148
VI.
FINAL COMMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
VII.
RESUMEN EN ESPAÑOL (SUMMARY IN SPANISH) . . . . . . . . . . . 152
In Chile, as in other regions, long-lasting cultural ghettos segregate
society. A cultural and economic minority enforces the social codes,
consumer habits, modes, values, and principles that the rest of the
population, implicitly or explicitly, must follow. The social thinking of this
minority (un)consciously embraces: (1) moral conservatism and
Catholicism, (2) neoliberalism, (3) urban separation between social classes,
(4) a strong political belief in order and authority, (5) a concept of nation
as a synonym for unity between equal mestizos—diminishing cultural
* Visiting Scholar at Duke University and University of North Carolina (2001).
121
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diversity inside its territory, (6) assimilationist public policies, and (7) the
control of the media, and, therefore, of public debate.
This Essay tries to explore new arguments to present the principle of
multiculturalism in legal academia. This legal-political principle is a key
feature in transforming the concept of the state in Chile because it is urgent
to improve the legal status of the indigenous peoples, gender minorities,
religious minorities, gypsies, immigrants, and other marginalized
identities.
The principle of multiculturalism is an essential legal-political principle
of the multicultural-state, and an orienting principle of law that: (1) values
the cultural diversity of every social group that inhabits a given territory;
(2) stimulates individual and collective freedom to maintain, favor, and
share the patrimony and their own cultural identity; (3) encourages intergroup participation, respect, and exchange; and (4) promotes the
development of the different collective identities from the moral and legal
arenas, favoring mutual comprehension and the resulting inter-cultural
creativity.1
I. INTRODUCTION
Considering the efforts of a part of the Chilean legal academia to open
a space for meaningful debate on multiculturalism, the following document
can be considered as a theoretical starting point for beginners and for those
who are engaging this topic for the very first time: a new proposal in the
conceptualization of the principle of multiculturalism.
I hope that this Essay is received as one more argumentative work
aimed at producing a final modification of the political system that
currently exists in Chile under the Political Constitution of 1980 imposed
by Pinochet’s dictatorship. More specifically, the essence of this proposal
is to collaborate in the urgent transformational process that is necessary to
overcome the old model of nation-state, and to establish the foundations
for a transition to a multicultural-state that, in my view, will be able to
guarantee human rights and to mediate tensions among the different
cultural groups and peoples that co-exist in the Chilean territory.
Part I presents an overview of the Proyecto de Investigación
Multiculturalidad y Derechos de los Pueblos Indígenas en Chile (PIMDPIChile). This Essay includes a brief description of the objectives of this
1. Two initial comments: (1) As the debate about multiculturalism is just starting in Chile,
the legal academia faces a tremendous challenge and a great opportunity to learn from comparative
experiences and theories without neglecting domestic realities and perspectives; (2) North American
scholars could easily disagree with the use that some concepts and constitutional guarantees receive
in these pages, mainly because legal reasoning is connected to personal meanings and views of the
world.
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project, its importance given the current structure of the Chilean legal
culture, its initial hypothesis, its alternative structure, and its methodology.
The second part of this Essay presents the definition of the principle of
multiculturalism as a superior and orienting criterion of the political-legal
system. Each of its main elements are presented and explained: (1) cultural
diversity, (2) multicultural state, (3) multicultural citizenship, (4) territory;
(5) cultural human rights, and (6) minimum or fundamental rights of the
principle of multiculturalism.
Third, the Essay presents the minimum rights of the principle of
multiculturalism: (1) the self-determination rights, (2) the cultural identity
rights, and (3) the special rights of cultural representation. It is important
to mention that the legal nature of these three minimum rights corresponds
to a category of collective rights which classical liberal tendencies are
unwilling to recognize.
Finally, this Essay presents the more significant ideas that can be
derived from the theoretical construction of the principle of
multiculturalism, including some final comments relating to Chilean legal
culture that warrant further study and contrast.
II. DESCRIPTION OF THE RESEARCH PROJECT “MULTICULTURALIDAD
Y DERECHOS DE LOS PUEBLOS INDÍGENAS EN
CHILE (PIMDPI-CHILE)”2
The PIMDPI-Chile is an attempt to answer two questions: (1) Is it
possible to reconcile legally, on the one hand, the existence and protection
of a project of national integration and, on the other, the recognition of the
different cultural identities that co-exist in Chile?; and (2) Is our legal
system prepared to mediate the growing and complex social
multiculturalism of a country that is situated in an ever more globalized
world order? Contrary to what I originally believed, my research has led
2. See generally HUGO ROJAS, EL P RINCIPIO DE LA MULTICUTURALIDAD UNA PROPUESTA
JURIDICA PARA PROMOVER Y PROTEGER NUESTRA DIVERSIDAD CULTURAL (2002). See also Hugo
Rojas, El Principio de la Multiculturalidad, in DOCUMENTOS CULTURALES 67-145 (Bárbara Negrón
ed. 2001); Hugo Rojas, El Principio de la Multiculturalidad Un aporte a la protección de los
derechos humanos culturales, in 18 ANUARIO DE FILOSOFÍA JURÍDICA Y SOCIAL 451-71 (Chile)
(2000).
Special thanks to: Arzobispado de Santiago, Corporación Nacional de Desarrollo Indígena,
Corporación Tiempo 2000, Duke University School of Law, Fundación de Documentación y
Archivo de la Vicaría de la Solidaridad, Latina/o Critical Legal Theory, Inc., Ministerio de
Educación, Facultad Latinoamericana de Ciencias Sociales—Chile, Pontificia Universidad Católica
de Chile, Sociedad Chilena de Filosofia Jurídica y Social, The Consortium in Latin American
Studies at the University of North Carolina at Chapel Hill and Duke University, The Ford
Foundation, Universidad Alberto Hurtado, Universidad Católica de Valparaíso, University of
Dayton, University of Florida Fredric G. Levin College of Law, and University of Miami Center
for Latin American and Caribbean Legal Studies.
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me to answer the two questions in the negative. Indeed, given the decades
of persistent cultural domination by sectors that support essentialist,
hispanic, assimilationist, and monoculturalist doctrines, it turns out to be
of the highest importance to counteract these tendencies by strengthening
the theoretical core of the multicultural paradigm.
The general objectives pursued in this research work are the following:
(1) to deal in a comprehensive way with the meaning, importance, content,
and legal establishment of the principle of multiculturalism, considering
that it is one of the central platforms on which every multicultural-state
should be based; (2) to specify and clarify some anthropological concepts
and definitions that are highly relevant, but insufficiently addressed in legal
dogmata; (3) to criticize the dominant and homogenizing cultural policies
that have prevailed in Chile in the two first centuries of its existence as an
independent nation-state;3 (4) to contribute with the dynamic nature of the
public law when suggesting the incorporation of a new principle that could
promote the development of interculturality and that recognizes for all
cultural groups and indigenous peoples the right of keeping and protecting
their own cultural identity;4 and (5) to make a comparative analysis that
3. The intellectual and symbolic construct nation-state is an association of domination of
the institutional type that inside a defined territory controls the monopoly of legal production and
legitimate force, regulates the monetary system, stimulates in public policies homogeneous and
integrated societies according to nationalism, and even more importantly, disguises exclusionary
cultural myths. We have to remember that in Latin America the nation-states seek social unity and
uniformity—denying the multiethnic character of societies—using assimilationist policies and
educational structures, without dissembling public efforts in the generation of nationalist collective
sentiments.
4. Principles of law can be defined as abstract and superior legal criteria that reproduce the
supreme cultural values that influence the law’s basis in a country, and that pretend to be accepted
by the citizens’ collective conscience. The main dynamic functions of general principles of law are:
(1) to control the power of bureaucratic authorities favoring human rights, (2) to inspire legislative
work and discussion, and (3) to support legal interpretations, especially in hard cases. An
interesting debate that has not been taken into account by the principles of law has to do with the
interrelation that occurs when the classical principles of liberty, equality, and solidarity get in touch
with the principle of multiculturalism. Those four principles do not necessarily oppose, but they
rather complement one another, and that was my statement during Segundo Encuentro Nacional de
Formación de Estudiantes de la Congregación de los Sagrados Corazones:
La incorporación del Principio de la Multiculturalidad como Principio General del
Derecho la realizo a partir de la Tesis de la Complementariedad entre los
principios de libertad, igualdad, solidaridad y multiculturalidad. Así como
sabemos que en el plano individual la libertad política no tiene sentido si no está
íntimamente ligada a la libertad jurídica, en un nivel colectivo las culturas que no
ven aseguradas sus libertades fundamentales (o que ven menoscabada su libertad)
están en justo derecho de hacer ver los desequilibrios normativos y exigir a las
autoridades la reparación del daño causado. Si todas las culturas son libres e
iguales en dignidad y derechos, y si en la práctica algunas son más libres e iguales
que otras, decretar la igualdad entre desiguales, sin establecer las condiciones que
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could show the level of recognition of multiculturalism in different legal
systems.5
The theoretical framework of the PIMDPI-Chile is divided in three
parts: (1) to review the bases of the Multicultural Model; (2) to emphasize
the importance of multiculturalism in modern times, focusing on the
nation-state’s crisis, the globalization/localization phenomena, and the
increase of migration; and (3) to analyze in comparative terms the
establishment of the Principle of Multiculturalism, for example, in Latin
American political constitutions, in North American legal systems, and
under public international law and humanitarian law.
As in all the intellectual proposals of this sort, this one in particular
seeks to deconstruct essentialist representations, combat social and cultural
injustice, and transform the legal discourse/structure of subordination/
oppression into an inclusive one by attending the multiple cultural
experiences in Chile. First, I wish to set Chile in the phenomenon of
compensen en parte las desventajas de hecho, a la larga lo único que logra es
profundizar tal desigualdad. De modo que libertad, igualdad y multiculturalidad
no se contraponen, sino que se articulan en la compleja misión de dotar a todas las
culturas de ciertos derechos básicos colectivos y comunes; pero el cumplimiento
de ello implica abrir espacios de debate y de diálogo intercultural en aras de una
cultura jurídica respetuosa de todas las representaciones culturales e igualar las
condiciones y los planos en los que han de darse tales interlocuciones. Por otro
lado, la relación en la que aún falta mucho por hacer es la que debería existir entre
el Principio de la Multiculturalidad y el Principio de la Solidaridad: en el evento
de tener que reconocer normativamente a la multiculturalidad en calidad de
principio, hay argumentos suficientes para sostener que su contenido y sus
elementos deben estar indicados en concomitancia con lo que se ha estado
avanzando respecto de la consagración jurídica del Principio de la Solidaridad.
Esta estrecha vinculación no sólo se origina en un ethos solidario ni en la
necesidad de armonizar los principios, sino también porque hemos visto que sólo
a partir del reconocimiento de la realidad del otro como hermano-prójimo y de la
comprensión sincera de los problemas que le son propios y no entendiéndolos
como ajenos, es factible superar etnocentrismos, nacionalismos, chilenismos,
esencialismos, etc. (presupuesto sine qua non para declarar que en Chile todos los
grupos culturales son libres e iguales en dignidad y derechos). De lo dicho con
anterioridad se colige que cualquier variación que se produzca en la consagración
normativa de los principios señalados altera para bien o para mal la trama jurídica
y, por ende, al Principio de la Multiculturalidad.
Hugo Rojas, Address at Segundo Encuentro Nacional de Formación de Estudiantes de la
Congregación de los Sagrados Corazones, Santiago (May 2001).
5. It is appropriate to recall that some Latin American political constitutions have valued
multiculturalism and have also acknowledged indigenous peoples’ civil rights. Unfortunately, at
that level, Chile is not one of those countries and it has forgotten the claims of more than a million
indigenous that live in its territory (at least 8% of the population). About international law, let me
say that I perceive some optimism on how recent international legal instruments are dealing with
indigenous peoples’ rights.
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worldwide globalization (latu sensu) in order to achieve a multicultural
citizenship—that is, one that is capable of maintaining and promoting
diversity among the different and many cultural identities that co-exist in
its territory. Second, the legal situation of indigenous peoples in Chile is
highly problematic, especially the conflicts arising from water shortages in
the North and the struggle for land and property rights in the South.
Nobody can be indifferent when facing the historical violation of human
rights of Latin American indigenous peoples, and in our particular case of
the aymara, mapuche, rapa nui, atacameños, quechua, colla, kawashkar
and yámana o yágan people. I agree with Rodolfo Stavenhagen when he
declares that the transgression of the human rights of indigenous peoples
does not only take place in material matters—that is, the well documented
dispossession and exploitation they have suffered—but also in the
systematic denial of the (limited) possibilities that would allow them to
preserve and develop their own cultures, including their languages,
customs, rules, organizations, beliefs, and different ways of social codes.6
In Chile, de facto and de jure conditions reflect this terrible historical
tendency. By absorbing all the indigenous cultures and minorities under an
exclusive cultural model and by trapping these groups in cultural ghettos,
the only thing dominant social and cultural forces have achieved has been,
to paraphrase Bernardo Subercaseaux, the mutilation of our
multiculturalism.7 This is why the so called conflicto mapuche cannot be
reduced to a private dispute over property rights in land, nor to a simple
matter of public disorder that warrants application of the full weight of the
law.
The investigative hypothesis has been: Incorporating the principle of
multiculturalism in Chilean constitutionalism can be a significant and
essential contribution for adapting or re-modeling the social system to
pressures emerging from globalization, the discourses and movements
promoting protection of cultural human rights, and new understandings of
the nation-state idea reflected in Latin American panindigenous discourses.
If these ideas are proven, it would follow that the “rules of the game” need
to be examined and reformed in order to promote respect for diversity,
diminish the climate of confrontation, secure greater autonomy for the
different cultural groups that co-exist in the Chilean territory and, finally,
declare legally and constitutionally the Chilean country as a state
composed of many different cultural expressions.
Methodologically speaking, the steps designed to accomplish the
proposed objectives are: (1) a comprehensive review of the Chilean press
6. RODOLFO STAVENHAGEN, DERECHO INDÍGENA Y DERECHOS HUMANOS EN AMÉRICA
LATINA 9 (1988).
7. See Bernardo Subercaseaux, Caminos interferidos: de lo político a lo cultural:
Reflexiones sobre la identidad nacional, 73 ESTUDIOS PÚBLICOS 159-64 (1999).
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over the last three years, focusing on the ethnic conflicts; (2) planning the
research work by identifying the legal problem, defining the general and
specific objectives, formulating the initial hypothesis, and designing a
program of work; (3) the bibliographic review of documents that have
addressed the topics of multiculturalism, ethnic conflicts, human rights,
indigenous rights, et cetera; (4) attendance and active participation in
seminars, conferences, and debates about the conflicto mapuche,
globalization, national reconciliation, the legal response to cultural
changes, et cetera (in Chile as well as abroad); (5) interviews carried out
by specialists on the topics of multiculturalism, indigenous law, and human
rights; (6) writing a first draft; (7) the task of processing all the comments
received;8 (8) the synthesis and reduction of the material in the final
document; and (9) the design and implementation of the action plan.
III. DEFINITION AND ELEMENTS OF THE PRINCIPLE OF
MULTICULTURALISM
As far as I know, the first time that the term multiculturalism was used
was in the Preliminary Report of the Royal Commission on Bilingualism
and Biculturalism (produced in Canada in the mid-1960s).9 Recently,
people have tried to define, operationalize, characterize, value, criticize,
question, or disparage the term. Before sitting down to read a document
about multiculturalism, it is worth investigating the personal aspects of the
author (verbigratia, the culture to which he or she belongs, the discipline
to which he or she is devoted, his or her home country, geographical place,
age, gender, political inclination, social class, religion, et cetera). To
highlight the controversial character of this matter, it would be enough to
pay attention to what Jon Stratton and Ien Ang state:
As a discourse, multiculturalism can broadly—and without,
for the moment, further specification—be understood as the
recognition of co-existence of a plurality of cultures within
the nation. Celebrated by some and rejected by others,
8. Comments and contributions made by Leslie Adams, Rodrigo Andreucci, José Aylwin,
José Bengoa, Francesca Bignami, Rafael Blanco, José María Bulnes, Michael Byers, Guillermo
Caballero, Thomas Clemens, Doriane Lambelet Coleman, Jerome Culp, Jorge Curilen, Fernando
de Laire, Nancy Ehrenreich, Arturo Escobar, Rolf Foerster, Edmundo Fuenzalida, Sergio
Fuenzalida, María Angélica Garrido, Paulina Gómez, Tibor Gutiérrez, Dadimos Haile, Jan Hoffman
French, Elizabeth Iams, Elizabeth Iglesias, William Mace, Jennifer D’Arcy Maher, Jeff Marder,
Jorge Montealegre, Bárbara Negrón, Sonia Olea, Alejandro Posadas, Maximiliano Prado, Vernellia
Randall, Nelson Reyes, Hugo E. Rojas, Roberto Rosenthal, Pablo Salvat, Lars Schoultz, Andrea
Seielstad, Agustín Squella, Carolina Stefoni, Francisco Valdés, Christian Viera, and Steven
Wilkinson, among others, improve the project. All errors are mine.
9. See David BENNETT, A PRELIMINARY REPORT OF THE ROYAL COMMISSION ON
BILINGUALISM (1965) (Can.).
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multiculturalism is controversial precisely because of its real
and perceived (in)compatibility with national unity . . . .
Viewed historically, multiculturalism could be understood as
the consequence of the failure of the modern project of the
nation-state, which emphasised unity and sameness—a trope
of identity—over difference and diversity.10
Quid sit. Multiculturalism consists in a group of different social
phenomena that are derived from the complex cohabitation or co-existence
of people that identify themselves with diverse cultures in the same
territory.11 To be more precise, multiculturalism is the situation in which
a great variety of cultural tendencies, world views, and explanations of
reality cohabit within a territory—none being strong enough to dominate
or eliminate the others.
The principle of multiculturalism can be understood as an orienting
principle of the political-legal code that: values the cultural diversity of
every social group that inhabits a given territory; stimulates individual and
collective freedom to maintain, favor, and share the patrimony and their
own cultural identity; encourages intergroup participation, respect, and
exchange; and promotes the development of the different collective
identities from the moral and legal arenas, favoring mutual comprehension
and the resulting intercultural creativity.
This principle is the search for the highest coherence between cultural
diversity/plurality and the unity of political integration.12 It can be
understood historically as a consequence of the failure of the
modernizing/homogenizing project known as the nation-state.13
10. Jon Stratton & Ien Ang, Multicultural Imagined Communities: Cultural Difference and
National Identity in the USA and Australia, in MULTICULTURAL STATES: RETHINKING DIFFERENCE
AND IDENTITY 135, 138 (David Bennett ed., 1998).
11. See ADELA CORTINA, CIUDADANOS DEL MUNDO: HACIA UNA TEORÍA DE LA CIUDADANÍA
178 (1997).
12. See generally Cynthia Hamilton, Multiculturalism as Political Strategy, in MAPPING
MULTICULTURALISM 167-77 (Avery Gordon & Christopher Newfield eds., 1997). See also Bennett,
supra note 9, at 89, 222.
13. There are many reasons to support the obsolescence and crisis of the nation-state, among
them you can find: (1) the existence of a clear detachment between our reality—plural,
multicultural, and multiethnic—and the historic emphasis that the nation-state has given to
homogenize society; (2) the growing economic, technological, military, cultural, political, and
social interdependence among the different world realities in relation to globalization; (3) the
consequent answer and understandable defense by the traditional and local identities, as it happens
in the Latin American re-ethnification processes, and the identities, acknowledgment, aspirations,
and claims coming from excluded groups or cultures; (4) the actions of human rights movements;
(5) the rapid and profound changes in the international system that occurred in the latter half of the
twentieth century; (6) the necessity of a minimum global ethic; and (7) the failure of nationalist,
ethnocentrist, evolutionist, and diffusionist theories.
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Multiculturalism is worthwhile, beneficial, interactive, and
interculturally positive if, and only if, we protect the cultural human rights
of all the actors and people involved, individually and collectively. When
a government adopts and promotes a multicultural policy—active or
interventionist—it explicitly accepts the legitimacy of cultural diversity. I
will back up this idea quoting a basic book written by Claire Renzetti and
Daniel Curran:
Multiculturalism emphasizes respect for and appreciation of
the cultural contributions, practices, and experiences of
diverse groups. Historically, in the United States, the cultural
achievements of many segments of the population . . . were
downplayed or ignored, while the achievements of other
groups, especially of the Anglo-Saxon heritage, were
elevated . . . . Critics of multiculturalism say it promotes
separatism and intergroup conflict by encouraging people to
identify with their “own kind” rather than with what members
of society share in common. To a large extent, however, this
criticism reflects a fundamental misunderstanding of
multiculturalism. The purpose of multiculturalism is not to
diminish the accomplishments of the English or Western
Europeans or to deny that our contemporary culture owes a
great deal to our Anglo-Saxon and Western European
heritage. Rather, multiculturalism simply emphasizes that
many groups have played a significant role in the cultural
development of the United States, and that the historical and
contemporary contributions of the many diverse cultural
groups that make up the United States today should be
recognized and appreciated. Supporters of multiculturalism
point out that the U.S. population is becoming more—not
less—diverse, and a multicultural perspective is therefore
increasingly necessary if the various subcultures are to forge
a life together based on cooperation and mutual respect.
Moreover, the rapid growth of international business and
politics and the development of advanced communications
technology mean culturally diverse societies have increased
contact and are becoming more interdependent. This, too,
should encourage us to adopt a multicultural perspective.14
It is important to strongly support the advantages of the multicultural
model because the violent circumstances that have characterized the
twentieth century have clearly shown that one of the most demanding
collective challenges is to learn to mediate the real or potential tensions
that occur when engaging cultural difference (verbigratia, radicalism and
14. CLAIRE RENZETTI & DANIEL CURRAN, LIVING SOCIOLOGY 72-73 (1998).
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unyielding bipolarities). The struggle for social inclusion is not possible if
it transgresses the acknowledged aspirations of the large number of cultural
groups that feel alienated, excluded, or denied. Let us not forget that when
trying to fight for equality or for the recognition and enforcement of their
rights, cultural “Others” often find themselves pushed into highlighting
their differences—their alteritas in relation to other cultural groups—and
on many occasions the emphasis on difference has been misunderstood or
has evolved into irreversible processes of fanaticism, fundamentalism,
and/or cultural ghettos.
The precaution just presented was, in some way, predicted in 1992 by
Diego Iturralde when he pointed out that the Latin American Nation-States
and the indigenous nations/peoples would face increasing tensions in their
relationships, adding that this process would make it necessary to develop
political and cultural methods for reorganizing society to create space for
diversity and real pluralism.15 Against this background, the voices
advocating multicultural public policies in our region are entirely justified.
An sit. The ultimate foundation of multiculturalism is, above all, of an
anthropological nature. Multiculturalism comes from every human being’s
originality and, due to our gregarious nature, it is reflected in every group
of individuals that unite and identify themselves culturally. As talking
about society entails different points of view and perceptions of reality, the
temporal authority must respectfully value and promote, as carefully as
possible, all cultures and should refrain from privileging any particular one
of them. But be careful. It is not unusual to find cultures that may be
unworthy of official respect because they have proven themselves to be
intolerant, exclusive, exploitative, cruel, and repressive. However, even
members of intolerant cultures must enjoy the freedom to express their
points of view, provided their acts do not infringe the human rights of
those who do not agree with them.
Living in a multicultural society is not easy. The ideal of democracy can
help to some extent as a result of its practical and political structures, but
it does not necessarily resolve the underlying problem.
I turn now to the aforementioned elements of the principle of
multiculturalism: (1) cultural diversity, (2) multicultural state, (3)
multicultural citizenship, (4) territory, (5) cultural human rights, and (6)
minimum or fundamental rights of the principle of multiculturalism.
A. Cultural Diversity
More than being simply one element of the principle of
multiculturalism, a commitment to cultural diversity is a natural and
15. See Diego Iturralde, Los Pueblos Indígenas y Sus Derechos en América Latina, 15
REVISTA IIDH 12 (Costa Rica) (1992).
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obvious imperative in creating a social reality in which a plurality of
cultures, totally or partially diverse, can co-exist. It is worth repeating an
idea formulated by Charles Taylor, “in the current situation all societies are
every day more multicultural and, at the same time, are every day more
subject to multinational migration.”16 The importance of this element is
addressed in a recent article by José Bengoa, in which he states succinctly
that a modern indigenous policy must assume: (a) the multiculturalism of
society as a principle; and (b) the acknowledgement of the different people
that make up multiethnic societies.17
B. Multicultural State
The multicultural state can be understood as a kind of state that
embraces the political advances achieved in and through the project of
modernity—including the effects of constitutionalism—and that,
moreover, incorporates the principle of multiculturalism as a pivotal and
constituent pillar. In the multicultural state, three kinds of rights are
integrally and systematically articulated: the subjective public rights
established in domestic law, human rights (from first, second, or third
category), and the different collective rights involved in the principle of
multiculturalism.18
In other words, in a state where the principle of multiculturalism rules,
constitutional rights embrace the universal rights of all individuals
regardless of race, ethnicity, religion, and gender, for example, as well as
a series of cultural rights belonging to minority groups. Thus,
MS = f (PM)
MS: Multicultural-State
PM: Principle of Multiculturalism
16. CHARLES TAYLOR, EL MULTICULTURALISMO Y “LA POLITICA DEL RECONOCIMIENTO”
(1993).
17. See JOSÉ BENGOA, Políticas públicas y comunidades mapuches: del indigenismo a la
autogestión, III 2 PERSPECTIVAS 331 (2000).
18. The transformation of the nation-state into a multicultural-state, besides the citizens’
approvals, requires: (1) total protection of civil rights and constitutional guarantees, (2) positive
actions that enforce international human rights in the implementation of public policies, (3) legal
recognition of individual and collective rights, (4) respect of democratic and truly representative
authorities/structures, and (5) a global ethic previously agreed by consensus in a social contract or
pactum by social/political actors.
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Any variation in the legal configuration of the principle of multiculturalism
reflects a variation in the concept of the multicultural state (that ends
ultimately in a variation in the cultural human rights framework applicable
to the different cultures that co-exist in a territory).
Will Kymlicka explains two cases in which we are in the presence of
a multicultural state: (1) if the members belong to different nations or
peoples; and (2) if the members have emigrated from different nations,
provided that this involves an important aspect of the personal identity and
the political life.19 Other authors include a third case: cultural groups,
social movements, and minority voluntary associations (although this
enlargement can lead us to a concept of multi-subculturalism). Without
trying to avoid or close the debate, it is important to record that
Multicultural States can also be made up by two or more nations
(multinational states) or by diverse ethnic groups (multiethnic states).
The pluralist state must create forums and spaces in which disputes can
be addressed and resolved in a climate of tolerance, where basic consensus
can be reached, and where respect for cultural diversity and the multiple
identities that are part of a country can be promoted. As UNESCO has
maintained, finding proper ways to reconcile a new plurality with a
common citizenship is an unavoidable obligation, and this objective cannot
be achieved simply by building a multicultural society.20 It requires also
that the state be multiculturally formed. By this, I mean a state that
recognizes plurality without diminishing its integrity.21 The Australian
example provides a good case in point:
Multiculturalism, as government policy, has provided a new
status for the state as the site where the overarching
ideological principles that legitimise and vindicate the
diversity of cultural practices in Australian territorial space
are formulated. The state provides an ideological context for
the production of the nation, but . . . the nation is not
conceived as a cultural expression of the universal ideological
principles represented by the state. Rather, the state acts as an
institutional container of principles which are instrumental to
the encouragement and management of cultural diversity . . . .
In 1989, the Australian federal government launched the
National Agenda for a Multicultural Australia. The very
phrase ‘multicultural Australia’ suggests that
‘multiculturality’ has now been enshrined as a recognised
19. See generally WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF
MINORITY RIGHTS (1996).
20. See generally UNESCO, NUESTRA DIVERSIDAD CREATIVA: INFORME DE LA COMISIÓN
MUNDIAL DE CULTURA Y DESARROLLO (1996).
21. See supra note 19.
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essence of Australian national identity, understood as an ideal
unity-in-diversity.22
C. Multicultural Citizenship
When we start talking about the development of a multicultural
citizenship, the premise is that the state and society facilitate the right of
citizenship as a set of abilities and civic competences for the participation
of a person or group in the global community to which he or she belongs.
Multicultural citizenship is different from other versions of citizenship
because the citizens/actors are willing in their daily lives to tolerate,
respect, and incorporate the different cultures of a political community, so
that no citizen is ever made to feel as a second or third class citizen.
Federico Vázquez has been researching the concept of multicultural
citizenship from an emancipationist model, that is to say, from the
perspective of the liberation and vindication of individual and collective
rights, and he defines it as:
[E]l espacio del reconocimiento del Otro, como portador de
una multiplicidad de sentidos sociales y culturales . . . . [A]sí
la diferencia se concibe de forma relacional dentro de un
marco de conflicto y de encuentro . . . . El acceso a la
ciudadanía cultural se da a través del reconocimiento de la
diversidad sociocultural en la esfera pública, movilizada
culturalmente, y donde es posible reivindicar derechos
colectivos (protecciones externas), sin el desmedro de la
libertad individual (restricciones internas).23
This model, inspired by the development of intercultural ethics, is the
absolute opposite of models underlying apartheid regimes (physical
separation of the different cultural groups) or the assimilation of minority
cultures, as happens in “melting pot” countries. In fact, in modern
22. Stratton & Ang, supra note 10, at 155-56.
23. FEDERICO VÁZQUEZ, UN CONCEPTO DE MUTACIÓN: AVENTURAS Y DESVENTURAS DE LA
CIUDADANÍA SOCIAL Y MULTICULTURAL EN AMÉRICA LATINA 209 (2000)
The space for the recognition of the Other, as a bearer of a wide variety of social
and cultural meanings . . . . So then the difference is conceived in a relational
perspective inside an area of conflict and encounter . . . . The access to the cultural
citizenship it is given through the acknowledgement of the social-cultural diversity
in the public sphere, culturally moved, and where it is possible to vindicate
collective rights (external protections), without diminishing the individual
freedom (internal restrictions).
See id. (author’s translation).
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democratic theory, the notion of citizenship entails a series of rights and
obligations that inform its meaning (status) and whose active exercise
(roles) is encouraged as much as possible in order to promote the inclusion
of discriminated or dispossessed social groups as members of the citizenry.
Elizabeth Jelin presents some examples of such opening reactions that
might help us to distinguish between collective status and collective roles
in a historical perspective:
[L]a lucha contra la ‘solución final’ del nazismo, el
movimiento de derechos civiles en los Estados Unidos en la
década de los sesenta, las luchas contra el Apartheid en Africa
del Sur en el presente, las reivindicaciones del feminismo de
acabar con todas las formas de discriminación de las mujeres,
los reclamos de ciudadanía de grupos étnicos minoritarios,
son las manifestaciones internacionalmente más visibles y
conocidas de estas luchas sociales por la inclusión, la
eliminación de privilegios y la igualdad.24
Interludio. In many situations, I have detected that some authors cast
United States citizenship as an example of a multicultural citizenship
model. The truth is that, after researching what happens in the United
States, I have concluded that at best it would be considered an example of
a stagnant multicultural citizenship.
We have to remember that the topic of multiculturalism has been
methodically studied in the United States since the seventies, and it has
been conceived as a possible alternative to the White supremacy that
historically has dominated and assimilated other cultures (e.g., NativeAmericans, African-Americans, Hispanic-Americans, Pacific IslandersAmericans, Asian-Americans, Biracial and Multiracial Americans, etc.).
That explains why Jamin Raskin stressed in The Eighth Annual Federalist
Society Lawyers Convention, Harvard Journal of Law and Public Policy
24. Elizabeth Jelin, ¿Cómo construir ciudadanía? Una Visión Desde ABAJO, 55 EUR. REV.
LATIN AM. & CARIBBEAN STUD. 21, 24 (1993).
The struggle against the Nazism final solution, the Civil Rights Movement in the
United States in the sixties, the fights against the apartheid in South Africa in the
present, the feminist vindications to end with all forms of discrimination against
women, the citizenship petition of minority ethnic groups, are the most visible and
known international signs of these social struggles for the inclusion, expressions
of the privilege elimination and equality.
See id. (author’s translation). When I use the expressions “collective status” and “collective roles,”
there is a peculiar connection to Ralph Linton’s anthropological theory in THE STUDY OF MAN 11331 (Prentice Hall, 1964).
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135
in 1996, the struggles and the complex gestation of the multicultural model
and the subsequent legal reforms:
The real glory of the American polity . . . is that we define
ourselves not by exclusion, but rather by the struggle against
exclusion, by the never-ending demand on the part of
oppressed groups for freedom, respect, and equal ability to
participate in society. These struggles for inclusion produced
the Thirteenth, Fourteenth, Fifteenth, and Nineteenth
Amendments. These gains were achieved at the price of much
blood and sacrifice . . . . The civilizing struggles of the 1960s
and 1970s, the civil rights movement, the women’s
movement, the gay and lesbian movement, and the youth
movement, have made this country a richer, freer, and more
democratic nation than it was thirty-five years ago. And yet,
our nation today is in the throes of a blacklash against
“multiculturalism,” the progressive and, to my mind,
inescapable cultural changes unleashed by the antiauthoritarian movement of the last several decades.25
In articulating the thesis of the U.S. multicultural stagnation, an
outsider like me would have to take into account at least some of the
following concerns: (1) the long-lasting assimilationist and integrationist
policies that are institutionalized in the heart of White supremacy have
neutralized, through a phenomenon called Americanization, the limited,
though real, possibilities for cultural negotiations; (2) the population’s
majority identification with the utilitarianism and individualistic line of
thinking has not even allowed the debate over the possibility of protecting
collective rights—in other words, individualism is one of the untouchable
dogmas on which the American legal net is built; (3) the ironic historicallegal-political distancing between the always protected right of religious
freedom and the cultural rights of the different social groups that live in the
territory; (4) the stress on federalism and the constitutional democracy as
the only supposedly favorable alternatives to assure cultural diversity; (5)
the insistence on limiting the public debate over multiculturalism to
linguistic or educative matters (probably because of the centripetal forces
of the concept of the American Nation); (6) the objective or the mission of
the U.S. public education continues to be, more or less, assimilationist and
ethnocentrist: form good citizens, English-speaking, who share a common
commitment to the Western values on which the nation is purportedly
founded, ready to defend patriotically the country’s interests (right or
wrong); and (7) the color blindness thesis in the public administration
25. Jamin B. Raskin, From “Colorblind” White Supremacy to American Multiculturalism,
19 HARV. J.L. & PUB. POL’Y 743, 744-45 (1996) (footnotes omitted).
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performances is hardly compatible with the practice of the affirmative
action thesis.
One of the interesting points debated in the United States was
emphasized by Tom Tyler in the 2000 Symposium Law, Democracy, and
Society:26 when we want to prevent the potential problems that might arise
in future relationships among diverse ethnicities, we have to consider that
the traditional assimilationist theory that all immigrants faced when they
arrived in the United States is no longer shared by all cultural groups:
However, not all members of minority groups are
interested [now] in assimilating. Instead, they argue for a
multicultural model, such as that found in Canada. Such
pressures have intensified, since many immigrants from Asian
societies and many immigrants from the Spanish-speaking
world have strong cultures that they resist abandoning. They
support a model of society that accommodates to the moral
and cultural values of diverse groups, recognizing their
validity and incorporating them into overall societal
values . . . . This potential change in American government
and social structure has provoked widespread concern about
the presumed destructive consequences of moving from a
society based on identification with a single set of
superordinate values and institutions to a society composed of
citizens with strong identifications with their ethnic and racial
subgroups—a multicultural or “mosaic” society. Concerns
about the transformation of America into a “preservative of
diverse alien identities,” that is, a society of “groups more or
less ineradicable in their ethnic character” have been
expressed by social commentators (Schlesinger, 1992).
Underlying these concerns is the question of whether
democratic institutions and values diminish among minorities
who place greater importance on their . . . affiliation with
their own ethnic subgroups than the larger society.27
The previous ideas presented lead me to predict that the social and legal
stagnation of American multicultural citizenship can only be overcome if
Americans start recognizing in their public policies that creating one
common political culture for all citizens does not require that the different
cultural groups assimilate to the ways and mores of the dominant culture,
a recognition that is per se quite risky to those who benefit from the
existing structure of cultural domination under White supremacy. If the
demographic and geopolitical reality of multiculturalism is a human
26. Tom R. Tyler, Multiculturalism and the Willingness of Citizens to Defer to Law and to
Legal Authorities, 25 LAW & SOC. INQUIRY 983 (2000).
27. Id. at 987-88.
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struggle for recognition, then a society can be considered multicultural only
if the social outsiders, silenced or dominated groups perceive themselves
as included in public spaces, and participate and are heard in the building
process of public policies, curricula, for example.
D. Territory
A territory is a physical space where people with different cultural
knowledge must cohabit and which is recognized as belonging to one or
more states. It is sometimes debated whether this territory must always be
physical or whether it can exist symbolically as well.
E. Recognition of Cultural Human Rights
According to Patrice Meyer-Bisch, in this category we must locate the
following rights: respect for the cultural identity, information, education,
formation, participation in cultural life, and access to patrimony, including
the common patrimony of humanity.28 Luis Polo mentions that cultural
rights refer to different aspects of the rights related to knowledge
transmission such as: (1) the right to participate in cultural activities, (2)
the right of information, and (3) the right of communication and the use of
the media. This last of the three is one of the more important rights for
disseminating the cultural expressions of different peoples and the
recognition of their cultural expressions.29
F. Minimum Rights of the Principle of Multiculturalism
The difficulties of introducing these rights in the Chilean Constitution
convinced me to dedicate a complete and final section to this issue.
IV. MINIMUM RIGHTS OF THE PRINCIPLE OF
MULTICULTURALISM
The principle of multiculturalism can remain confined in the Chilean
academic halls as a minority desire or aspiration, or it can be recognized,
implicitly or explicitly, by statutory law. Although the content of these
rights are applicable to all cultures (essential aspect) and vary from one
place to another (territorial aspect), there is enough literature and empirical
evidence to demonstrate that talking about multiculturalism, in different
Latin American countries, loses its meaning if the following minimum
rights are not recognized in introducing the principle of multiculturalism
28. Patrice Meyer-Bisch, De una sucesión de generaciones a un sistema de los derechos
humanos, XIV 1 REVISTA PERSONA Y SOCIEDAD 123-31 (Chile) (2000).
29. Luis Felipe Polo Gálvez, Prospectiva de los Derechos Humanos Desde el Punto de Vista
de los Derechos Culturales, XIV 1 REVISTA PERSONA Y SOCIEDAD 115 (Chile) (2000).
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into constitutional hierarchy: (1) the right of self-determination of
indigenous peoples, (2) the right of cultural identity, and (3) the right of
proper representation, according to cultural parameters.
These rights are clearly of a collective nature, because they are situated
in a different dimension from individual rights: a constellation of cultural
community that is aware of itself. The lack of certainty as well as the lack
of cultural and political referents about the future of the social order lead
me to conclude that we cannot be satisfied with a regime that focuses
exclusively on individual rights and the rights of participation and
decision. According to Stavenhagen, there are some situations in which
individual rights cannot be completely fulfilled if collective rights are not
recognized, or in another words:
[D]onde el pleno ejercicio de los derechos individuales pasa
necesariamente por el reconocimiento de los derechos
colectivos. Así lo entendieron de hecho los redactores de los
dos pactos internacionales de derechos humanos ya que el
artículo primero de ambos pactos es idéntico y reza así:
“Todos los pueblos tienen el derecho de libre determinación”.
....
La situación de las diversas minorías étnicas y de los pueblos
indígenas en el marco de los Estados nacionales o
multinacionales representa otra instancia en la que el pleno
ejercicio de los derechos individuales pasa por los derechos
colectivos. La ‘igualdad de derechos’ de los individuos no es
más que una ilusión si esta igualdad es negada por diversas
circunstancias a las colectividades a las que estos individuos
pertenecen. Y por el contrario, la igualdad de derechos de las
colectividades étnicas resulta entonces condición necesaria
(pero tal vez no suficiente) para el ejercicio de las libertades
y los derechos individuales.30
But, is it valid to talk about collective rights? What do liberals say
about it? Opinions vary on this question. In fact, it has caused prestigious
liberals to step back in the global forum when trying to answer whether
protecting individual rights (latu sensu) is sufficient or, on the contrary,
whether it is necessary to include communities as subjects of law. A
diverse group of thinkers, whose work cannot be regarded an alternative
30. Rodolfo Stavenhagen, Los Derechos Indígenas: Algunos Problemas Conceptuales, in
CONSTRUIR LA DEMOCRACIA: DERECHOS HUMANOS, CIUDADANÍA Y SOCIEDAD EN AMÉRICA LATINA
151, at 162-63 (Elizabeth Jelin & Eric Hershberg eds., 1996) [hereinafter CONSTRUR LA
DEMOCRACIA]. Compare Elizabeth M. Iglesias, International Law, Human Rights and LatCrit
Theory, 28 U. MIAMI INTER-AM. L. REV. 177, 207-13 (1997).
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to Liberalism, but only a criticism of some of its major flaws (e.g., Alasdair
MacIntyre, Michael Sandel, Charles Taylor, and Michael Walzer), favors
a state that is committed with the security that a society needs for its daily
working and development. Liberal versions after the publication of A
Theory of Justice31 sustained the concept of State neutrality in the face of
possible cultural perspectives, defining its function strictly in terms of
guaranteeing the exercise of individual rights. Some authors can be found
halfway between the positions explained. They do not accept the concept
of collective rights as an element of a liberal theory, but they urge the
importance of recognizing essential rights for the benefit of minority
groups so that they can carry on with their lives (e.g., Habermas,
Kymlicka).32
On the other hand, if we accept the human rights classification made by
Meyer-Bisch in: (a) civil and political rights; (b) social and economic
rights; (c) cultural rights; (d) structural rights (about the structural
regrouping when applying the principle of indivisibility); and (e) rights of
the people in vulnerable conditions;33 there cannot be the slightest doubt
that the three rights of the Principle of Multiculturalism are both collective
and cultural, though this does not mean they cannot be supported in a
complimentary manner by other categories of human rights (e.g., the right
to be free of racial, ethnic or gender-based discrimination).
A. The Right of Self-Determination
Although
the
right
of
self-determination
of
peoples/nations/communities is not the ultimate objective of this research,
it is nevertheless a crucial factor in understanding the principle of
multiculturalism. This is easily understood if we sociologically envision
the peoples’ self-determination rights as a process or complex net of legal
and political relations between one nation/people (or nations/peoples) and
one State in which they are situated, whose main objective is to facilitate
the attainment of certain levels of autonomy that consist of giving the
people/nation the means to keep their own identity without depending on
central authorities all the time.
Now, the self-determination right does not correspond to all minority
groups, but to peoples (including indigenous peoples) and to nations that
inhabit a historically recognized territory. It does not necessarily entail
31. JOHN RAWLS, A THEORY OF JUSTICE (1971).
32. This is not the moment to criticize the liberal doctrine of individual rights. An excellent
illustration has been given by Pablo Salvat, La Justicia entre Liberales y Comunitaristas (breve
esbozo y comentario en torno al Caso Pinochet), XIII 3 REVISTA PERSONA Y SOCIEDAD 165 (Chile)
(1999). See also Robert Justin Lipkin, Can Liberalism Justify Multiculturalism?, 45 BUFF. L. REV.
1 (1997).
33. Meyer-Bisch, supra note 28, at 130-31.
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secession or political independence. On the contrary, it is possible to reach
political agreements that would enable a people and nation to be part of a
sovereign state in return for the recognition of some autonomy in matters
of a political-cultural nature, thus allowing the specific group to dictate
their own rules on previously agreed subject matters.
The objective of the autonomy system is to permit determined groups,
with a common tradition and shared social-cultural characteristics, to
develop freely their ways of life and heritage, exercise their rights, and be
in charge of their own business. This is achieved through the establishment
of a special governance regime for certain member communities who
choose their own authorities from within the community and exercise the
jurisdictional authority legally accorded to them to decide internal
community affairs.34 Examples of this are Panama and Nicaragua, but it
could possibility be applied in other countries:
En Panamá existe una región indígena autónoma. En
Nicaragua se solucionó un difícil conflicto al firmar un
estatuto de autonomía con los pueblos indígenas de la Costa
Atlántica. En ninguno de estos casos autonomía implicó
secesión del Estado. De parecida manera, las autonomías
indígenas en México o en Perú, si se dan, tendrán que estar
pactadas con el gobierno federal y ser promulgadas en la
Constitución de la República y en las constituciones de cada
estado federal.35
Through the application of autonomy rights, indigenous peoples can
peacefully engage in activities that enable them to satisfy different
matters/subjects. For example, they can (1) set their own cultural
objectives, (2) choose their priorities and preferences, (3) define the rules
of inter-group behavior, (4) select the appropriate media, (5) determine the
contents of education (multilingual, bilingual or not bilingual), (6) solve
internal conflicts, (7) celebrate their own rituals and festivities without
interference, and (8) produce and reproduce internal laws.
Equality of the human rights and the self-determination of the peoples
are part of the group of human and fundamental rights whose recognition
is related to the human dignity of the peoples and the principle of liberty.
As there is a strong relationship between equality rights, basic human
rights, and the right of self-determination, it is clear that the right of selfdetermination is not only essential for the communities but it is one of the
most important rights of human rights theory.
34. HÉCTOR DÍAZ POLANCO, AUTONOMÍA REGIONAL: LA AUTODETERMINACIÓN DE LOS
PUEBLOS INDIOS 151 (1991).
35. LUIS VILLORO, ESTADO PLURAL, PLURALIDAD DE CULTURAS 95 (1998).
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It has often been stated that there is a contradiction between the rights
of peoples and individual rights. Authors like Stavenhagen and Villoro
openly disagree with this doctrine.36 In this vein, and in supporting a vision
of the correct and appropriate complementary nature of these rights, it has
been said that:
Si el derecho de los pueblos se considera un derecho humano
fundamental, en el mismo plano que los derechos individuales
[, entonces] no puede [ni debe] haber contradicción entre
ellos. Los derechos humanos básicos no fundan su legitimidad
en su promulgación por el Estado, se justifican en el
reconocimiento de necesidades y valores previos a la
constitución de cualquier asociación política. Si el “derecho
de los pueblos” ha de entenderse como un derecho humano
básico, tiene que fundarse en necesidades y valores supuestos
en cualquier asociación política y que no deriven de ella.37
As modern anthropological legal theories have warned, it is impossible
to realize individual rights without cultural collective rights. The difficult
aspect is to reach peaceful agreement in the elaboration of alternatives that
will reduce inter-ethnic tensions (internal and international). For this
reason, the plurality of national satisfaction increasingly has been valued,
especially if national harmony depends on recognizing the collective
interests of social-cultural communities. If, on the one hand, you want to
avoid the dangerous fragmentation of the states and, on the other, political
negotiation between the parties is paralyzed, it is not always easy to reach
this consensus, and the participation of an impartial third party has turned
out to be a necessary strategy of recourse (in a few cases this third party
has been the United Nations).38
Luis Villoro, who maintains that the indigenous problem can only be
solved by legally recognizing the peoples’ autonomy, is in favor of giving
self-determination rights only to those minority communities that exactly
fulfill the characteristics of “a people.”39 This self-determination can be
exercised in two ways by “a people”: (1) claiming for itself the right to
make final decisions about its future without accepting any higher legal
authority other than itself—in this case the exercise of the selfdetermination leads to a sovereignty statute (this, for example, is the
36. See Stavenhagen, supra note 30; Villoro, supra note 35.
37. VILLORO, supra note 35, at 88.
38. Remember that the Charter of the Organization of American States (OAS) proclaims that
all peoples are subjects of inter-American law and subjects of collective rights, such law and right
being the principal the self-determination. See Charter of the Organization of American States, Dec.
13, 1951, 119 U.N.T.S. 3 (as amended).
39. VILLORO, supra note 35.
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position taken by nation-states and some nations that aspire to the
sovereignty of statehood); and (2) agreeing to be part of a sovereign state,
with delimited faculties, competences, and fields in which the autonomy
rights could be exercised (this would be the case of indigenous
autonomous regions in countries like Canada, Panama, and Nicaragua).40
Stavenhagen calls this kind of self-determination internal (political and
economical organization ad intra of a people, without affecting the
external relations already stated).41 The assumption is the existence of a
superior pactum between the peoples and the sovereign state in which are
specified the conditions of the survival and maintenance of the identity
(e.g., ways of life protections and cultural reproduction in a territory),
development, and education of ethnic groups’ self-government in a
multicultural state, for example, the San Andrés Larraínzar Agreement
between Ejército Zapatista de Liberación Nacional and the Mexican
government. In sum, there are several options for effectuating the second
category of self-determination rights, such as federalism, relative or partial
independence, political and administrative decentralization, and others.
This issue is very complex, and several politicians have failed to satisfy
public opinion when trying to suggest alternatives that will promote
peaceful solutions for the resolution of inter-ethnic conflicts. At the same
time, the legal academy has been alert to the strategic manipulations
through which the doctrine of the right of self-determination of peoples has
been interpreted. For example, Elizabeth Iglesias has argued that the
demise of the interstate system of sovereign nations is a potentially
progressive development for the struggle against subordination, and maybe
Latin American scholars should explore the implications of her remarks in
connection with the Latina/o Critical Legal Theory Third Annual
Conference, Miami Beach:
Rather than investing further in a bankrupt system of nationstates, LatCrit theory might chart a new agenda to imagine
and articulate the kinds of institutional arrangements and
rights regimes that can promote the right of selfdetermination, both at the international and sub-national
levels where the neoliberal project is, even now, reconfiguring
and consolidating new regimes of freedom and compulsion.
At an international level, this agenda might take up the
pending project of promoting the full recognition of
individuals as subjects of international law, for example,
through the incorporation of international human rights into
the institutional structures, substantive norms, and decisional
40. Id. at 94.
41. Stavenhagen, supra note 30, at 168.
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procedures currently regulated by international economic law.
At a subnational level, this agenda might begin by rejecting
the neoliberal paradigm that confines democracy to the
political realm, and pursue the institutionalization of
democratic governance structures throughout the
inter/national economy as well. Both trajectories provide a
meaningful way out of “the stateness problem,” even as they
expand the parameters and meaning of democracy in ways
that more readily cohere with the anti-essentialist, antisubordination commitments that are the heart of the LatCrit
movement.42
If we assume a realistic point of view of the law, trying to be careful
with the meaning of social events, then we will have to reintroduce
Villoro’s argument directly in relation to the situation currently confronting
a majority of Latin American countries:
Los pueblos indígenas no han gozado de iguales
oportunidades para ejercer sus derechos ciudadanos. Aunque
se los declare iguales en derechos, en realidad no lo son.
Carecen de las mismas oportunidades que los demás para
decidir respecto de sus formas de vida, personales y sociales,
y ejercerlas siguiendo su propia cultura, sin interferencias
ajenas. La autonomía que reclaman es justamente la facultad
de realizar, con la libertad que les confiere su derecho de
ciudadanos, sus propias formas de vida. Para ello necesitan
que se estatuya ese derecho en la Constitución. Esa garantía
no estaría en oposición a los derechos iguales a todo
ciudadano, sino, por el contrario, sería la manera de garantizar
su ejercicio para los ciudadanos que no han tenido hasta ahora
la posibilidad real de disfrutarlos. La autonomía, lejos de
propugnar derechos opuestos a la igualdad ciudadana,
pretende garantizar su ejercicio efectivo para todos los
pueblos que componen la nación y no sólo para el
mayoritario. Para asegurar la igualdad, es necesario reconocer
42. Elizabeth Iglesias, Foreword: Identity, Democracy, Communicative Power,
Inter/National Labor Rights and the Evolution of LatCrit Theory and Community, 53 U. MIAMI L.
REV. 575, 646 (1999) (footnotes omitted). Following this line of thought and after reading some
of the LatCrit documents, I firmly believe that it is possible to put in contact the progressive sectors
of the Chilean Legal Culture with the pivotal objectives and main postulates of the LatCrit Theory.
It is probable that the potential encounters between them may require a lot of previous explanations
if there really is a strong desire to take advantage of each other. I suggest, as a very convenient step,
we spread the LatCrit Theory all over Latin America, break the ice in some (conservative) circles,
and stop the (human rights violations) amnesia in others.
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jurídicamente la autonomía allí donde se impide u obstaculiza
su ejercicio.43
B. The Right of Cultural Identity
The most conservative position in the Chilean jurisprudence conceives
cultural identity as a set of, more or less, fixed, essential and unchanging
features, that were made up in the distant past. Others, by contrast, view
the national identity as a mutable historical process that is constantly under
construction. One also hears skepticism concerning the idea of national
identity (e.g., post-modernist theories), suggesting the idea is vague or
without content and that it is used for either imaginative or discursive
purposes, or both but in the end has no scientific meaning. Nevertheless,
for Subercaseaux the richness of the debate that has been held in the last
years, at least in Chile, has not been in vain because “it points at the
deconstruction of the concept [of national identity], from the field of its
historicity and also from the post-modern cultural theory.”44
Leaving aside these interesting controversies, the preliminary results of
the PIMDPI-Chile has led me to ratify that the identity of a people is not
something inherited or given, but rather an image constructed and
projected at all times (past, present, and future). The destruction of a
peoples’ identity begins with the denial of its capacity to construct its own
self-image, the consequent lack of recognition with, and the cultural
expressions aborted or manipulated.
In his work, Estado Plural, Pluralidad de Culturas, Villoro explains
the essence of a peoples’ identity, confirming the different opinions
presented in connection to the vitality and humanity of cultural relativism:
Por identidad de un pueblo podemos entender lo que un sujeto
se representa cuando se reconoce o reconoce a otra persona
como miembro de ese pueblo. Se trata, pues, de una
representación intersubjetiva, compartida por una mayoría de
los miembros de un pueblo, que constituiría un “sí mismo”
colectivo.
El “sí mismo” colectivo no es una identidad metafísica, ni
siquiera metafórica. Es una realidad con la que se encuentran
sociólogos y antropólogos. Los individuos están inmersos en
una realidad social, su desarrollo personal no puede disociarse
del intercambio con ella, su personalidad se va forjando en su
participación en las creencias, actitudes, comportamientos de
43. VILLORO, supra note 35, at 102-03.
44. BERNARDO SUBERCASEAUX, CHILE O UNA LOCA HISTORIA 47 (1999) (emphasis added).
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145
los grupos a los que pertenece. Se puede hablar así de una
realidad intersubjetiva compartida por los individuos de una
misma colectividad. Está constituida por un sistema de
creencias, actitudes y comportamientos que le son
comunicados a cada miembro del grupo por su pertenencia a
él. Esa realidad colectiva no consiste, por ende, en un cuerpo,
ni en un sujeto de conciencia, sino en un modo de sentir,
comprender y actuar en el mundo y en formas de vida
compartidas, que se expresan en instituciones,
comportamientos regulados, artefactos, objetos artísticos,
saberes transmitidos; en suma, en lo que entendemos por una
“cultura”. El problema de la identidad de los pueblos remite
a su cultura.45
It is not enough to give autonomy to groups that do not share the values
nor the beliefs of the dominant national majority. It is necessary to
recognize the collective identity of the group through a combination of
factors that enable its cultural reproduction. Some of these factors include:
the validity of common law, an education that would answer the wishes of
the community, religious practices, linguistic expressions, family codes,
rules for social behavior, and physical spaces. The right to maintain a
cultural identity is not limited to the right to maintain peoples’ distinctive
cultural features, but rather to maintain its capacity for autonomous
decisions that influence the cultural meanings and heritage with which the
members of a culture can identify themselves. According to Jorge Larraín,
the more significant the role of collective identity in the self-construction
of personal identities, the more important become the symbolic meanings
and historical narratives through which individuals are called to construct
their identities.46
Does the right of cultural identity have limits? Of course, to begin, there
are basic rights of all members of society (constitutional and internationally
recognized or both), subjective or collective; in addition, the legislature has
neither the constitutional nor legal power to define the rules that either will
expand the scope of minority group autonomy or restrict the autonomy
rights of sub-cultures.47 Finally, in those difficult or complex cases, it is the
court’s responsibility to solve the conflict of interest between two or more
views of the world or cultures.
45. VILLORO, supra note 35, at 65-66.
46. Jorge Larraín, Elementos teóricos para el análisis de la identidad nacional frente a la
globalización, in ¿HAY PATRIA QUE DEFENDER? LA IDENTIDAD NACIONAL FRENTE A LA
GLOBALIZACIÓN 75 (2000).
47. See AMITAI ETZIONI, LA NUEVA REGLA DE ORO: COMUNIDAD Y MORALIDAD EN UNA
SOCIEDAD DEMOCRÁTICA 237 (1999).
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The ones that accept, negotiate, and implement the details of the
cultural rights of Latin American ethnic groups will have to be the states’
representatives and indigenous peoples’ representatives. But it is not
enough to identify the particular elements and give expression to them in
legislation. According to Enrique Mayer, it is fundamentally important to
go beyond the specific contents that can be included or excluded in the
declaration of these rights.48 It is also necessary—along with the
declaration of these rights—to create the mechanisms of implementation,
dispute resolution, and sanction.49
Two important breakthroughs in the comprehension of the right to a
cultural identity are first, Article 7, Convention 169, adopted at the General
Conference of the International Labor Organization in Geneva, 1989;50 and
second the design of the Canadian Multicultural policy in the Canadian
Charter of Rights and Freedoms and the Canadian Multiculturalism Act.51
48. Enrique Mayer, Reflexiones sobre los derechos individuales y colectivos: los derechos
étnicos, in CONSTRUIR LA DEMOCRACIA, supra note 30, at 171.
49. Id.
50. International Labor Convention (No. 169). Concerning Indigeneus and Tribal Peoples
in Independent Countries, June 27, 1989, art. 7, at http://iolex.ilo.ch.1567/cgi_lex/conude.pl?c169.
51. The Government of Canada: (a) recognizes and promotes the understanding that
multiculturalism reflects the cultural and racial diversity of Canadian society and acknowledges the
freedom of all members of Canadian society to preserve, enhance, and share their cultural heritage;
(b) recognizes and promotes the understanding that multiculturalism is a fundamental characteristic
of the Canadian heritage and identity and that it provides an invaluable resource in the shaping of
Canada’s future; (c) promotes the full and equitable participation of individuals and communities
of all origins in the continuing evolution and shaping of Canadian society and assist them in the
elimination of any barrier to such participation; (d) recognizes the existence of communities whose
members share a common origin and their historic contribution to Canadian society, and enhance
its development; (e) ensures that all individuals receive equal treatment and equal protection under
the law, while respecting and valuing their diversity; (f) encourages and assists the social, cultural,
economic, and political institutions of Canada to be both respectful and inclusive of Canada’s
multicultural character; (g) promotes the understanding and creativity that arise from the interaction
between individuals and communities of different origins; (h) fosters the recognition and
appreciation of the diverse cultures of Canadian society and promotes the reflection and the
evolving expressions of those cultures; (i) preserves and enhances the use of languages other than
English and French, while strengthening the status and use of the official languages of Canada; and
(j) advances multiculturalism throughout Canada in harmony with the national commitment to the
official languages of Canada. All Canadian federal institutions shall: (a) ensure that Canadians of
all origins have an equal opportunity to obtain employment and advancement in those institutions;
(b) promote policies, programs, and practices that enhance the ability of individuals and
communities of all origins to contribute to the continuing evolution of Canada; (c) promote policies,
programs, and practices that enhance the understanding of, and respect for, the diversity of the
members of Canadian society; (d) collect statistical data in order to enable the development of
policies, programs, and practices that are sensitive and responsive to the multicultural reality of
Canada; (e) make use, as appropriate, of the language skills and cultural understanding of
individuals of all origins; and (f) generally, carry on their activities in a manner that is sensitive and
responsive to the multicultural reality of Canada. See generally CAN. CONST. (Constitution Act,
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C. Special Rights of Representation
The election system is a set of rules or social-political relations that
structure the designation process of authorities based on the preferences
expressed by the citizens of a given political community.52 This process
per se is oriented to the designation of representatives in whom the voters
have entrusted the defense of their interests and the orientation on public
matters. Additionally, the process itself is a very important element in the
institutional architecture of modern states and the functioning of
representative democracies.
The election system in a democratic culture must be a framework where
all later results in the elections (sample) can be as representative as
possible of the total citizenry (population). Paraphrasing Josep Vallès and
Agustí Bosch, we have to consider the idea of representation-sample in the
sense that the group elected can be a representative selection of the voters,
or at least of some of their main characteristics,53 having a strong bearing
on the social legitimacy of democratic mechanisms.
If the design of the election is uninominal (first-past-the-post) or
binominal, we take the risk that the positions of minority groups would be
ignored and that it would affect their modus vivendi as the country in
general. If we have to take sides for one of these positions, it would be
recommended that the candidates’ elections could be connected with
proportional or distributive criteria. In this vein, there are several
representative dimensions of a group of voters, including (1) place of
residence, (2) political or ideological orientation, (3) gender, (4) social
class, (5) profession or activity, and (6) ethnic or cultural group.
The big difference between the positions that have adopted a first-pastthe-post system and the ones that recommend a distributive electoral
process design is the different value that they give to representation.
Proponents of the first approach reinforce the parliamentary positions of
the blocs or the merger of the biggest political parties, whereas proponents
of distributive formulas are those who recognize the need to achieve a fair
distribution of seats among all the participants.54 Empirical and
quantitative analysis of the election results in different countries using
1982) pt. I (Canadian Charter of Rights and Freedoms); Canadian Multiculturalism Act (1988). Cf.
J.W. BERRY & J.A. LAPONCE, ETHNICITY AND CULTURE IN CANADA (1994).
52. JOSEP VALLÈS & AGUSTÍ BOSCH, SISTEMAS ELECTORALES Y GOBIERNO REPRESENTATIVO
33 (1997).
53. See id. at 12.
54. See id. at 133.
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these different processes in the last fifty years reveal that the first-past-thepost and the binominal alternatives show bigger signs of disparity than the
distributive system.55 Even experts have mentioned a standard deviation
higher than two hundred percent (200%) from the one that used the
distributive or proportional approach.56 From a historic point of view, the
proportional system has been used as a result of the achievements of
minority group movements tired of the postponements and their
marginalization in elections that do not allow them to elect representatives
under systems of a uninominal disposition.
To solve the problems of underprivileged groups in known election
processes, Kymlicka has tried to demonstrate that the rights of selfdetermination that could guarantee the correct representation of those
groups appeal ultimately to the very basis of a representative democracy.57
The consecration of these rights would be neither undemocratic nor liberal,
but it would be:
una ampliación plausible de nuestras tradiciones democráticas
existentes y en determinadas circunstancias es la mejor
manera de asegurar que las minorías puedan expresar
adecuadamente sus intereses y sus aspiraciones. Habida
cuenta de que resulta vital que las minorías dispongan de
procedimientos justos para que se escuche su voz en el
proceso político, parece obvio que las propuestas orientadas
a lograr la representación de grupo les proporcionan tales
procedimientos.58
Diminishing the systematic exclusion of minority groups in the
electoral processes during the (unfinished) Transition stage to democracy
in Chile requires the complete transformation of the election system that
currently is in use. It is significant to add that the designated senators
(senadores designados) and life member senators (senadores vitalicios)
increase the rates of deviation, undermine the legitimacy of the political
system, and distort the concept of democracy. Indeed, the high indexes of
deviation in Chile invite efforts to make a high level qualitative turn and
establish a temporary system of quotas for the representation of minority
groups (defined in the widest sense) for as long as necessary to remedy the
lack of minority representation.
V. CONCLUSIONS AND COMMENTS
55. See generally ARENO LIJPHARD, ELECTORAL SYSTEMS AND PARTY SYSTEMS: A STUDY
1945-90 (1994).
56. Id.
57. See KYMLICKA, supra note 19, at 207.
58. Id.
OF TWENTY-SEVEN DEMOCRACIES
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Our journey has tried to elaborate the structural and theoretical bases
of a new legal-political principle of a higher order that allow or contribute
to the process, within the democratic system, the challenges, risks, and
benefits that will carry out cultural diversity in a context of growing
globalization. The detailed study of the principle of multiculturalism is
timely because there are voices of worry and skepticism considering the
event of having to reconcile national identity (if there is one) with the
different cultural expressions that co-exist in a territory.
If multiculturalism consists of a group of social phenomena that comes
from the complex co-existence of people that identify themselves with
different cultures living in a same territory, then we can understand the
principle of multiculturalism to be an essential legal-political principle of
the multicultural state—an orienting principle of law that: (1) values the
cultural diversity of every social group that inhabits a given territory; (2)
stimulates individual and collective freedom to maintain, favor, and share
the patrimony and the group’s own cultural identity; (3) encourages intergroup participation, respect, and exchange; and (4) promotes the
development of the different collective identities from the moral and legal
arenas, favoring mutual comprehension and the resulting inter-cultural
creativity.
When we incorporate the principle of multiculturalism at a
constitutional level, we are contributing in part to: (1) better attention to
cultural human rights; (2) a modern citizenship with informed and tolerant
citizens, who are able to participate in the market’s opportunities and to
participate in all public spaces; (3) the possibility of improving pacific
systems for conflict resolution, starting with the implementation of
multicultural educational projects; (4) the modernization in which social,
economic, and cultural inclusion are pursued; (5) the end of the negationexclusion dialectics of the Other by the elites; and (6) positively assuming
within our region the trans- and inter-cultural fabric of our condition.
When I mentioned each element of the principle of multiculturalism, I
paid special attention to the meaning of: (A) cultural diversity, (B)
multicultural-state, (C) multicultural citizenship, (D) territory, (E)
recognition of cultural human rights, and (F) recognition of the minimum
or fundamental rights of the principle of multiculturalism.
In relation to the minimum rights of the Principle of Multiculturalism,
the peoples’ rights of self-determination that are recognized in
international law need not be understood as a right to political separation,
but rather as a complex net of legal-political relations between a certain
people and the state authorities. Its objective is to ensure the right of
peoples to the necessary level of autonomy that would guarantee the
support of their own cultural identity, the establishment of priorities by the
community’s internal decision-making processes, and the management of
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collective matters by themselves. However, the right to maintain a cultural
identity is not limited to the right to maintain peoples’ distinctive cultural
features, but rather to maintain its capacity for autonomous decisions
(something risky, contingent, doubly contingent, and diachronic).59 If we
are talking about special rights of cultural representation, I do not disagree
with the idea of temporary quotas to ensure representation in the political
institutions, but I would suggest the distributive-proportional election
system as a good remedy to the high deviations that the uninominal and
binominal systems produce. In all other respects, it is our duty that all
cultures have access to fair procedures that allow them to take meaningful
part in the political process.
You may have noticed that in this research work, several criticisms
have been brought against: (1) the nation-state; (2) the strong roots of the
dominant and exclusive legal discourse; (3) the genocidal, assimilationist,
or integrationist theories, whose effects are still part of some rules and
legal doctrine sectors; and (4) the legal delay in the protection of minority
groups’ and indigenous peoples’ rights in Chile. The purpose of these
criticisms have been none other than to find the legal-political arguments
to support the validity and the advisability of: (1) proposing to the country
the incorporation of the principle of multiculturalism in our constitution;
(2) promoting cultural human rights and cultural diversity through the
construction of a multicultural state in Chile; (3) the contributions that
global minimum ethics have been producing in these kinds of subject
matters;60 (4) our theory of the complementary relationship among the
principles of liberty, equality, solidarity, and multiculturalism; (5) the
thesis that the principle of multiculturalism is in harmony with
international law, its potential consecration in formal sources, and the
importance of recent debates about indigenous peoples in the international
community; and (6) the processes of ethno-genesis related to the American
pan-indigenous discourses.
VI. FINAL COMMENTS
Chileans have the fortune of living together and sharing in the bowels
of a plural society that is not only multicultural, but also, multiethnic.
Although we can agree at a discursive level with this statement, boasting
of this or simply saying it is not enough. The background and the
implications of this statement are honestly immeasurable. When it refers
59. See generally NIKLAS LUHMANN SOCIEDAD Y SISTEMA: LA AMBICIÓN DE LA TEORÍA
(1997); NIKLAS LUHMANN, SISTEMAS SOCIALES: LINEAMIENTOS PARA UNA TEORÍA GENERAL
(1991).
60. See Adela Cortina, Multiculturalismo y Universalismo, XIV 1 REVISTA PERSONA Y
SOCIEDAD 133 (Chile) (2000).
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to the legal system’s actors, it comes to be an essential part in the
conscious understanding of the legal evolution that we have had in the
republican past. It is unacceptable to deny the following declaration: our
statutory law has not been able either to avoid or to diminish the huge
cultural isolation, nor to alleviate the serious structural imbalances.
There is a lot to do to stop the legal structures of domination in Chile.
First, scholars (and the media) should concentrate their work against the
historical euro-centric, anti-indigenous, and anti-Latina/o discourse.
Second, scholars should try to explore and find out more alternatives to
reduce political tensions between civil society, the government, and the
military, so courts and judges can maintain independence in their mission
of finding the truth about human rights violations during Pinochet’s
dictatorship. Third, scholars must build an inclusive legal framework that
overcomes the inflexible-traditional-essentialist one that is centered on
concepts as Nation-State, Chilenidad, patriotism, etc.
There is no doubt that, for different reasons, such as the ethnocentrism
and the patriotism or passionate nationalism, Chileans have not taken
advantage of all the magnificence and shine of the wealth of the
community or communities or union of social unions that live in the
Chilean territory. Even more, there persists in an important sector of
citizenry, especially in the dominant elites, a legal debt to the native
peoples that fight: (a) to be socially and constitutionally recognized; (b) to
recover a big part of their ancient territories; and (c) to have a better level
of political autonomy with the purpose of reproducing their cultures and
maintaining their traditions and heritages.
The importance of legally recognizing our cultural plurality through the
incorporation of this new principle (the one that tends to alter, in a crucial
way, the spirit and the organic structure of existing public law) is not only
justified for reasons of the preventive order. In fact, given the likely
eventuality of consecutive turmoil and inter-cultural conflicts, a system
essentially democratic, multicultural, participative, inclusive, and
representative is the best means for processing the interests of the ones
involved in a context of respect of human rights (and also to pacify
fundamentalism). But a second argument comes up with force: considering
the new challenges that emerge from the world or the globalization
phenomena–for example the rapid rhythms of migratory population
movements (permanent, seasonal, or temporary), the force of the media,
international investments, and stock market transactions—all make me
believe that, as days go by, our society has to be alert to the complex ups
and downs in this upward direction to multiculturalism, happening with
different intensities, but that reaches all the world.
If we want to live together, we will have to incorporate changes in the
political system, because if we leave unchanged the current pseudodemocratic structures that offer little participation, our future inevitably
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will be unstable (or not too encouraging). I hope that the solidarity ethos
is a top priority when trying to guarantee cultural diversity, plurality of
interests, opinions, and values through a participative construction of the
multicultural state (until now the only one capable of enabling the
existence of the different cultural identities and, if internally agreed on by
the members of these cultural groups, the only one capable of contacting
these cultural groups to establish mutual recognition).
Even though we have awoken to a multicultural country, this
multiculturalism remains mutilated in the legal and social areas. As our
current legal code is not prepared to process efficiently the growing and
irreversible social multiculturalism, it is of the highest importance to
debate the proposals directed to assume the compatibility among the
unitarian political project and the multiple projects that come from the
different cultures. One of those prospective proposals that, I am convinced,
will favor the recognition (and tolerant and reciprocal understanding) of
the different cultures of Chilean society, is the one that I have presented
under the name of the principle of multiculturalism.
VII. RESUMEN EN ESPAÑOL (SUMMARY IN SPANISH)
No quisiera desaprovechar la oportunidad que Florida Law Review me
ha dado, al publicar estas reflexiones sobre el Principio de la
Multiculturalidad, para agradecer la hospitalidad de la Escuela de Derecho
de la Universidad de Florida y para felicitar al Comité Organizador de la
Sexta Conferencia Anual de LatCrit (Gainesville, abril de 2001). Además,
me parece del todo apropiado resumir algunas de las ideas que han sido
planteadas en este artículo para facilitar o motivar investigaciones
similares de académicos de habla hispana.61
Es común apreciar dentro de la historiografía conservadora y
esencialista un cierto culto hacia el mito de la Chilenidad, como queriendo
destacar que la gran mayoría de los habitantes de la República serían
mestizos, hispano parlantes, monógamos, heterosexuales, católicos,
sedentarios, occidentales. Sin embargo, la realidad es distinta y las
minorías han demostrado ser mucho menos flexibles de lo que
superficialmente se piensa o contempla: por una parte sabemos que existe
un porcentaje importante de inmigrantes provenientes de las más diversas
61. No haber incorporado esta sección al final del ensayo hubiera sido una clara señal de
contradicción con lo que he estado sosteniendo. El multiculturalismo no sólo puede ser visto desde
la perspectiva macro-sociológica, sino también en nuestros quehaceres y cotidianeidad, incluyendo
nuestras actividades laborales y académicas. Es cierto que el inglés se ha estado transformando en
un idioma globalizado que permite a las personas de diferentes culturas utilizarlo como un mínimo
denominador comunicacional, pero si se escribe pensando en las dificultades de las latinas y los
latinos, anhelando mayores índices de justicia social, lo que a todas luces corresponde es fortalecer
y mantener el bilingüismo en las revistas especializadas.
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153
latitudes, también estamos ciertos que más de un millón de personas se
identifica con alguno de los pueblos indígenas y que se están generando
procesos de etnogénesis, no olvidemos el nomadismo del pueblo gitano,
tampoco que las estadísticas muestran cómo en las últimas décadas ha ido
descendiendo el porcentaje de católicos en la población y, en contrapartida,
ha aumentado el número de fieles de otros credos religiosos.
Destinar esfuerzos para demostrar algo tan notorio como nuestra
diversidad cultural no sólo sería algo inoficioso sino reiterativo, pues
diversas encuestas e investigaciones ya lo han logrado con notable éxito y
rigurosidad científica. Por el contrario, el aporte verdadero que se puede
realizar desde la academia es ofrecer los marcos teóricos que puedan
utilizar los actores sociales y políticos para lograr que el sistema político
sea más inclusivo y menos excluyente. Por eso he intentado explicar los
nódulos teóricos del Estado-Multicultural de una manera diferente a lo que
a la fecha ocurre en las aulas, esto es, identificando a lo que en puridad
denomino Principio de la Multiculturalidad. En otras palabras, y tal como
fuera señalado en la primera parte de la Introducción, en apoyo de los
incipientes esfuerzos que se pueden detectar en parte de la doctrina chilena
por abrir un debate profundo sobre multiculturalidad, en este documento
se sugiere un punto de partida teórico y que puede ser útil tanto para
iniciados como para quienes se acercan por vez primera al tema: una
propuesta diferente de conceptualización del novísimo principio de la
multiculturalidad.
En la primera parte del documento se ofrece una visión panorámica del
Proyecto de Investigación Multiculturalidad y Derechos de los Pueblos
Indígenas en Chile (PIMDPI-Chile). Se mencionan sumariamente sus
objetivos, las sospechas que justifican su importancia (o al menos que
debieran llamar la atención de la cultura jurídica chilena), la hipótesis
inicial, la estructura y la metodología. A continuación se da a conocer la
definición del PM, en cuanto principio superior y orientador del sistema
jurídico-político, y se presta atención a cada uno de sus elementos
principales: (1) diversidad cultural; (2) Estado-Multicultural; (3)
ciudadanía multicultural; (4) territorio; (5) derechos humanos culturales;
y (6) derechos mínimos o fundamentales del Principio de la
Multiculturalidad: (A) el derecho a la libre determinación de los pueblos;
(B) el derecho a la identidad cultural; y (C) los derechos especiales de
representación. Por último, como corresponde a todo trabajo de esta
naturaleza, se transcriben las Conclusiones más importantes sobre la
construcción teórica del PM y se formulan algunos comentarios finales que
requieren posteriores estudios y contrastes.
En apretada síntesis, el recorrido efectuado ha pretendido acotar en
parte las bases estructurales y normativas de un nuevo principio jurídicopolítico de rango superior que permite o contribuye a procesar al interior
del sistema democrático los desafíos, riesgos y beneficios que conlleva la
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diversidad cultural y la heterogeneidad social, en un contexto ascendente
de globalización. El estudio pormenorizado del Principio de la
Multiculturalidad es oportuno puesto que suenan voces de inquietud e
incredulidad ante la eventualidad de tener que compatibilizar toda la
temática de la identidad nacional (si es que la hay) con las diversas
expresiones culturales que coexisten dentro del territorio.
Si la multiculturalidad consiste en un conjunto variado de fenómenos
sociales que derivan de la convivencia y/o coexistencia compleja de
personas que se identifican con culturas diversas en un mismo territorio;
es factible entender al Principio de la Multiculturalidad, en cuanto
principio jurídico-político esencial del Estado-Multicultural, como aquel
valor orientador que: (1°) valora la diversidad cultural de cada uno de los
componentes de la sociedad; (2°) promueve la libertad individual y
colectiva para mantener y compartir los múltiples patrimonios e
identidades culturales propios; (3°) fomenta la participación, el respeto y
el intercambio intergrupal; y (4°) promociona el desarrollo de las distintas
identidades colectivas desde los ámbitos moral y jurídico, favoreciendo la
comprensión mutua y la creatividad resultante.
Al pretender consagrar el Principio de la Multiculturalidad en el nivel
constitucional se está contribuyendo en parte a: (1) una mejor atención de
los derechos humanos culturales, (2) una ciudadanía moderna dotada de
ciudadanos informados y tolerantes capaces de intervenir en las
oportunidades de los mercados y de participar en todos los espacios
públicos, (3) la posibilidad de mejorar los sistemas pacíficos resolutorios
de conflictos, partiendo por la implementación de proyectos pedagógicos
multiculturales, (4) una modernización en la que se persigue la inclusión
social, económica y cultural, (5) la terminación de la dialéctica de la
negación-exclusión del otro por parte de las élites, y (6) asumir
positivamente en la región nuestra condición de tejido trans e intercultural.
En cuanto a los derechos mínimos del Principio de la Multiculturalidad,
la autonomía de los pueblos reconocida en el derecho internacional no
debe interpretarse como un derecho a la separación política sino más bien
como una compleja red de relaciones jurídico-políticas entre un pueblo
determinado y la autoridad estatal, cuyo objetivo es alcanzar ciertos
márgenes o niveles de libertad que aseguren la mantención de la propia
identidad cultural, la fijación de las prioridades de la colectividad y el
manejo de los asuntos colectivos por sí mismos. Por otro lado, el derecho
a la mantención de la identidad cultural no conduce a la preservación de
los rasgos distintivos, sino al mantenimiento irrestricto y sin
cuestionamientos de capacidad autónoma de decisión y de cambio desde
la retroalimentación de los integrantes de una cultura, produciendo en los
individuos los significados e historias con las cuales se puedan identificar
(lo que puede cambiar contingente y diacrónicamente). Si de los derechos
especiales de representación se trata, los sistemas de cuotas y los sistemas
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155
electorales proporcionales son buenos paliativos a las altísimas
desviaciones de los modelos mayoritaristas. Por lo demás, es un deber que
todas las culturas dispongan de procedimientos justos para que se escuche
sus voces en el proceso político.
Se podrá haber apreciado que en este documento se han esbozado
críticas contra: (1) el Estado-Nación; (2) las hercúleas raíces del paradigma
jurídico monocultural; (3) las teorías genocidas, asimilacionistas o
integracionistas, cuyos resabios aún permanecen en algunas normas y
sectores doctrinarios; (4) el atraso jurídico en la protección de los derechos
de las minorías y de los pueblos indígenas en Chile. El sentido de tales
detracciones no ha sido otro que buscar los argumentos jurídico-políticos
para sostener la validez y la conveniencia de: (1) proponer al país la
introducción del Principio de la Multiculturalidad en nuestro ordenamiento
constitucional; (2) promover los derechos humanos culturales y la
diversidad cultural por medio de la construcción del Estado-Multicultural
en Chile; (3) los aportes que la ética universal de mínimos ha estado
haciendo en este tipo de materias; (4) nuestra teoría de la
complementariedad entre los principios de libertad, igualdad, solidaridad
y multiculturalidad; (5) la tesis que el Principio de la Multiculturalidad está
en armonía con el derecho internacional, su potencial consagración en las
fuentes formales y la trascendencia de los últimos debates en Naciones
Unidas sobre los derechos de los pueblos indígenas; y (6) los procesos de
etnogénesis vinculados con los discursos panindigenistas americanos.62
Por último, los chilenos tenemos la dicha de convivir y compartir en el
seno de una sociedad plural, que no sólo es multicultural sino que, además,
es multiétnica. El trasfondo y las implicancias a las que conduce tal
afirmación son francamente inconmensurables, y en lo que respecta a los
actores del sistema jurídico, resulta una pieza esencial en la comprensión
conciente de la evolución normativa que hemos tenido en el pasado
republicano, pues resulta inaceptable todo intento que anhele reprimir la
siguiente autocrítica: nuestro derecho positivo no ha sido capaz a lo largo
de los siglos XIX y XX de disminuir (y menos de evitar) las grandes
exclusiones culturales ni los serios desequilibrios estructurales que acusan
quienes se han sentido discriminados en este orden de materias, incluso a
veces la soberbia del legislador ha llevado a actitudes de indiferencia frente
a las aspiraciones de las minorías, lo que puede resultar mucho más
doloroso de lo que se piensa en la construcción dialógica de las
autoimágenes e identidades grupales. Qué duda cabe, por razones de
diversa categoría, tales como el etnocentrismo y el patriotismo o
nacionalismo pasional, los chilenos no hemos aprovechado en todo su
62. RODOLFO STAVENHAGEN, DERECHO INDÍGENA Y DERECHOS HUMANOS EN AMÉRICA
LATINA (Mexico) (1988).
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esplendor y brillo la riqueza de los crisoles y mosaicos que aglutinan la
comunidad de comunidades (o unión de uniones sociales) que habita el
territorio chileno. Es más, persiste en un sector importante de la
ciudadanía, sobre todo en las élites dominantes, una deuda jurídica
pendiente con los pueblos originarios que luchan por: (a) ser reconocidos
social y constitucionalmente; (b) recuperar gran parte de sus tierras
ancestrales; y (c) gozar mayores grados de autonomía política con la
finalidad de reproducir sus culturas y resguardar sus tradiciones. A pesar
que pestañeamos desvelados en un país multicultural, esa multiculturalidad
persiste ‘mutilada’ en los planos jurídico y social. Como nuestro
ordenamiento vigente no se encuentra preparado para procesar
eficientemente la creciente e irreversible multiculturalidad social, es de la
mayor conveniencia debatir propuestas encaminadas a asumir la
compatibilidad entre el proyecto político unitario con los múltiples
proyectos emanados de las diversas culturas. Una de esas propuestas
prospectivas que, estamos convencidos, permitirá favorecer el
reconocimiento (y la comprensión tolerante y recíproca) de las diversas
culturas de la sociedad chilena es la que acá se ha dado a conocer bajo el
nombre de Principio de la Multiculturalidad.
SYMBOLIC POWER WITHOUT SYMBOLIC VIOLENCE?
Mauricio García-Villegas* ** ***
I.
LEGAL CONSCIOUSNESS STUDIES . . . . . . . . . . . . . . . . . . . . . . 158
II.
ANTI-STRUCTURALISM AND THE CRITICAL STANCE . . . . . . . . 162
III.
THE CONCEPTS OF SYMBOLISM IN LEGAL SCHOLARSHIP . . . . 166
IV.
SYMBOLIC EFFECTS OF LAW IN BOURDIEU AND IN THE LCS . . 172
V.
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
During recent decades social theory has struggled with the attempt to
overcome both subjectivist and structuralist conceptions. In this effort,
actors have been understood to construct social reality through their
practices. Thus, social practices are socially constructed at the same time.
Neither subjects nor objects existed prior to this work of construction; the
nature of reality is therefore always symbolic, discursive.1 These ideas
have been accorded a warm reception in the Law and Society (L&S)
Movement, and, in particular, in a current of thought within the movement
that is interested in the study of legal consciousness in the everyday life of
social actors, here termed “Legal Consciousness Studies” (LCS). In this
Essay, I propose to analyze some aspects of the reception of that social
theory in these sociolegal studies. The hypothesis that I want to
demonstrate is that despite the importance of their contributions to
understanding of law, there is a theoretical ambiguity in these studies. This
follows from the fact that they adhere to different currents of social theory,
which are irreconcilable to the extent that they are premised on different
presuppositions about social relations.2
* García-Villegas is a Professor of Law at the National University in Bogota,
Colombia, and an Affilliated Scholar at the Institute of Legal Studies, University of Wisconsin
Law School.
** A similar but different version of this Essay is being published in a special issue of
the International Journal for the Semiotics of Law edited by John Brigham.
*** I would like to thank Jane Larson, John Brigham, Sally Merry, Cesar Rodríguez,
Diego López, Howard Erlanger, Catherine Albiston, Daniel Lipson, Christine Ruggiero, Ruben
Garcia, Oscar Guardiola, Jonathan Graubart, Dan Steard, and Austin Sarat, for the valuable
comments they provided on an earlier version of this Essay.
1. For this concept, see ERNESTO LACLAU & CHANTAL MOUFFE, HEGEMONY AND SOCIALIST
STRATEGY: TOWARD A RADICAL DEMOCRATIC POLITICS (1985).
2. See generally JEFFREY C. ALEXANDER, TWENTY LECTURES: SOCIOLOGICAL THEORY
SINCE WORLD WAR II (1987).
157
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To illustrate this ambiguity, I will contrast the way that the concept of
symbolic efficacy is employed in the LCS and in the work of Pierre
Bourdieu, who is frequently cited by the new sociolegal studies as an
authorized theoretical reference. I will analyze, first, some basic concepts
that underpin the sociolegal studies considered here; then I turn to an
explication of some notions related to the idea of symbolism in law; finally
I concentrate on a theoretical comparison between Bourdieu and the LCS.
My hope is to contribute to the French debate on both Bourdieu’s
sociolegal theory and the sociology of law in general.
I. LEGAL CONSCIOUSNESS STUDIES
At the end of the 1980s some prominent members of L&S began to
reconceptualize its movement. The aim was to achieve greater critical
commitment in opposition to the predominant position, which, according
to critics, was politically and epistemologically perverted through the
prevalence of an institutional viewpoint and a public policy bias.3 This
redirection revived the old realist purpose to attain an empirical sociology
of law that was, at the same time, critical. The studies encompassed in this
project of renewal can be termed, following McCann and March,4 and
Ewick and Silbey,5 “Legal Consciousness Studies.” They include not only
those authors referred to in McCann and March,6 but also part of the group
of sociolegal researchers—especially what Trubek and Esser have named
the “Cultural Anthropology” tendency—partially linked to the Amherst
Seminar in Massachusetts. All of these authors base their work in a
constitutive theory of social action and beginning from that point, attack
3. See generally Austin Sarat & Susan S. Silbey, The Pull of the Policy Audience, 10 LAW
& POL’Y 97 (1988).
4. See generally Michael W. McCann & Tracey March, Law and Everyday Forms of
Resistance: A Socio-Political Assessment, in 15 STUDIES IN LAW, POLITICS, & SOCIETY (Austin
Sarat & Susan S. Silbey eds., 1995).
5. See generally PATRICIA EWICK & SUSAN S. SILBEY, THE COMMON PLACE OF LAW:
STORIES FROM EVERYDAY LIFE ch. 3 (1998) [hereinafter COMMON PLACE]; Patricia Ewick & Susan
S. Silbey, Conformity, Contestation and Resistance: An Account of Legal Consciousness, 26 NEW
ENG. L. REV. 731 (1992) [hereinafter Legal Consciousness].
6. McCann & March, supra note 4, at 208-09. In their examination of these sociolegal
studies McCann and March concentrate on the following authors: SALLY ENGLE MERRY, GETTING
JUSTICE AND GETTING EVEN: LEGAL CONSCIOUSNESS AMONG WORKING CLASS AMERICANS (1990);
BARBARA YNGVESSON, VIRTUOUS CITIZENS, DISRUPTIVE SUBJECTS: ORDER AND COMPLAINT IN A
NEW ENGLAND COURT (1993); Legal Consciousness, supra note 5; Austin Sarat, “ . . . The Law Is
All Over”: Power, Resistance and Legal Consciousness of the Welfare Poor, 2 YALE J.L. &
HUMAN. 343 (1990) [hereinafter The Law]; Austin Sarat, Off to Meet the Wizard: Beyond Validity
and Reliability in the Search for a Post-Empiricist Sociology of Law, 15 LAW & SOC. INQUIRY 155
(1990) [hereinafter Off to Meet the Wizard]; Lucie E. White, Subordination, Rhetorical Survival
Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 BUFF. L. REV. 1 (1990). See
generally McCann & March, supra note 4.
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instrumentalist visions of law.7 In this sense they are not too dissimilar
from the Critical Legal Theorists, although LCS distanced itself from these
theorists in its vindication of empirical investigation.
I will develop my analysis on these LCS mostly in very general terms,
understanding that they belong to what is today a dominant trend in
sociolegal studies in the United States. I am aware of the fact that, given
this level of abstraction, my critique is not suitable to all authors interested
in legal consciousness.
The legal phenomenon is seen in LCS as a constitutive element of
social reality and not as an official institutional apparatus destined to
intervene in this reality.8 Accordingly, the attention of the investigator is
directed toward those everyday concrete social practices in which legal
rules are perceived as constitutive elements of the reality. This emphasis
on the routine instead of the exceptional, on the social in place of the
institutional, and on mental representations (the symbolic worldview)
instead of a coercive legal system (the instrumental vision) are common
elements in this change of optic.9
The concept of legality is central to this perspective. Patricia Ewick and
Susan Silbey point out that “(l)egality is an emergent feature of social
relations rather than an external apparatus acting upon social life. As a
constituent of social interaction, the law—or what we will call
legality—embodies the diversity of the situations out of which it emerges
and that it helps structure.”10 One can detect three more or less scattered
premises in this reconfiguring of L&S: first, a defense of empirical
research without implying the adoption of positivist postulates; second, a
progressive political position in favor of weak or marginalized social
actors; and finally, a perspective that is more open to exploring the
complexities of the relationship between law and social change from a
constructivist perspective.
In the first place, LCS was opposed to the crude positivism of the early
years of the L&S Movement.11 There is no objective truth; that is, there is
no truth independent of the knowing subject. The significance of
knowledge is socially constructed in the relationship between the observer
7. It is worth noticing that there are some legal theorists who apply the constitutive theory
to the legal field in rather different terms. See, e.g., JOHN BRIGHAM, THE CONSTITUTION OF
INTERESTS: BEYOND THE POLITICS OF RIGHTS (1996); John Brigham, The Constitution of Interests:
Institutionalism, CLS and New Approaches to Sociolegal Studies, 10 YALE J.L. & HUMAN. 421
(1998) [hereinafter Constitutions of Interests].
8. According to Ewick and Silbey, “The ways in which the law is experienced and
understood by ordinary citizens as they choose to invoke the law, to avoid it, or to resist it, is an
essential part of the life of the law.” Legal Consciousness, supra note 5, at 737.
9. Id. at 741-42.
10. COMMON PLACE, supra note 5, at 17.
11. McCann & March, supra note 4.
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and the observed.12 However, this proposition has provoked great debate
in the North American sociology of law, particularly centered around the
Amherst Seminar. Betweeen 1980 and 1995 Amherst, Masschusetts, was
home of a discussion group in sociolegal theory called the “Amherest
Seminar on Legal Ideology and Legal Process.” For over a decade, the
most important intellectuals in North American and European sociology
of law were invited to the seminar. There was some affinity between the
seminar and the LCS. The seminar’s aim was to reconstruct an empirical
sociology that was at the same time critical.13Sociolegal research provides
new visions or interpretations of legal phenomena, perhaps more adequate,
but without validity or truth being claimed for them.14 Empirical
investigation and the research methodology of the social sciences are not
sacrificed—and in this regard the empiricist imperative maintains all the
vigor of the L&S tradition—although the objectivist postulates typical of
positivistic social science are renounced. So, its advocates champion a
postempiricism that does not conceive of science as authoritative or
conclusive knowledge, but one that “continues to keep alive the hope that
science can serve as a tool of persuasion, albeit a limited one, in a world
with ‘a multitude of values, knowledge perspectives, and criteria.’”15
Empirical research thus changes its subject of analysis in this new
version of L&S. LCS react against a research tradition dedicated to the
study of how legal institutions operate, and, in particular, the courts. LCS
also interested themselves in judicial work, but not from the perspective
of the judge or the judge’s decision, as the earlier work in L&S had done.
Instead, they examine judicial work from the perspective of the
participating actors. In McCann’s words, they countered the top-down
approach with “bottom-up jurisprudence.”16 In these new micro-cultural
spaces, ethnographic and anthropological research acquire an
overwhelming importance that contrast with other approaches that are
more concerned with the structural elements of class or hegemony.
12. See Christine B. Harrington & Barbara Yngvesson, Interpretative Sociolegal Research,
15 LAW & SOC. INQUIRY 135, 148 (1990).
13. David M. Trubek & John Esser, “Critical Empiricism” in American Legal Studies:
Paradox, Program, or Pandora’s Box?, 14 LAW & SOC. INQUIRY 3, 3-52 (1987). In their evaluation
of the seminar’s achievements Trubek and Esser state that although the seminar pariticpants were
able to leave behind a deterministic and instrumentalist view of legality, the attachment to a
conception of empirical science was unchanging, and that created important theoretical problems.
For the complete debate, see generally Review Section Debate, 15 LAW & SOC. INQUIRY 135, 13580 (1990).
14. See Off to Meet the Wizard, supra note 6, at 166.
15. Id. at 165.
16. MICHAEL MCCANN, RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF
LEGAL MOBILIZATION 21 (1994).
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161
Additionally, LCS identified themselves politically with the interests
of the subjects of their research—the marginalized, the minorities, the
excluded, etc.—and then attempted to create alternative social forms
through the use of law.17 This Essay affirmatively resolves the debate that
arose inside the Critical Legal Studies (CLS) group about the convenience
of using the law as an instrument of social emancipation. LCS recognize
the possibilities of struggle against hegemony without forgetting that the
law can, de facto, work in some cases as an instrument of social
domination.18 In this regard, the understanding of the relationship between
law and social change is much more complex and elaborate than the
approach found in CLS.19
Also, from its origins, those working in LCS joined critics in rejecting
the gap studies and, in general, positioned themselves against the
instrumentalist views of law predominating in L&S during the 1970s. In
contrast to these approaches, they insisted on the indeterminate character
of law.20 Legal norms give way to multiple, disparate, and variable social
practices that can only be made sense of by investigating empirically the
legal consciousness of concrete social actors. This research shows how
social actors, despite being limited by social structures, possess a
significant creative, constructive capacity. While the notion of
determination or lack thereof in critical studies leads to the structuralistMarxist debate on the relations between the state/law and the economy, in
LCS the same theme directs emphasis toward the cultural and subjective
elements of political domination and thus to the adoption of an
“interpretive” social theory.21 Following this perspective, legal
consciousness is part of a reciprocal process in which the significance
attributed by individuals to their world, and thus to law, “become[s]
repeated, patterned, and stabilized, and those institutionalized structures
become part of the meaning systems employed by individuals.”22 If
legality is a dynamic process of social construction, the instrumentalist
approach and determinate character of law lose all explanatory power. In
its place arises a concept of law endowed with contingent outcomes that
derive from the interaction of individuals and institutions.
17. KRISTIN BUMILLER, THE CIVIL RIGHTS SOCIETY: THE SOCIAL CONSTRUCTION OF VICTIMS
(1988); see generally White, supra note 6.
18. Adelaide H. Villmoare, The Left’s Problems with Rights, 9 LEGAL STUD. F. 39, 41-43
(1985).
19. See MCCANN, supra note 16.
20. Legal Consciousness, supra note 5, at 742; see also COMMON PLACE, supra note 5.
21. See generally PETER L. BERGER & THOMAS LUCKMANN, THE SOCIAL CONSTRUCTION OF
REALITY: A TREATISE IN THE SOCIOLOGY OF KNOWLEDGE (1966).
22. Legal Consciousness, supra note 5, at 741. The cultural emphasis in these studies is
notorious. On this point, see MCCANN, supra note 16.
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II. ANTI-STRUCTURALISM AND THE CRITICAL STANCE
Studies of legal consciousness bring together, with variants, essential
parts of both the L&S and critical traditions. From L&S they have taken
the idea that empirical research is essential to make sense of the way law
functions in society. From the critical tradition they have adopted the
aspiration that sociolegal studies should serve not only to describe how
law operates in society, but also, and above all, to contribute to the
transformation of society and the defense of the excluded. In relation to
this latter aspect, as mentioned above, these studies have made extremely
important contributions, especially with regard to the complexity of
individuals’ legal strategies, whether of accommodation or resistance.23
Despite their critical ambitions, however, a reading of the LCS leave, from
the political point of view, a nostalgic taste of lost revolutionary
fervor—recognizing that in this they are not alone—and, from the
theoretical standpoint, the sensation of “rigor without imagination,” to use
one of Pierre Bourdieu’s expressions. This despair appears to be due to the
adoption of a type of epistemological approach that neglects the role of
political domination in sociolegal phenomena. On this point Trubek and
Esser seem to be correct when, analyzing these studies, they relate LCS’
failure to provide a strong political critique to the studies attachment to
empiricism.24 According to Trubek and Esser, the Seminar was not able to
elucidate the complex relationship between knowledge and politics;
perhaps for that reason, their studies lack the political commitment and the
moral richness that is often found in critical studies and in feminist work.25
Excessive confidence in social science and in the possibility of
understanding a sociolegal reality through empirical investigation limits
their critical perspective. The fact that, according to established social
science methods, only “verifiable” objects of study are accepted minimizes
the possibilities of interpretation and critique. Over-dependence on data
derived from empiricism generally limited to local social settings means
that the critique loses the force of more comprehensive denunciations.26 I
agree with Trubek and Esser on their idea that LCS lack critical
dimension, but I take a different argument to explain why that happened.
Instead of looking at the way they adopt empiricism, I focus on a tension
or even an inconsistency in their theoretical background.
23. See generally MCCANN, supra note 16; McCann & March, supra note 4.
24. See generally Trubek & Esser, supra note 13.
25. Id. at 33-34.
26. See generally Boaventura de Sousa Santos, Room for Manoeuver: Paradox, Program,
or Pandora’s Box?, 14 LAW & SOC. INQUIRY 149 (1989); Joel F. Handler, Postmodernism, Protest
and the New Social Movements, 26 LAW & SOC’Y. REV. 697 (1992).
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163
The contemporary debate on empiricism and criticism, however, is not
what it was when Trubek and Esser wrote their influential essay. Over
recent decades, sociolegal theory in L&S has joined in with the prevailing
tendency in social theory, according to which it is necessary to supersede
both objectivist positions (functionalism, structuralism) and subjectivist
stances (phenomenology, ethnomethodology, interactionism, etc.).27 This
tendency goes by different names, among which the theorie pratique of
Pierre Bourdieu and the “structuration theory” of Anthony Giddens are
outstanding examples. In LCS, these theoretical positions are generally
recognized and adopted under the rubric of a “constitutive theory of
law.”28
Despite this theoretical “agreement” around the notion of a constitutive
theory of law—an agreement which moreover is proposed in very general
terms—the empirical research of the LCS seem to be marked, in practice,
by an underestimation of the structural elements privileging individual
action.29 In this Essay, I argue that the domestication of critique in the LCS
is linked to a certain dissonance between their empirical studies and the
theoretical grounding. This dissociation has an explanation not only in a
certain geographical division between empirical research with a strong
influence of North American empiricist traditions30 and a theoretical bases
27. See, e.g., ADVANCES IN SOCIAL THEORY AND METHODOLOGY: TOWARD AN INTEGRATION
(K. Knorr-Cetina & A.V. Cicourel eds., 1981) [hereinafter
ADVANCES OF SOCIAL THEORY AND METHODOLOGY], in which articles by Anthony Giddens, Pierre
Bourdieu, J. Habermas, Randall Collins, and others are included; MICHAEL BURAWOY ET AL.,
ETHNOGRAPHY UNBOUND, POWER AND RESISTANCE IN THE MODERN METROPOLIS (1991); Anthony
Elliot, Introduction, in THE BLACKWELL READER IN CONTEMPORARY SOCIAL THEORY (Anthony
Elliot ed., 1999).
28. See JOHN BRIGHAM, THE CONSTITUTION OF INTERESTS: BEYOND THE POLITICS OF RIGHTS
(1996); COMMON PLACE, supra note 5, at 274; MCCANN, supra note 16, at 303; Harrington &
Yngvesson, supra note 12, at 141; Legal Consciousness, supra note 5. For a more general overview
of the contributions of this theory in law, see ALAN HUNT, EXPLORATIONS IN LAW AND SOCIETY:
TOWARDS A CONSTITUTIVE THEORY OF LAW (1993). Legal consciousness studies (LCS) are not
alone in employing this theory, see, e.g., Ruth Margaret Buchanan, Context, Continuity and
Difference in Poverty Law Scholarship, 48 U. MIAMI L. REV. 999 (1994). For its theoretical
antecedents, see DOUGLAS HAY ET AL., ALBION’S FATAL TREE: CRIME AND SOCIETY IN
EIGHTEENTH-CENTURY ENGLAND (Douglas Hay et al. eds., 1975); Owen M. Fiss, Objectivity and
Interpretation, 34 STAN. L. REV. 739 (1982); Robert W. Gordon, Critical Legal Histories, 36 STAN.
L. REV. 57 (1984); Karl Klare, Lawmaking as Praxis, 40 TELOS 123 (1979). The constitutive theory
of law is usually an offshoot of cultural studies, especially drawing on the seminal work of
CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY
(1983) and MICHEL DE CERTEAU, THE PRACTICE OF EVERYDAY LIFE (Steven Rendall trans., 1984)
and of postmodernism; see Handler, supra note 26; LACLAU & MOUFFE, supra note 1.
29. Handler, supra note 26.
30. C.G.A. Bryant argues that a positivist approach to the social sciences has predominated
U.S. departments of sociology since 1940. CHRISTOPHER G.A. BRYANT, POSITIVISM IN SOCIAL
THEORY RESEARCH 133 (1985); see also Alan Sica, Social Theory’s “Constituency,” 20 AM.
OF MICRO- AND MACRO-SOCIOLOGIES
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of European origin31 emphasizing critique, but also in a differentiation
with political roots as the dissociation between theoretical model and
empirical investigation originates in the existence of divergent “theoretical
presuppositions”—to employ Alexander’s concept—from which the
proposed theoretical models are constructed. Let me explain. One possible
division in social theory is that which differentiates between those who
study society as a terrain of conflict, stratified and marked by struggle,32
and theorists who, without ignoring the existence of conflict, posit that
society is better characterized by features such as interaction and culture.
This tension between conflict and consensus in social theory harks back
to a debate that exercised functionalist and Marxist scholars during the
1960s and which today is considered to have been superseded.33 In a more
general sense, however, this tension continues to have meaning and
manifests itself in different ways.34
In short, I hypothesize that there is a dissociation in LCS between two
types of theoretical foundations. On one hand, they seem to adhere to a
general theory primarily developed in Europe by theorists working within
a social conflict tradition.35 This framework is supposedly aimed at
nourishing what LCS call a constitutive social theory, by which the
structure/agency dichotomy would be overcome. On the other hand,
however, empirical research in LCS seems to be grounded in a typically
American social theory that we may term, following Collins,
microinteractionist. According to this approach, and in opposition to
conflict theories, elements linked to agency, like individual consciousness,
communication among actors, and symbolic interchanges, prevail. Given
the preeminence of empiricism over theoretical analysis in LCS, this
dissociation leads to a situation in which actors and their consciousness
and practices turn out to be much more important than social structures
working to restrict actors. Thus, cognitive matters became central in the
analysis, whereas political elements were almost forgotten. Symbolic
interchange obscures symbolic violence.
In other terms, there seems to be a gap between interpretivist
theoretical models—society as constructed—based in assumptions close
to the conflict tradition, and empirical investigations associated with a sort
SOCIOLOGIST 227, 227-41 (1989).
31. In theoretical matters, North American sociologists of law have been somewhat
dependent on European tendencies. See de Sousa Santos, supra note 26; Trubek & Esser, supra
note 13.
32. Here I am referring in general terms to all social theories that emphasize conflict,
especially between groups and classes, as a central element of social practices and of social theory.
33. See generally ANTHONY GIDDENS, SOCIOLOGY 1 (1993).
34. As Randall Collins reviews in his text, RANDALLCOLLINS, FOUR SOCIOLOGICAL
TRADITIONS (1994).
35. Such theorists include Bourdieu, Foucault, Giddens, and Touraine.
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of cultural microinteractionism. This dichotomy also appears as a lack of
accord between defenders of a cultural perspective on legal practices36 and
proponents of a conflict theory.37 The fact that all of these authors share
the idea to overcome the dichotomy between structure and agency—which
characterizes constitutive social theory—does not seem sufficient to
include them under a unitary model. So, the dissociation between the
theoretical and the empirical in LCS is also evidenced as a divergence with
respect to the use of interpretive social theory: while some employ the idea
of the interconnection between structure and agency to show the cognitive
importance of social construction premised on agency, others use this
supposition to illustrate how domination is originated and produced. In
short: I claim that a theory such as that of Bourdieu or Giddens confuses
more than it enlightens when it is incorporated into the theoretical model
termed “the constitutive theory of law.”
This argument is worth developing in more detail. In the cultural vision
that underlies LCS the law is seen as a symbolic or discursive object.38
This symbolic vision on law is different from the concept of the symbolic
use of law that Bourdieu, among others,39 proposes. While the first concept
36. See, e.g., GEERTZ, supra note 28; PAUL KAHN, THE CULTURAL STUDY OF LAW:
RECONSTRUCTING LEGAL SCHOLARSHIP (1999); Susan Silbey, Making a Place for Cultural
Analyses of Law, 17 LAW & SOC. INQUIRY 39 (1992); Barbra Yngvesson, Inventing Law in Social
Settin: Retuinking Popular Legal Culture, 98 YALE L. J. 1689 (1989).
37. See, e.g., PIERRE BOURDIEU, RAISONS PRATIQUES: SUR LA THÉORIE DE L’ACTION (1994);
ANTHONY GIDDENS, CENTRAL P ROBLEMS IN SOCIAL THEORY: ACTION, STRUCTURE AND
CONTRADICTION IN SOCIAL ANALYSIS (1979) [hereinafter CENTRAL PROBLEMS]; ANTHONY
GIDDENS, SOCIOLOGY [hereinafter SOCIOLOGY]. Bourdieu explains the production and reproduction
of hierarchical social systems with reference to the way that cultural resources, social processes,
and institutions maintain individuals in a continual competition for social dominance. On the
adoption of a social theory of conflict in Bourdieu, see DAVID SWARTZ, CULTURE AND POWER: THE
SOCIOLOGY OF PIERRE BOURDIEU (1997). Giddens, in turn, argues that all social systems
can be studied as incorporating or expressing modes of domination and it is this
concept more than any other that provides the focal point for the investigation of
power. Social systems that have some regularized existence across time-space are
always “power systems,” or exhibit forms of domination, in the sense that they are
comprised of relations of autonomy and dependence between actors or
collectivities of actors.
ANTHONY GIDDENS, THE NATION-STATE AND VIOLENCE 8 (1987).
38. The sociolegal literature alludes to this as “interpretive.” Trubek & Esser, supra note 13,
at 13-14. In Europe the term “discursive” is more frequently used.
39. See generally GEORGES BALANDIER, LE POUVOIR SUR SCÉNES (Ballard ed., 1992); JOSÉ
EDUARDO FARIA, EFICACIA JURIDICA E VIOLENCIA SIMBOLICA: O DIREITO COMO INSTRUMENTO DE
TRANSFORMACAO SOCIAL (1984); Daniéle Loschak, Droit, normalité et normalization, in LE DROIT
EN PROCESS (Daniéle Loschak ed., (1983); MAURICIO GARCÍA-VILLEGAS, LA EFICACIA SIMBOLICA
DEL DERECHO: EXAMEN DE SITUACIONES COLOMBIANAS (1993).
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refers chiefly to a problem of knowledge,40 the second adds an element of
social domination.41 Given the plurality and malleability of the legal
symbols in the conception of LCS, and given that the meaning of such
symbols is never fixed, law has a social character that is essentially weak
and almost random.42 Sarat, for instance, claims43 that disadvantaged
citizens do not accept a “myth of rights”;44 individuals in his stories seem
able to resist legal symbols. This clearly contrasts with its strong and
almost inevitable character, in social and political terms, in the work of
Bourdieu and other authors who refer to the symbolic use of law as a
political phenomenon working in a hierarchical society.
Let me put this in other terms: a constructive or interpretive vision of
society entails that the explanation of society is reduced to the relation
between agency and structure or between subjects and objects. The social
reality is therefore constructed, relational, discursive, and cultural—pure
elements outside this relation. If this is the case, the problem here is how
to understand law as a discursive or cultural devise. What is the symbolic
efficacy of law in a social setting? And it is precisely in relation to these
problems that LCS and Bourdieu advance different conceptions of the law
as legal practice.
I will develop these ideas as follows: first, I will undertake a succinct
explication of the concepts of the symbolism in legal scholarship, and I
will show its different uses in North America; then I will illustrate how the
concept of symbolic uses of law is developed in Bourdieu as contrasted to
the concept of symbolic vision in LCS.
III. THE CONCEPTS OF SYMBOLISM IN LEGAL SCHOLARSHIP
Symbolism is not a way to manufacture meanings, but is rather a
modality of textual interpretation.45 It entails not only a presumption of
analogy between symbols and objects, but also a fundamental uncertainty
in meaning structures. The symbolic relies mainly on what Umberto Eco
40. See CLIFFORD GEERTZ, LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE
ANTHROPOLOGY 21 (1983) (refering to this perspective as “conceiving of social life as organized
in terms of symbols . . . whose meaning . . . we must grasp if we are to understand that organization
and formulate its principles”).
41. This difference, as we will see below, is not at all clear in the treatment that has been
accorded to the symbolic in North American sociology of law. In other words, clarity does not exist
concerning the meaning and scope of law understood as a symbol that constitutes and is constituted
in these practices.
42. MERRY, supra note 6, at 147.
43. E.g., The Law, supra note 6, at 374.
44. See generally STUART A. SCHEINGOLD, THE POLITICS OF RIGHTS: LAWYERS, P UBLIC
POLICY, AND POLITICAL CHANGE (1974).
45. UMBERTO ECO, SEMIOTICA E FILOSOFIA DEL LINGUAGGIO 225 (1984); ROLAND BARTHES,
MITOLOGIAS 211, 214, 226 (1980).
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calls the “cloudiness of the content.”46 In contrast, metaphors function
precisely in terms of meaning. Metaphors “allow us to understand one
domain of experience in terms of another.”47 Thus, symbolism involves
interpretation and justification in pragmatic contexts. This is called
pragmatic understanding of language48 and has had an extraordinary
influence on twentieth century theory. It is associated with the elimination
of the subject/object dichotomy in social theory,49 with the prevalence of
hermeneutic approaches both in the social sciences50 and law,51 with
rhetorical approaches in legal theory,52 with the analysis of symbols and
symbolism in anthropology,53 and with the study of sociolegal
interactions.54
In terms of social action, the symbolic is contrasted with the
instrumental. The transformation of social reality through pragmatic
measures characterizes instrumental action, whereas actions oriented to the
production of meaning in the context of communication and interpretation
characterize symbolic actions. Here, as Gusfield has noted, “the goal is
reached in the behavior itself rather than in any state which it brings
46. ECO, supra note 45, at 226; see also ROLAND BARTHES, MITOLOGIAS 211, 214, 226
(1980).
47. GEORGE LAKOFF & MARK JOHNSON, METAPHORS WE LIVE BY 117 (1980).
48. Regarding the distinction between semantics, syntax, and the pragmatic, see Charles W.
Morris, Foundations of the Theory of Signs, in INTERNATIONAL ENCYCLOPEDIA OF UNIFIED
SCIENCE (Otto Neurath ed., 1938). For the pragmatic uses of language, see H.P. Grice, Meaning,
64 PHILOSOPHICAL REV. 337, 377-88 (1957). For the relationship between linguistic pragmatics and
power, see BOURDIEU, supra note 37; V.N. VOLOSINOV, MARXISM AND THE P HILOSOPHY OF
LANGUAGE (1973).
49. PIERRE BOURDIEU, LE SENS PRATIQUE 43 (1980) (“Among all oppositions artificially
dividing social science the most unfortunate and ruinous is that established between subject[ ] and
object[ ].”); SOCIOLOGY, supra note 37, at 158 (noting that the study of natural languages is central
both to the understanding of actions as “meaningful,” and to the process of communication in social
interactions); JEAN-FRANÇOIS LYOTARD, LA CONDITION POSTMODERN 67 (1979) (“le lien social
est langagier”).
50. SOCIOLOGY, supra note 37, at 149.
51. See RONALD DWORKIN, A MATTER OF PRINCIPLE (1985). See, e.g., Fiss, supra note 28
(explaining judicial work as neither a discretionary nor mechanical activity); see also Gordon,
supra note 28.
52. The pragmatic relations between the speaker and audience in the context of legal
argumentation have been explored extensively by CHAIM PERELMAN, LOGIQUE JURIDIQUE (1979);
CHAIM PERELMAN, LE RAISONNABLE ET LE DÉRAISONNABLE EN DROIT (1984).
53. Classical works include: CLAUDE LEVI-STRAUSS, ANTROPOLOGIA STRUCTURAL (1984);
BRONISLAW MALINOWSKI, TEORIA SCIENTIFICA DELLA CULTURA ED ALTRI SAGGI (1949); M.
MAUSS, TEORIA GENEEERALE DELLA MAGIA ED ALTRI SAGI (1965).
54. For example, “symbolic interactionism” has been applied to law in different ways. For
examples of the various approaches, see JOSEPH R. GUSFIELD, SYMBOLIC CRUSADE: STATUS
POLITICS AND THE AMERICAN TEMPERANCE MOVEMENT (1963); Thomas Meisenhelder, Law as
Symbolic Action: Kenneth Burke’s Sociology of Law, 4 SYMBOLIC INTERACTION 43, 43-57 (1981);
Carolyn R. Miller, Public Knowledge in Science and Society, 3 PRE/TEXT 31, 31-49 (1982).
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about.”55 This distinction is similar to the difference between denotative
and connotative discourses: in denotation the focus is on a referent, which
is the same for everyone who refers to it; connotative references, by
contrast, are inherently ambiguous.56
In legal scholarship, the idea of the symbolic is most widespread in the
area of constitutional law,57 but it also has been developed in criminal
law,58 labor law,59 and in environmental law.60 Sociolegal scholars have
developed different approaches to the symbolic. The significance of this
concept varies widely depending on which era or which “school” one
looks at; the meaning given to it can even vary with the same author at
different times. At least four different approaches can be distinguished.
The first approach views the symbolic in terms of the inherent force of
legal discourse. In this schema, the law is the authorized language of the
State through which its legitimacy is produced and reproduced. No state
is able to survive through the use of physical coercion alone. An
authorized justification for the use of physical constraints is first needed,
and law exists to furnish it. Legitimated power and the law exist in a state
of symbiosis: state actions are justified through legal norms and legal
norms are effective when they are backed by the state power. Some
sociolegal scholars also emphasize this difference. Danièle Loschak argues
that the force of law does not reside exclusively in its recourse to
authorized physical violence, but also in the fact that it authorizes certain
speech acts—and not others—as “true” and “legitimate.”61 In the United
States, Sally Merry, for example, has argued that “law works in the world
not just by imposition of rules and punishments but also by its capacity to
55. GUSFIELD, supra note 54, at 21.
56. Id. at 170.
57. In the United States there is a large bibliography on the symbolic effects of constitutions;
see, e.g., JOHN BRIGHAM, THE CULT OF THE COURT (1987); SCHEINGOLD, supra note 44;
Constitutions of Interest, supra note 7; Max Lerner, Constitution and Court as Symbols, 46 YALE
L.J. 1290 (1937). For the Latin American context, see MARCELO NEVES, A CONSTITUIONALIZACAO
SIMBOLICA (1994); GARCÍA-VILLEGAS, supra note 39.
58. Ronald J. Berger et al., The Dimensions of Rape Reform Legislation, 22 LAW & SOC’Y
REV. 329, 329-353 (1988), for example, emphasizes the symbolic dimensions of rape law as an
indicator of women’s contemporary legal status, rather than as an instrumental mechanism for the
achievement of specific policy goals. Juvenile law is also frequently analyzed in symbolic terms.
59. William J. Moore & Robert J. Newman, The Effects of Right-to-Work Laws: A Review
of the Literature, 38 INDUS. & LAB. REL. REV. 571, 571-585 (1985). Moore & Newman have argued
that the impact of the right-to-work (RTW) laws on union membership, wages, and industry
location is more symbolic than substantive. See id.
60. Pauline Lane, Ecofeminism Meets Criminology, 2 THEORETICAL CRIMINOLOGY 235, 23548 (1998); Pierre Lascoumes, La Formalisation Juridique du Risque Industriel en Matière de
Protection de L’environment, 31 SOCIOLOGIE-DU-TRAVAIL 315, 315-33 (1989).
61. Daniéle Loschak, Driot, Normalite Et Normalization, in LE DROIT EN PROCESS 54 (1983).
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construct authoritative images of social relationships and actions. . . .”62
This particular property of law may be called symbolic to the extent that
it does not operate through instrumentalities, at least in the first instance,
but rather through political meaning. Political science,63 constitutional
legal studies,64 and even legal theory65 frequently employ this
understanding of the symbolic use of law.
A second approach focuses on the process of implementation of norms
as a matter of public policy. It defines its unit of analysis in terms of an
efficacious legal system created and supported by public agencies. The
crucial distinction between law-in-action and law-in-books became for
many sociolegal scholars a rationale in the search for institutional
consistency between both elements, instead of a mechanism for critical
analysis. Marginality, contradiction, and indeterminacy, as observed
features of the law, are here converted into problems of legal
implementation.66 These “inconsistencies” are seen as problems of
administration and public adjustment, rather than, for example,
mechanisms for the production of political hegemony. From this
perspective, the distinction between the symbolic and instrumental effects
of law is collapsed into the problem of “dysfunctional law,” which policymakers, aided by sociolegal knowledge, were supposed to solve. The
strong link in the early 1970s between academic researchers and state
62. MERRY, supra note 6, at 9.
63. Political science approaches often examine the processes by which government actions
shape public beliefs, perceptions, and behaviors. See, e.g., MURRAY EDELMAN, POLITICAL
LANGUAGE: WORDS THAT SUCCEED AND POLICIES THAT FAIL (1977); MURRAY EDELMAN, THE
SYMBOLIC USES OF POLITICS (1964) [hereinafter SYMBOLIC USES OF POLITICS]; Kitty Calavita, The
New Politics of Immigration: “Balanced-Budget Conservatism” and the Symbolism of Proposition
187, 43 SOC. PROBS. 284, 284-305 (1996).
64. The symbolic dimension of a constitution is often seen as an important and necessary
political effect which conditions the constitution’s instrumental efficacy. On this view, constitutions
have the symbolic function of framing a civic identity for people. See Giorgio Rebuffa, Legality
and Illegality, in the Constitution; Legalita e illegalita nella Consituzione, 37 QUADERNI-DISOCIOLOGIA 97, 97-104 (1993).
65. Even the instrumental efficacy of law presupposes this symbolic efficacy. Moreover, the
idea of validity in legal theory is very often linked to the symbolic acceptance of the legal system.
See H.L.A. HART, THE CONCEPT OF LAW (1961).
66. In the U.S., this process of conversion is frequently found in policy analyses. See, e.g.,
JEFFREY L. PRESSMAN & AARON WILDAVSKY, IMPLEMENTATION: HOW GREAT EXPECTATIONS IN
WASHINGTON ARE DASHED IN OAKLAND; OR, WHY IT’S AMAZING THAT FEDERAL P ROGRAMS
WORK AT ALL, THIS BEING A SAGA OF THE ECONOMIC DEVELOPMENT ADMINISTRATION AS TOLD
BY TWO SYMPATHETIC OBVSERVERS WHO SEEK TO BUILD MORALS ON A FOUNDATION OF RUINED
HOPES (1973). For an example of it in the European context, see Simon Charbonneau & Jean G.
Padioleau, La Mise En Oeuvre d’une Politique Publique Réglementaire Défrichement Des Bois et
Forêts, 21 REVUE FR. DE SOCIOLOGIE 49, 49-75 (1980); J.D. Dellay & L. Mader, Que faire des
objectifs dans une étude de mise en oeuvre de la législation?, 7 REVUE SUISSE DE SOCIOLOGIE 385,
385-97 (1981).
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policy reformers67 led these studies to overestimate the identification of the
state and official law. The relatively progressive political agenda that was
born with the L&S Movement was eventually smothered by the weight of
its debt to state policy reform.68 “[T]he alliance between sociolegal
scholarship and policy elites of the liberal state,” Sarat and Silbey argue,
“is sufficiently strong and subtle that research apparently critical of aspects
of American legal institutions works, paradoxically, to reinforce
fundamental assumptions of liberal legalism.”69
According to a third point of view, the influence or social efficacy of
law should be sought more in the institutional creation of a reified legal
consciousness whereby social reality appears as something natural, not
constructed70 and not so much in the instrumental determination of social
behaviors through rewards and sanctions. This position has been argued
by scholars in the traditional CLS. Their lack of agreement with respect to
the balance between the cultural and the economic, however, affects the
clarity of the movement when it comes to the concept of the symbolic use
of law.
Let me explain this idea. The rejection of legal instrumentalism is not
sufficient to unify the critics. This is because in the 1970s Neo-Marxist
debate on the possible autonomy of the state with respect to the economy,
an unavoidable tension was latent between the cultural dimension of
political legitimation and the structural character of the economy.71 This
tension has divided the critics. Some adhered to the position of Poulantzas
that state autonomy—and that of law—is only relative and that therefore
the legal order is determined “in the last instance” by the structure of the
capitalist mode of production. According to this—present in Balbus for
example—the possibilities of social emancipation through progressive
juridical reforms are practically nonexistent. Others, however, relying on
a Marxist analysis with a cultural emphasis,72 argued that the law offers
social movements genuine maneuverability derived from the needs that the
67. David M. Trubek, Back to the Future: The Short, Happy Life of the Law and Society
Movement, 18 FLA. ST. U.L. REV. 4 (1990), has also pointed to the importance of funding to this
uneasy alliance: “[s]ince there was no agency ready to provide adequate financial support for an
autonomous ‘discipline’ of law and society, their product was often tailored to meet the needs of
government agencies and foundations which had policy goals that might be served by law and
society knowledge.” Id. at 29.
68. See id. at 28-30.
69. Sarat & Silbey, supra note 3, at 113.
70. Robert W. Gordon, Some Critical Theories on Law and Their Critics, in THE POLITICS
OF LAW: A PROGRESSIVE CRITIQUE 281 (David Kairys ed., 3d ed. 1998)
71. See CLYDE W. BARROW, CRITICAL THEORIES OF THE STATE: MARXIST, NEO-MARXIST,
POST-MARXIST (1993).
72. Alan Hunt, The Ideology of Law: Advances and Problems in Recent Applications of the
Concept of Ideology to the Analysis of Law, 19 LAW & SOC’Y REV. 11 (1985).
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state apparatus has to make concessions in order to maintain or increase
its legitimacy. While the first position emphasized the determining
character of the economic structure, the second highlighted the state’s need
for legitimation. In this respect, James Boyle argues that when this debate
began, economic structuralism was dominant, but by the end the subjective
dimension predominated.73
The majority of the critical theorists consider that the symbolic effects
of law operate only to the benefit of state institutions and their aims of
political manipulation.74 However, too much emphasis on the unitary
character of state domination led these CLS scholars to a rather simplistic
image of law as an institutional mechanism for social control. The strength
of state legal domination undermines the possibility—even if often
remote—of emancipation from hegemonic structures through progressive
norms that were supposed to have only symbolic effects.75 Others,
however, more disposed to accept a certain cultural autonomy in the
symbolic use of law, consider that while a considerable institutional
advantage may exist relative to the possibilities of appropriation and
political manipulation of legal meanings, social movements and
individuals also can use these meanings in their favor. The concept of
hegemony in Gramsci, understood as an arena of struggle for political
meaning, is important for the defense of this position.76
In fact, it is not only the critical theorists who hold this idea of the
symbolic use of law as a practice of legitimation and domination.
Organizational theory both in Europe and in the United States has shown
how institutions respond to social problems in such a way that the aim of
legitimation and communication predominates over the achievement of the
proposed objectives.77 Of course there is a clear rapprochement between
this position and the first one outlined above. The difference lies in
emphasis: organizational theory insists that institutional legitimation is a
73. See James Boyle, The Politics of Reason: Critical Legal Theory and Local Social
Thought, 133 U. PA. L. REV. 685, 779 (1985).
74. Mark Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363, 1392-93 (1984). See generally
THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE, supra note 70; Joan Roelofs, Judicial Activism
as Social Engineering: A Marxist Interpretation of the Warren Court, in SUPREME COURT
ACTIVISM AND RESTRAINT (Stephen C. Halpern & Charles M. Lamb eds., 1982); Duncan Kennedy,
American Constitutionalism as Civil Religion: Notes of an Athiest, 19 NOVA L. REV. 909 (1995).
75. See generally Marc Galanter, The Radiating Effect of Courts, in EMPIRICAL THEORIES OF
COURTS (Keith O. Boyum & Lynn Mather eds., 1983); MCCANN, supra note 16, at 218.
76. See generally Gordon, supra note 70.
77. On this point, see M. CROZIER & FRIEDBERG, L’ACTEUR ET LE SYSTÈME (1977) in Europe,
and, in the United States, see the authors of the school called “new institutionalism” in sociology:
P. DIMAGGIO & WALTER POWELL, THE NEW INSTITUTIONALISM IN ORGANIZATIONAL ANALYSIS
8, 112 (1991). A similar perspective from outside this current can be found in, THE SYMBOLIC USES
OF POLITICS, supra note 63,where social problems are constructed by institutions in accordance
with their need for legitimation.
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strategy, while in the perspective that understands the symbolic as an
inherent element of law, legitimation is rather an outcome.
A fourth approach to the symbolic use of law can be found in studies
emphasizing the cultural aspect of ordinary citizens’ legal consciousness;
the law is viewed here as a social practice which “operates . . . as both an
interpretive framework and a set of resources with which and through
which the social world (including that part known as the law) is
constituted.”78 “Law,” argues Sarat, “is both a resource and a constraint.”79
According to this perspective, rather than an external force impressing
itself upon social life, the law is an emergent feature of social relations and
a socially constructed system of action. Drawing upon reflexively
informed social theory, subjects, as products and producers of society,
emphasize the symbolic dimension of legal practices. From this point of
view, all practices—including legal practices—are analyzed in terms of
their degree of symbolic efficacy. The symbolic is seen here as something
that characterizes both the perception of reality as well as the practices
derived from it. This discursive or interpretive approach to the symbolic
contrasts with a descriptive or positivist stance, according to which there
is an external reality apart from the subject who knows it.
In what follows, I will concentrate on the latter two perspectives: that
is, on the critical idea that the symbolic is approached as an institutional
strategy—or as an institutional use—destined to serve the aims of
legitimation, and the epistemological idea—or that of constitutive social
theory—in which the symbolic is understood as a form of cultural
consciousness that constitutes and in turn is constituted by the society. I
will refer to them with the terms symbolic use of law and symbolic vision
of law, respectively. Clarity in the distinction between the two will aid in
comprehending the problems that derive from the extant theoretical model
in LCS.
IV. SYMBOLIC EFFECTS OF LAW IN BOURDIEU AND IN THE LCS
Pierre Bourdieu is one of the most respected and most often cited
authors in the works of LCS.80 His work is frequently referred to by
79. Austin Sarat “. . . The Law is All Over” Power, Resistance, and the Legal Consciousness
of the Welfare Poor, 2 YALE J.L. & HUMAN. 343, 377 (1990).
80. E.g., EWICK & SILBEY, COMMON PLACE, supra note 5, at 39 (when explaining their
theoretical framework they state: “[w]e draw on a recent and growing body of literature in
sociology that attempts to bridge these dualisms by redefining the relationship between the
individual and social structure, reconfiguring what was understood to be an oppositional
relationship as one that is mutually defining.” To that end, they cite first Bourdieu and then
Giddens, Swidler, Sewell, and Steinberg. In theoretical studies of sociology of law, Bourdieu is
frequently cited to justify a theoretical framework). Buchanan, supra note 28; see also McCann &
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173
sociolegal researchers affiliated with the LCS school as supportive of both
a constructive theory of practice of law and a symbolic understanding of
social relations. Those belonging to LCS are particularly attracted to his
idea that the keys to understanding how social structures are produced and
reproduced are found in concrete social practices. The practices constitute
the structures as much as the practices themselves are determined by the
structures; the structures are socially constructed in the practices of social
actors in their everyday lives. The concept habitus is of particular
importance in this effort to get beyond the subject/object dichotomy.
According to Bourdieu habitus is
a system of durable, transposable dispositions, structured
structures predisposed to function as structuring structures,
that is as principles which generate and organize practices
and representations that can be objectively adapted to their
outcomes without presupposing a conscious aiming at ends or
an express mastery of the operations necessary in order to
attain them.81
The empirical dimension of Bourdieu’s postulate82 and the relevance of
everyday practices fit well with LCS interests. One could even say that as
Bourdieu has the aim to write a general theory of practices, LCS is
attempting to write a general theory of legal practices. In both cases there
is an underlying question: how are the discourses and social practices
produced and reproduced?
Bourdieu’s interest in this question is located in the fact that one can
obtain, through its elucidation, a better comprehension of political
domination in society. In other words, this question suggests another more
profound one: how is it possible that hierarchically based systems of
domination persist and reproduce themselves through social practices?
Bourdieu views society as a stratified and differentiated space in which
individuals struggle to defend positions and interests.83 Now, domination,
March, supra note 4, at 217; MERRY, supra note 6.
81. PIERRE BOURDIEU, THE LOGIC OF PRACTICE 53 (1990). For an application of this concept
to the field of law, see Fréderic Ocqueteau & Soubiran-Paillet, Champ juridique, juristes et régle
de droit: Une sociologie entre disqualification et paradoxe, in DROIT ET SOCIÉTÉ 9, 9-26 (1996).
82. It is worth noting that in Bourdieu this does not lead to a positivist outlook on the social
sciences. Bourdieu considers erroneous the opposition of theory and practice or that of quantitative
and qualitative methods. Both “theoreticism,” understood as speculation divorced from reality and
“methodologism” (methods as an end in themselves) have no reason to exist in sociology. See
generally Pierre Bourdieu & De San Martin, Le patronat, in ACTES DE LA RECHERCHE SCIENTIFIQUE
(1978).
83. SWARTZ, supra note 37, at 63. According to Wacquant, PIERRE BOURDIEU & J. D.
WACQUANT, AN INVITATION TO REFLEXIVE SOCIOLOGY 14 (1992), Bourdieu’s work can be
interpreted as a materialist anthropology of the specific contributions of the different symbolic
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more than something linked to the use of physical violence, is something
articulated through, and experienced through, the use of symbolic
violence. The ones who are dominant in society do not achieve that
position merely through possession of economic capital. They also attain
cultural capital and the close connection between the two forms of
capital.84 This articulation operates in such a way that the symbolic
systems—through which we establish classifications and determine the
essential categories of social inclusion and exclusion—do not have only
a cognitive and social structure function,85 but also a political function of
domination. The symbolic is also an inherently violent practice to the
extent to which it imposes meaning on the world and on social relations in
which economic and political power lose their original arbitrary and
exclusive connotations and appear as something normal and acceptable.
Here Bourdieu’s idea of “misrecognition” is important. Activities and
resources gain in symbolic power to the extent that they become separated
f r o m u n d e r l yi n g m a t e r i a l i n t e r e s t s a n d h e n c e a r e
“misrecognized”—disguised as disinterested forms of activities and
resources. The application of this idea to law can be seen in Bourdieu’s
article La force du droit.86 Not only is all action interested but much action
can be carried out successfully only if its interested character is
“misrecognized.”
The law is a good example of symbolic violence. The possibility that
legal workers have to establish essential classification for the social
order—legal/illegal, just/unjust, true/false—entails enormous political
privilege. According to Bourdieu, the official law is the privileged space
for the production and exercise of symbolic power. The law possesses the
“magic effect of nomination.”87 It also has the power to establish the
official, the legitimate, and the authorized worldview. Legal authority is
the privileged form of power, especially in terms of legitimate symbolic
violence—monopolized by the State—which the State both produces and
practices.88 The symbolic capital embedded in legal norms creates a type
violences on the reproduction and transformation of the structures of domination.
84. SWARTZ, supra note 37, at 136-37.
85. According to Bourdieu, the cognitive structures which social agents implement in their
practical knowledge of the social world are internalized “embodied” social structures. See generally
PIERRE BOURDIEU, LA DISTINCTION; CRITIQUE SOCIAL DU JUGEMENT (1979).
86. Pierre Bourdieu, La force du driot; elements pour une sociologie du champ juridique, in
ACTES DE LA RECHERCHE EN SCIENCES SOCIALES 64 (1986) [hereinafter La force du driot](French
version, perferred); Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field,
38 HASTINGS L.J. 805, 814-53 (1987) [hereinafter The Force of Law](English version). However,
I use here the original French version.
87. See sources cited supra note 86
88. Id. at 3. This idea of symbolic power is also usefully explored by BALANDIER, supra note
39; HARRY PROSS, ESTRUCTURA SIMBOLICA DEL PODER (1980); HARRY PROSS, VIOLENCIA SOCIAL
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175
of force that functions independently of their implementation.89 According
to Bourdieu, this type of legal force is defined by its opposition to both the
simple non-implementation (failure) of legal norms, and to the
implementation of legal norms through sanctions.90
In understanding the symbolic force of law or its legitimizing effect,
we must avoid not only those materialistic accounts that see nothing but
power relation in the explanation of law, but also those idealistic accounts
that explain it through the general recognition of the universal values
carried out by its norms. “We can no longer ask whether power comes
from above or from below,” says Bourdieu, in a reference to the debate
between critical and doctrinal explanations of law.91 Against the
materialistic account Bourdieu maintains that, “[w]e need to recover the
profound logic of juridical work in its most specific locus . . . .”92
However, this postulate does not prevent him from recognizing that,
“given the essential role it plays in social reproduction, the judicial field
has a smaller degree of autonomy than other fields, like the artistic or the
literary.”93
Symbolic power here is not only an institutional power but also a
power that is clearly linked to the economic structure of society. The
efficacy of symbolic capital in terms of social differentiation and hierarchy
relies on its correspondence with other forms of capital, among which
economic capital is primary. In Bourdieu’s words, “[g]iven that symbolic
capital is none other than economic or cultural capital when it is known
and recognized according to the categories of perception that it itself
imposes, the relations of symbolic power tend to reproduce and to
reinforce the power relations that constitute the structure of social space.”94
For this reason the schema for perceiving the world are not simply systems
of knowledge, they also are systems of social domination that demonstrate
the importance of the objective division between social classes.95 Loic
Wacquant explains how in Bourdieu “the sociology of knowledge or of
cultural forms is eo ipso a political sociology, that is a sociology of
symbolic power.”96
(1989).
89. GARCÍA-VILLEGAS, supra note 39.
90. La force du droit, supra note 86, at 14.
91. Id. In the United States this debate was specially intense between CLS scholars and the
legal mainstream.
92. La force du droit, supra note 89, at 3-4.
93. Id. at 18.
94. PIERRE BOURDIEU, CHOSES DITES 160 (1987).
95. Social class, according to Bourdieu, does not have an objective reality as Marx thought.
See BOURDIEU, supra note 37. What exists is “a space of differences, in which class exists, shall
we say, virtually . . . not as a datum but rather as something that is being invented” Id. at 28.
96. BOURDIEU & WACQUANT, supra note 83, at 14.
DE LOS SIMBOLOS
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In other words, the symbolic dimension of law is made of two
elements. One is the cognitive element, according to which actors give
meaning to their practices. The second, the political element, puts the
emphasis on the different types of uses of the symbolic in order to improve
domination. My argument is that this second aspect is neglected in LCS
and it is so because it is an aspect of the symbolic that seems to be relevant
only in a conception of society that draws upon a conflict theory, which is
strange to LCS.
LCS also take an interest in knowing how legal discourse and legal
practices are produced and reproduced over time.97 They conceive of the
law as a set of concrete practices of ordinary people and not as an
institutional discourse that is imposed upon them. The law is seen as a
complex repertoire of discursive strategies and symbolic parameters that
structure meaning and social practices. Thus, and in opposition to a
dogmatic view, the law is a phenomenon characterized by the pluralism,
indeterminacy, and contingency of legal practices. The symbolic is a
central element of this theory to the extent to which reality is constructed
through representations and interpretations and not in concrete realities.
However, in contrast to Bourdieu’s work, here the emphasis is placed on
the cognitive aspect of the symbolic dimension of law. This explains the
importance attributed to legal culture, understood as a complex set of
discourses and symbolic frameworks through which individuals give
meaning to their legal performances.98 The cultural and constitutive
viewpoints can, at times, seem to be the same: “[t]his cultural or
constructivist understanding sees legality as an ongoing human
production.”99
Structure is conceived of in terms of cultural schema that organize and
normalize social interactions. These cultural schema, unlike something
external and unitary that is imposed on subjects, are composed of myriad
complex interrelated significations that are difficult to disentangle.100
Consciousness, argue Ewick and Silbey, is not an effect of structure but
rather an integral part of it. “[It] is participation in the production of
structures.”101 Accordingly, ideology is not a set of abstract ideas but a
complex process through which “meaning is produced, challenged,
97. Silbey, supra note 36, at 41-42; Legal Consciousness, supra note 5, at 26; COMMON
PLACE, supra note 5, at 45, 247.
98. Critics consider LCS to be “[s]tudies of legal culture.” Susan S. Silbey, Making a Place
for Cultural Analyses of Law, 26 LAW & SOC. INQUIRY 39 (1992) ; MCCANN, supra note 16, at 15.
100. It is difficult to comprehend the meaning of a cultural order according to Clifford Geertz,
Ideology as a Cultural System, in IDEOLOGY AND DISCONTENT 47, 56-57 (David E. Apter ed.,
1964). Cultural studies are marked by this skeptical position with respect to the possibilities of
understanding the structural elements that infringe on agency. ALEXANDER, supra note 2, at 235.
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reproduced, and transformed.”102 Ideology, they argue, in a somewhat
confused way, can be understood to represent an intersection between
structure and consciousness. “If we use the term consciousness to name
participation in the production of structures, ideology refers to the
processes that produce a specific pattern in social structure.”103 Whatever
the explanation, the concept of legal ideology is reduced to the level of
everyday legal practices as a complex process through which meanings are
produced, reproduced, and changed, beginning with the experience of
shared power.104 Likewise, Harrington and Yngvesson, are opposed to a
modern conception of power grounded in “the distinction between
ideology and practice”;105 such a conception places “ideology outside of
social relations, and thus creat[es] a two-dimensional world, one part of
which (culture, the symbolic, the state, law) is given and constitutes the
other.”106 The reconceptualization of these terms—culture, consciousness,
structure, ideology—supposes an erasure of their dividing lines; the
subsumption of structure in consciousness107 makes the difference between
culture, structure, consciousness, and ideology a very subtle one and
frequently confusing.108
The “de-materializing” of the concept of ideology and its assimilation
to that of consciousness has even been the object of criticism in authors
sympathetic to the position argued in LCS. This is the case of Michael
McCann. For him “[t]he problem with this conceptual equation is that it
obscures, or reduces [the analytic] attention [paid] to . . . the interactive
relationship between [the] individual and [the] institutional” and between
the institutional and subjectivity.109 Once the institutional dimension of
ideology is played down, those social spaces where the poor live are
magnified. Not only is resistance overestimated in terms of political
practices but also those who suffer poverty are presumed virtuous or their
102. MICHÉLE BARRETT, WOMEN’S OPPRESSION TODAY: PROBLEMS IN MARXIST FEMINIST
ANALYSIS 47 (1980), cited in COMMON PLACE, supra note 5, at 225.
103. COMMON PLACE, supra note 5, at 225-26.
104. Id. at 225.
105. Harrington & Yngvesson, supra note 12, at 142.
106. Id.
107. COMMON PLACE, supra note 5, at 225 (stating that “Structure, which in its conventional
formulation tends to be understood as largely material and external to the situations it constrains,
is now defined so as to encompass ideas as well as resources.”). I admit with McCann, however,
that Merry's analysis, MERRY, supra note 6, of this relation is different to the extent that she
establishes a distinction between ideology and discourses.
108. See ALEXANDER, supra note 2, at 302-29, on the difficulties of formulating a cultural
theory. According to this scholar, following Geertz, the goal of cultural analysis is interpretation
and not theory. Id. at 328.
109. McCann & March, supra note 4, at 213.
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actions justified in all circumstances.110 Their practices are presumed to be
violence free. But this is an illusion, as Bourdieu has explained: “[a]nd the
populist illusion which is nowadays nourished by a simplistic rhetoric of
‘resistance’ tends to conceal one of the most tragic effects of the condition
of the dominated—the inclination to violence that is engendered by early
and constant exposure to violence.”111 Not only does this perspective not
help to distinguish the actions of the excluded according to their merits,
but in fact it works actively to obscure the way that powerful groups
routinely defy and resist legal norms, which frequently implies a
considerable cost for those with whom LCS authors identify.112 Moreover,
the idea that the resistance holds is not related to social classes, race, or
workplace struggles, but rather to tactical maneuvers against judges,
clerks, mediators, administrators, or other state officials.113 The fact that
both the collective and the contextual dimension of individual practices are
not considered leads these studies to conceptualize resistance as something
rather romantic and innocuous. In almost all the narratives chosen by these
authors, practices of resistance114 are reduced merely to intentions of
resistance that are supposed to be heroic but in fact are mostly useless or
ephemeral, even in terms of individual fights.
Symbolic power is exerted only with the collaboration of
those who undergo it because they help to construct it as
such. But nothing would be more dangerous than to stop short
at this observation (as idealist constructivism, in its
ethnomethodological or other forms, does). This submission
is in no way a “voluntary servitude” and this complicity is not
granted by a conscious, deliberate act; it is itself the effect of
a power, which is durably inscribed in the bodies of the
dominated, in the form of schemes of perception and
dispositions (to respect, admire, love, etc.), in other words,
beliefs which make one sensitive to certain public
manifestations, such as public representations of power.115
110. See id.
111. PIERRE BOURDIEU, PASCALIAN MEDITATIONS 233 (Richard Nice trans., Standford Univ.
Press 2000, 1997) [hereinafter PASCALIAN MEDITATIONS]. For an explanation of Bourdieu’s
opposition against the celebration of resistance, struggles, and creative practices of the dominated,
see P. BOURDIEU & LOIC J.D. WACQUANT, AN INVITATION TO REFLEXIVE SOCIOLOGY (1992)
[hereinafter INVITATION TO REFLECTIVE SOCIOLOGY] .
112. See PASCALIAN MEDIATIONS, supra note 111, at 219.
113. See generally McCann & March, supra note 4.
114. M. Becker, Towards a Substantive Feminism, in FEMINIST JURISPRUDENCE (Cynthia
Grant Bowman & Morrison Torrey eds., 1995).
115. PASCALIAN MEDITATIONS, supra note 111, at 171.
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On reading the stories presented by LCS one gets the impression that,
despite their own interpretations of practices, the final obstacle actors face
in their fight for emancipation is a structural one: race, poverty, education,
and so on. It is striking that the authors overlook this element in their
analysis.116 In the story of Millie Simpson told by Ewick and Silbey, for
instance, it is clear that she—a poor Black women—succeeds in her
resistance only when her boss, a powerful White man, decides to help
her.117 If this is the case, why then are structural and institutional elements,
which undoubtedly are important for the understanding of legal reality and
legal culture, so disregarded? I claim that it is because culture, domination,
and hegemony are reduced to consciousness.
In Bourdieu, conversely, culture cannot be understood outside the
economic and cultural conditions in which subjects act. Cultural tastes are
never disinterested and can only be understood by starting from a theory
of symbolic power.118 Culture is a set of dispositions internalized by
individuals through a process of socialization that constitute schemas of
perception and understanding of the world. These work only to the extent
that there is a certain correspondence with the hierarchical order that they
represent. “There is a correspondence between social structures and mental
structures, between the objective division of the social world—particulary
between dominators and the dominated in the different spaces—and the
principles of worldview and classification that agents apply to that
world.”119 This correspondence fulfills essential political functions in
society. Thus, symbolic systems are not only tools of knowledge but, first
and foremost, instruments of domination. Cultural capital works the same
way as economic capital and of course is intimately related to it. All
cultural production is oriented to the production of dividends, that is, to a
reward.120 According to Wacquant’s reading of Bourdieu, the concepts of
habitus, capital, and space expand the scope of interests while reducing
that of utility and consciousness. The concept of legal consciousness in the
LCS does just the opposite.
116. Moreover, some LCS are aware of this fact. Sarat, for instance, insists that the welfare
poor do not have a counter hegemonic view of law; neither are they able to challenge the system
of legal meaning through which power is exercised and domination maintained. Off to Meet the
Wizard, supra note 6, at 377.
117. See COMMON PLACE, supra note 5, at 3-14.
118. SWARTZ, supra note 37, at 89 (interpreting Bourdieu, “[i]f his theory of practices extends
the idea of interest to culture, then his theory of symbolic power extends culture to the realm of
interest with the claim that all forms of power require legitimation.”).
119. PIERRE BOURDIEU, LA NOBLESSE D’ÉTAT: GRAND CORPS ET GRANDES ÉCOLES 7 (1989)
[hereinafter LA NOBLESSE E’ETAT]; BOURDIEU, supra note 49, at 206.
120. In Bourdieu’s theory there is a search for profit analogous to the quest for economic
advantage in the selection or rejection of cultural styles. See BOURDIEU, supra note 37, at 147.
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“A central objective of Bourdieu’s work is to show how cultural and
social class correlate.”121 Ideology, for its part, is a tool that operates to
disguise social reality and therefore to maintain a certain status quo that
allows domination and differentiation among individuals. Ideology is then
synonymous with symbolic violence and consists in the capacity of a
social and institutional power to impose legitimate meanings, in such a
way that the power relations that undergird this power are hidden.122 So the
law is an essential element of political domination and its nature is
domineering, potent, and almost inevitable.123 In contrast, for LCS law is
always polyphonic, contingent, variable, and therefore, weak.124
The studies of legal consciousness tend to neglect the postulate
according to which the different schema for perception, interpretation, and
action originate in the positions that social actors occupy in the economic
sphere. Ewick and Silbey, for example, differentiate three ideal types that
aid in the comprehension of this complex reality; they term them: “before
the law,” “with the law,” and “against the law.”125 The first, “before the
law,” reflects those practices that depend on a reified view of law,
understood to be a coherent, majestic institution with all the formal
trappings.126 This is the view derived from the history it authorizes, the
story it wants to tell.127 The second possibility, “with the law,” comprises
a vision of the law as a playing field on which different actors and
institutions compete.128 The third, “against the law,” encompasses those
attitudes that see the law as a space of confrontation and, at times,
emancipatory struggle.129
121. SWARTZ, supra note 37, at 143.
122. Id. at 89. In Bourdieu ideology or symbolic violence is “the capacity to impose the means
for comprehending and adapting to the social world by representing economic and political power
in disguised, taken-for-granted forms.” Id. In his PASCALIAN MEDITATIONS, however, Bourdieu
warns about the concept of ideology:
[i]f I have little by little come to shun the use of the word “ideology” this is not only
because of its polysemy and the resulting ambiguities. It is above all because, by evoking
the order of ideas, and of action by ideas and on ideas, it inclines one to forget one of the
most powerful mechanisms of the maintenance of the symbolic order, the twofold
naturalization which results from the inscription of the social in things and in bodies.
PASCALIAN MEDIATIONS, supra note 111.
123. La force du droit, supra note 86, at 64; BOURDIEU, supra note 94.
124. Off to Meet the Wizard, supra note 6, at 375.
125. COMMON PLACE , supra note 5, at 45.
126. Id. at 47.
127. Id.
128. Id. at 48.
129. Id. at 48-49.
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This classification enriches the phenomenon of ordinary people’s legal
representations and shows the complexity of the resistance to law that had
been oversimplified by some CLS. It does not appear, however, to give
sufficient weight to the power of certain material factors to restrict
pluralism, contingency, and legal practices. Ewick and Silbey, for
example, do not seem interested in investigating why some types of legal
consciousness appear to prevail over others and what relationship exists
between this tendency and the existence of a hierarchically divided
society. In the same Ewick and Silbey research, there is a clear correlation
between social marginality and the legal consciousness termed “before the
law”; likewise, to have some cultural and economic capital and the
representation of law as a game appear to go hand in hand. However this
correlation does not show up in their analysis, not even as an interesting
element. Because they are interested in what kind of legal consciousness
people possess without asking what kind of material conditions make this
legal consciousness possible, the concept of domination exists but does not
seem to hold a central place.130
For these authors, social practices structure a social reality that, in turn,
affects these practices, but the process is not directed toward political
domination. Their interest lies in legal consciousness and individual
practices of resistance, as they form part of a process in which the meaning
given by individuals to their law becomes repeated and stabilized, and
those institutionalized structures become part of the meaning systems that
are employed by actors.131 But their narration of consciousness and
practices of resistance do not explain why, even in their own examples,
actors are not only inevitably isolated but also are unable, despite their
resistance, to modify their situation of subordination and marginality.132
This is so because they are not interested in exploring the conditions under
which an actor’s legal consciousness is produced and reproduced in
society.133 Whatever the case, the act of limiting oneself to recounting
individual stories of resistance to hegemonic power, without taking into
consideration the obstacles to this resistance, obscures the phenomenon of
power in society, including that of local power to the extent to which it
exists in relation to other powers.134
130. PASCALIAN MEDIATIONS, supra note 111, at 67.
131. Legal Consciousness, supra note 5, at 741.
132. See White, supra note 6, at 21-32 (declaring that the narration of Mr. G’s history leaves
the same impression).
133. PASCALIAN MEDIATIONS, supra note 111, at 68.
134. See generally BURAWOY ET AL., supra note 27; BOAVENTURA DE SOUSA SANTOS,
TOWARD A NEW COMMON SENSE: LAW, SCIENCE AND POLITICS IN THE PARADIGMATIC TRANSITION
(1995).
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In the face of the crushing imposition of official law on individuals’
mental representations and on their practices, Ewick and Silbey speak of
“reification”;135 Bourdieu, in comparison, refers to symbolic violence.
These are not mere nuances of meaning; they presented and revealed two
different theoretical options, one centered in problems of knowledge and
the other in problems of power. In one, human agency is privileged, while
the other emphasizes the state’s imposition of a worldview. Neither does
this refer simply to a question of emphasis; above all it is a difference
underlying three essential concepts in a critical legal theory: legal culture,
legal consciousness, and legal domination.
Both LCS and Bourdieu insistently employ an idea of the symbolic, in
opposition to an instrumentalist, view of law. For LCS, however, this
notion has an epistemological use that refers to the construction of a legal
reality premised on systems of communication and interchange among
individuals.136 While in Bourdieu this idea has not only a constitutive
connotation (it creates the social world although this world first creates the
law), it has, first and foremost, a clear political presentation, because
creating and ordering social reality confers a permanence upon it that is
typical of things.137 In order not to fall into a sort of radical nominalism à
la Foucault, however, Bourdieu sustains that law’s power to name and to
create “can function effectively only to the extent that the symbolic power
of legitimation (or naturalization) reproduces and heightens the immanent
historical power which the authority and the authorization of naming
reinforces or liberates.”138 As a consequence, the political function of
symbolic legitimation is superimposed on a cognitive or merely creative
dimension that the law possesses as constructor of society. Law is seen as
an instrument strategically employed by social actors in conflict.139
LCS, conversely, seem to give greater importance to the cultural or
constitutive dimension than to the political dimension, or at least they do
not center their attention on the latter. This weighting derives from the
assumption they adopt, in contrast to conflict theorists, that social actors
do not necessarily act in a strategic and self-interested manner. Bourdieu’s
critique of phenomenological and ethnomethodological positions in
sociology is perfectly apropos here
135. COMMON PLACE, supra note 5, at 78-79.
136. In opposition to a conception of law as a set of normative institutionalized controls, see
generally Galanter, supra note 75, at 117-42.
137. La force du droit, supra note 86, at 13.
138. See id.; BOURDIEU, supra note 49, at 206; BOURDIEU, supra note 94, at 160.
139. According to Swartz, Bourdieu injects the language of strategy to distance himself from
strict structuralist forms of determination by stressing the importance of agency. SWARTZ, supra
note 37. On the other hand, the concept of strategy does not lead to the acceptance of a rational
choice theory. Id. at 99.
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while they are right to recall, in opposition to the mechanist
vision, that social agents construct social reality, they fail to
address the question of the social construction of the
principles of construction of that reality which agents
implement in the individual and also collective work of
construction, and to consider the contribution of the State to
that construction . . . . In modern societies, the State makes a
decisive contribution towards the production and
reproduction of the instruments of construction of social
reality.140
LCS accept that violence is exercised through law and that this violence
favors hegemonic power; however, and in concordance with the cultural
turn prevailing in social theory over the last decade, it appears as if the
explanations lodge here and go no further. The relationship between
violence and class domination is not developed. For Yngvesson,141 the way
law names the world and the way legal professionals construct meanings
is hegemonic, but that hegemony assumes plurality: It does not passively
exist as a form of dominance. “It has continually to be renewed, recreated,
defended, and modified.”142 Sarat explains this accent on resistance stating
that “[m]eanings that seem natural, or taken-for-granted, are described as
hegemonic, but because the construction of meaning through law is, in
fact, typically contested, scholars show the many ways in which resistance
occurs.”143 I think that this approach does not take material constraints
seriously. In Stuart Hall’s terms, “[it] replaces the inadequate notions of
ideologies ascribed in blocks to classes with an equally unsatisfactory
‘discursive’ notion which implies total free floatingness of all ideological
elements and discourses.”144
Sympathetic to a discursive approach to social construction, Susan
Silbey maintains that the meanings and values held by social actors “are
never fixed, nor stable, nor unitary.”145 Silbey recognizes, however, that
the possibilities of variation in these meanings and values are limited by
140. PASCALIAN MEDITATIONS, supra note 111, at 174-75.
141. See generally Yngvessson, supra note 36
142. Id. at 1693.
143. Austin Sarat, Redirecting Legal Scholarship in Law Schools, 12 YALE J.L. & HUMAN.
129, 140 (2000); see also MERRY, supra note 6.
144. Stuart Hall, The Problem of Ideology: Marxism Without Guarantees, in STUART HALL:
CRITICAL DIALOGUES IN CULTURAL STUDIES 25, 41 (David Morley & Kuan-hsing Chen eds., 1996).
A similar critique of culturalist positions is found in Nancy Fraser, Social Justice in the Age of
Identity Politics: Redistribution, Recognition, and Participation, in 19 THE TANNER LECTURES ON
HUMAN VALUES 22 (Grethe B. Paterson ed., 1998); see also BURAWOY ET AL., supra note 27.
145. Silbey, supra note 98, at 45.
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the specific circumstances in which each individual finds him or herself.146
But is this sufficient? In LCS, the possibilities of social emancipation and
competition for the benefits of law appear as probable as the possibilities
of social domination. The concept of hegemony becomes malleable and
contingent.147 The position of actors in social space, their economic and
cultural capital, is given short shrift while concentrating on the possibility
that actors oppose or resist power. This almost random account of the
values-consciousness-practice trilogy hides some characteristics that
frequently accompany hegemonic power, for example its persistence
through time, or its success in imposing legitimated social practices in
which stability and the absence of critique are characteristic features.
Concepts like domination and hegemony are frequently employed in LCS,
but they are used in a way that excludes both the ideas of class and the
State. The concept of hegemony seems to evoke the image of a dispute
among equals and of a fight for different meanings rather than the idea of
domination and violence. It is true that occasionally—as Yngvesson has
argued148—the exchange among actors is considered to be an unequal one;
however, it seems that this is only the starting point of the struggle and that
everything could change thereafter. In any case, it is difficult to state the
LCS view on this matter because there is only a resounding silence on the
question. There is a lack of interest in the elucidation of social
asymmetries even as a partial but important source of explanation of the
struggle among different meanings. The problem of power is reduced to
disembodied symbols as if the cultural dimension of power could be
explained by itself. This is why when they develop the idea of symbolic
power, they have in mind the idea of a symbolic power without symbolic
violence. Indeed, insofar as the social and economic location of the actors
in society is not considered, insofar as the socioeconomic hierarchy is not
examined, both domination and resistance are equally possible; I am
tempted to say they are “equally random.”149 Every practice seems to be
reduced to a fight among actors holding different meanings, each of which
could eventually win. It seems as if there are no tendencies in this game,
no hierarchies, no violence. Even the State seems to be only one more
actor playing a game. Every practice is a matter of culture, a matter of
146. Id. at. 46.
147. Handler, supra note 26, at 700.
148. See Yngvesson, supra note 36, 98.
149. MERRY, supra note 6, at 8. See generally, Legal Consciousness, supra note 5. The fact
that people go to court, for instance, is considered as a fact of domination: “freedom from the
control of the community comes at the price of domination by the State, in the form of the court,”
says Sally Merry. MERRY, supra note 6. Given however, their lack of interest in class matters and
local positions of actors in society, they are not able to explain when and how this domination by
courts actually works.
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meaning. The difference between “high” and “low” is therefore erased.150
It is true that agency and meaning are restricted by structures, but these
structures are reduced to discourses and this analysis undermines the
question of why, in a given social reality, only some discourses are
possible.
In short, LCS are interested in people who are usually poor or
marginalized. However, this is an anthropological interest in symbols and
representations rather than a critical interest. Bourdieu is also interested in
social marginalization and domination. However, instead of focusing on
legal consciousness, he is interested in objective relations between people.
”I could twist Hegel’s famous formula and say that the real is relational:
What exist in the social world are relations—not interactions between
agents or intesubjecteive [sic] ties between individuals, but objective
relations which exist ‘independently of individual consciousness and
will’. . . .”151
The disinterest shown by LCS for macrostructural analysis obscures the
underlying factors that determine the relative permanence of social
hierarchy and domination; they give an image of openness, contingency,
mobility, malleability, and indeterminacy to social relations that in fact
does not exist in the United States or anywhere else. One does not have to
be against the dynamic and omnipresent notion of power in
Foucault152—as a critique of the conceptualization of the State as an
institution centralizing power and violence—to recognize that a healthy
chunk of the power in society circulates through state institutions.
It seems to me that domination takes on multiple forms, some of which
are efficacious precisely through an invisible or undetectable state. In
essence it is common for the State—and for law—to exercise its power
through selective doses of intervention or nonintervention in different
spaces and times. Or put another way, institutional power also consists of
150. See generally Yngvesson, supra note 36, at 1689.
151. INVITATION TO REFLECTIVE SOCIOLOGY, supra note 111, at 97.
152. A sort of fascination with the concept of power as developed by Foucault in le
panoptique, is found in LCS. See, e.g., COMMON PLACE, supra note 5, at 188; Legal
Consciousness, supra note 5, at 731; William L.F. Felstiner & Austin Sarat, Enactments of Power
Negotiating Reality and Responsibility in Lawyer-Client Interactions, 77 CORNELL L. REV. 1447
(1992). This enchantment seems to be paradoxical to the extent that the opacity, the submission
even, of social actors to power structures is so characteristic of Foucault’s thought. What happens
is, in North American sociology of law, Foucault’s conception of power is very often taken up only
insofar as it is something fluid, variable, and decentralized, and not as it is shown to be an
omnipresent structure that determines social action. I question whether it is legitimate to dismember
Foucault’s work in this fashion. See Buchanan, supra note 30 (including a more elaborate analysis
of Foucault).
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the selection of which social spaces to protect, which to abandon, which
to liberate, which to oppress, etc.153
V. CONCLUSION
The studies of legal consciousness have the merit of having
demonstrated the complexity and creativity of the legal phenomenon in
individual and collective spheres that, prior to these studies, were only
seen as passive elements of social regulation. It is doubtless that these
studies offer a more highly developed and complex view of the sociolegal
reality. A close reading, however, reveals the lack of critical energy that
some legal studies formerly possessed. A certain domestication of the
critical spirit has occurred, probably unintended, that wrests analytic
strength and interest from the studies of legal consciousness. To what is
this domestication due? More than a decade ago, Trubek and Esser
proposed that the attachment to empiricism was affecting the critical force
of these studies. Without ignoring the merits to their argument, in this
Essay I have attempted to answer this question by following a different
line of reasoning. My argument was organized as follows: first, as a
critique of the LCS idea of abandonment of both the institutional and the
macro-level perspectives in favor of ethnographic local studies; second, as
a postulate of inadequacy of the theoretical model that sustains the studies
undertaken within this micro-perspective.
Concerning the first point, LCS are nourished in the political
commitment of the Critical Theorists as well as the empirical aims of the
L&S founders. Nevertheless, they distance themselves both from CLS and
from the initial tendency of L&S (gap studies). With respect to the first
point, LCS reject the disregard for empirical research and knowledge of
the concrete sociolegal reality (law-in-action). The distance from the latter
is a condemnation of their lack of commitment to a position independent
of the dominant political thought and the circles of power. But the way in
which LCS achieved this double distancing continues to occasion
problems. The excessive emphasis placed on the constituted character of
the social world dilutes the distinction between the exterior and interior of
subjectivity in such a way that the critique loses its referent. Everything is
reduced to a scattered and random set of consciousnesses and social
practices that practically explain themselves tautologically.
A very high price to pay for the “institutionalist errors” of policy
studies: the absence of a macrosociological lens lessens the capacity to
“see” and analyze genuinely efficacious emancipatory options for the
153. Boaventura Santos, Bogotá: Uniandes, Siglo del Hombre, in EL CALEIDOSCOPIA DE LAS
JUSTICIAS EN COLOMBIA (2001).
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excluded. The mental representation of reality leaves aside, or at least
underestimates, the ideological influence of state entities on individual
consciousness. In this fashion topics such as social action/agency, the
fragmentation of power, and individual resistance end up cloaking issues
such as class domination, hegemony, and alienation. The constructive
nature of social action is so strong that it overshadows its structured
dimension; in this way the macro-level of hegemony is hidden and the
classist connotation of symbolic violence is cancelled out.
In the second place, the study of consciousness and concrete legal
practices lacks a sufficiently clear theoretical framework. There seems to
be a certain incompatibility between a constructivist or interpretivist
theoretical model and empirical research. This disagreement could be
based on the fact that the former appears, at least at times, to be grounded
in social presuppositions close to those of the conflict tradition, while the
latter appears to be associated with a microinteractionist tradition that
gives the subject a central role in social organization. In the more specific
terms of this Essay, the problem occurs because the theoretical agreement
around the notion that the symbolic as an essential element in law hides
fundamental differences in the way that this idea is conceived and
employed by authors belonging to different sociological traditions. The
way that the LCS explain both the concept of “legal consciousness” and
the symbolic vision of law fits better in constructivist theoretical models,
particularly ethnomethodological theories, than in those developed by
Bourdieu, Giddens, or Touraine, where the symbolic is treated not only as
“symbolic vision,” but also and especially—due to its affinity with conflict
theory—as “symbolic strategy” or “symbolic uses.”
Symbolic force—Bourdieu says—that of a performative
utterance, and specially of an order, is a form of power which
is exercised in bodies, directly and as if by magic, without
any physical constraint; but the magic works only on the basis
of previously constituted dispositions, which it “triggers” like
springs.154
Of course, a certain empathy exists between the explication of the
domestication of critique as an effect of empiricism, such as Trubek and
Esser argue, and this more general hypothesis of the lack of fit between
theoretical model and research. I think, however, that we do not argue the
same point and in fact the explanations are not even similar, one being
more particular and the other more general. My point is that empiricism in
L&S has a conservative character, not because the researchers are
conservative or because its use in the explication of reality prevents
154. La noblesse d’etat, supra note 118, at 169.
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investigators from adopting a critical stance, but rather due to the type of
empirical investigation prevailing there. This type of research—unlike
others155—is linked to a theoretical tradition that concentrates on the
creative potential of social action in such a way that the connection
between agency and structure violates the spirit claimed by the
constructivist model.
To sum up, I think that this argument is explained less as an
epistemological problem of truth—objectivist versus interpretivist—than
as a problem of political presupposition in social theory. In the case of the
LCS this problem is manifested in a type of empirical investigation that
accentuates aspects related to agency, constructive capacities, and
resistance, at the expense of a social theory inclined to put the emphasis
on conflict, hierarchy, and structure. It is worth noticing that this
difference between conflict theory and constitutive theory exists despite
their agreement on the necessity to overcome the agency/structure
dichotomy or the objectivism/subjectivism dualism. In other words, I
claim that LCS have not succeeded in their purpose to overcome the
agency/structure dichotomy and that this is due to the fact that they do not
sufficiently consider the analysis of the social reality under which legal
consciousness is produced and reproduced in society, the analysis of, as
Bourdieu says, the “social construction of the principles of construction of
that reality” which is implemented in social practices.
The exigency of theoretical coherence in the model adopted, in very
vague terms to be sure, by the LCS, posits a dilemma. One possibility is
to uphold a constitutive theory of a culturalist stripe–which goes from
Clifford Geertz to Paul Kahn—according to which local actors in specific
discursive or symbolic social contexts in which plurality, contingency, and
indeterminacy engage in practices of social construction. In this case my
view is that all reference to authors such as Bourdieu, Giddens, or
Touraine should be abandoned. Another possibility is to take seriously the
structural aspect in social construction, which means taking on the
challenge of both 1) the tension between attempts at social change that
155. For example, those of Bourdieu. See also BOAVENTURA DE SOUSA SANTOS, TOWARD A
NEW COMMON SENSE: LAW, SCIENCE AND POLITICS IN THE PARADIGMATIC TRANSITION (1995);
PATRICIA WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS (1991) (discussing feminist studies);
Menkel-Meadow, Feminist Legal Theory, Critical Legal Studies, and Legal Education or “The
Fem-Crits Go to Law School,” 38 J. LEGAL EDUC. 61 (1988); Martha Minow, Interpreting Rights:
An Essay for Robert Cover, 96 YALE L.J. 1860 (1987); Robin West, Jurisprudence and Gender,
55 U. CHI. L. REV. 1 (1988). For critical studies of race see, Kimberle Williams Crenshaw, Race,
Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101
HARV. L. REV. (1988). For Latino studies, see Margaret E. Montoya, Law and Language(s): Image,
Integration and Innovation, 7 LA RAZA L.J. 147 (1994); Francisco Valdes, Theorizing “OutCrit”
Theories: Coalitional Method and Comparative Jurisprudential Experience—RaceCrits,
QueerCrits and LatCrits, 53 U. MIAMI L. REV. 1265 (1999).
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start from individual or collective action and the barriers, sometimes
insurmountable, that inhibit those emancipatory endeavors, and 2) the
tension between the micro-level of social action and the macro or
institutional level. I think that a critical vision of law, such as that
attempted in the studies of legal consciousness,156 would have much more
chance to prosper on this micro/macro terrain.157 In sociolegal terms, it
would be then a question of combining the symbolic vision of law,
inherent in all constitutive social theories, and which is not called into
question here, with a theory of the symbolic strategy as a political
instrument, whether it be of domination or of social emancipation. But
clearly this task will not be an easy one and still lies ahead.
156. See McCann & March, supra note 4, at 209.
157. A good example of the theoretical connection between micro and macro can be seen in
the concept of the “extended case method,” developed by Michael Burawoy; such a method
“attempts to elaborate the effects of the ‘macro’ on the ‘micro.’ It requires that we specify some
particular feature of the social situation that requires explanation by reference to particular forces
external to itself.” BURAWOY ET AL., supra note 27, at 9; see also ADVANCES IN SOCIAL THEORY
AND METHODOLOGY, supra note 27. Concerning socio-legal studies, Santos develops a complex
macro/micro framework for the explanation of the role law plays in society as well as for
overcoming the dichotomy agency/structure. DE SOUSA SANTOS, supra note 134, at 275.
OLD LAW IN THE NEW WORLD: SOLÓRZANO AND THE
ANALOGICAL CONSTRUCTION OF LEGAL IDENTITY
Susan Scafidi*
I.
TERRA INCOGNITA LEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
II.
EUROPEAN SOURCES OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . 193
III.
LAW IN THE INDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
IV.
LAW FOR THE INDIANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
A. Historical Debate: Indian Identity and Legal Status . . . . . 198
B. Solórzano’s Synthesis: Miserabiles Personae . . . . . . . . . . 199
V.
ON ANALOGICAL REASONING . . . . . . . . . . . . . . . . . . . . . . . . . 202
VI.
CHECKING THE REARVIEW MIRROR . . . . . . . . . . . . . . . . . . . . 204
Over 500 years ago, a small band of Europeans sailed past the borders
of the map, encountered a previously unknown land and peoples—and
sought legal advice on how to proceed. The initial response, from royal
financiers of the voyage and their ecclesiastical supporters, focused on
gaining control of the new territory by claiming responsibility for its
inhabitants. Despite the juridical consensus surrounding this approach,
however, it required a century and a half of experimentation and debate
before one jurist was able to classify the identity of these new “subjects”
within the expansionist empire.
* Assistant Professor of Law, Adjunct Assistant Professor of History, Southern Methodist
University. In researching this Essay, a thumbnail sketch of a larger, ongoing project, I have
incurred many debts of gratitude: to the Honorable Morris S. Arnold; to University of Chicago
Professors Kathleen N. Conzen, R.H. Helmholz, and William J. Novak; to Professor Laurent
Mayali and the extraordinary staff of the Robbins Collection, Boalt Hall School of Law, University
of California, Berkeley, for generous financial and research assistance (and a memorable birthday
celebration); to Assistant Curator and Research Librarian Walter Brem and the staff of the Bancroft
Library, University of California, Berkeley; to Professor David Weber and SMU’s William P.
Clements Center for Southwest Studies for encouragement and an accompanying travel grant; to
Professor Berta Hernandez-Truyol and her colleagues at the University of Florida for coordinating
LatCrit VI; to Professors Kevin Johnson, Tayyab Mahmud, Camille Nelson, Ofelia Schutte, and
Stephanie Wildman for commenting on my conference presentation; to SMU’s University Research
Council and Robert Dedman School of Law for research grants; and to fellow SMU Law Professors
William Bridge; Joseph W. McKnight, III; Mary Spector; and especially my esteemed colleague
Jeff Trexler. Thank you all.
191
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I. TERRA INCOGNITA LEX1
Modern civic identity in the Western Hemisphere flows from the
original fifteenth century collision between Native American2 peoples of
the Caribbean and European explorers sailing under the Spanish flag.
Shortly after this unexpected event, European legal advisors turned to the
familiar language of medieval jurisprudence to assert sovereign control
over the previously unknown territory.3 In order to apply these legal
principles, the jurists first required a means of bridging the situational gap
between the Old World and the New. Just as metaphor provided a vehicle
for European explorers attempting to describe an unfamiliar continent, so
legal analogy offered an apparent means to equate portions of the
established legal order with the newly incorporated elements. Analogical
reasoning, designed to expand Spanish influence, thus provided the basis
for a new world order, aspects of which continue to inform the relationship
between national governments and indigenous peoples.4
The initial sequence of European law’s transplantation to the Americas
is fairly straightforward. First contact between Indians and Europeans
yielded a series of descriptions intended for the royal financiers of the
voyage. The news of potentially valuable lands prompted Spain to stake
a legal claim, preferably through arguments sufficient to exclude other
European competitors. This claim, while aimed at the territory itself,
necessarily included a characterization of Spain’s relationship with the
native inhabitants.
The ius commune, however, lacked a provision for newly “discovered”
peoples. They were neither Christian allies, nor Spanish subjects, nor
Muslim infidels. While they might be captured as slaves, such trade would
not support Spain’s exclusive claim to the new lands. Medieval experience
did allow their designation as objects of missionary activity, with an eye
to conquering them should such overtures be refused. Yet even apparently
1. Unknown land, unknown law.
2. At the risk of anachronism, the terms “Native American,” “Indian,” and “native or
indigenous peoples” appear interchangeably throughout this Essay to describe the pre-contact
inhabitants of the Americas and their descendants. Similarly, as modern scholarship appears to lack
a culturally neutral term for the territory explored and occupied by European powers from the late
fifteenth century onward, the terms “Americas,” “Western hemisphere,” “New World,” and
“Indies” appear throughout the work.
3. See generally ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL
THOUGHT: DISCOURSES OF CONQUEST (1990).
4. See, e.g., Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823). While Chief Justice John
Marshall does not refer in his decision to European civil law or to the European jurists cited by the
parties, his characterization of Native American tribes as “dependent” is strikingly similar to the
conclusions of Spanish jurists. Id. at 596. For a useful collection of Latin American constitutional
provisions and legislation regarding indigenous peoples, see DERECHOS DE LOS PUEBLOS
INDIGENAS: LEGISLACIÓN EN AMERICA LATINA (Gisela González Guerra ed., 1999).
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successful conversion seemed insufficient to prompt recognition of these
“gentle, naked” people as full-fledged Spaniards.
Complicating these attempts at legal classification was European
recognition of social classes, and in particular a ruling elite, among Native
American groups. As a practical matter, many Spaniards viewed influence
over and exploitation of Indian leaders as a strategy for controlling the
native population as a whole. Treatment of native elites as equal partners,
however, would undermine Spain’s claim to the territory. The problem of
Native American legal status under European law remained ambiguous for
over a century, despite persistent discussion of colonial exploitation and
the periodic appearance of ineffective royal laws prohibiting such
behavior.
This Essay examines the efforts of seventeenth-century Spanish jurist
Juan de Solórzano Pereira to clarify Native American legal identity within
the Spanish social order through the use of legal analogy.5 Part II describes
Solórzano’s legal education and the sources of law that he brought to bear
on the problems of the Americas. In Part III, the Essay follows Solórzano
to his Peruvian post and outlines changes in the colonial legal regime. Part
IV returns to the discussion of indigenous legal status, outlining the early
debates, and then focusing on Solórzano’s use of analogy to identify
Indians as “miserabiles personae,” a category including widows, orphans,
and other persons similarly in need of special protection under the law.
Although this classification of Indians among the dependent members of
European society endured through the end of Spanish colonial rule and
was consistent with the royal claim to the territory of New Spain, the
analogy ultimately proved insufficiently flexible to adapt to actual
circumstances. Part V briefly reviews both the attacks of Critical Legal
theorists on the validity of analogical reasoning and recent defenses of this
venerable method of legal analysis, as well as cognitive bases of metaphor
and analogy. Finally, Part VI offers preliminary conclusions about
Solórzano’s use of analogical reasoning to construct indigenous peoples’
Western legal status and invites further discussion.
II. EUROPEAN SOURCES OF LAW
Juan de Solórzano Pereira was born in Madrid in 1575. His mother and
father, both Old Spanish petty nobility, were from the university towns of
Valladolid and Salamanca, respectively. At approximately age 12,
5. In terms of methodology, this Essay combines a legal history narrative with legal
realism’s insights regarding the importance of agency and forms of legal reasoning. Critical Legal
Studies, and thus LatCrit, is one of several branches of modern jurisprudence that traces its
intellectual lineage to the realists. See NEIL DUXBURY, PATTERNS OF AMERICAN JURISPRUDENCE
435-50 (1995); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1870-1960: THE
CRISIS OF LEGAL ORTHODOXY 269-72 (1992).
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Solórzano followed his father into the legal profession, enrolling at the
University of Salamanca, the peninsula’s most distinguished legal faculty.
He graduated in 1599 and began teaching shortly thereafter, receiving the
advanced degree of Doctor of Laws in 1608.6 This traditional legal
education formed the core of Solórzano’s jurisprudence.
When Solórzano was a law student, the standard curriculum covered
the ius commune, or law common to all of Europe, rather than local or
national Spanish law.7 Although medieval and early modern jurists treated
the ius commune in many respects as one system,8 it actually consisted of
two distinct branches.9 The first was Roman or civil law, based on the
Emperor Justinian’s sixth-century Corpus iuris civilis, a landmark
compilation of laws and legal scholarship.10 In the late eleventh century,
the legal community rediscovered the Digest, the section of Justinian that
excerpted and organized by subject matter the writings of great Roman
jurists.11 This rediscovery led to the establishment of law schools across
Europe and the rapid diffusion of Roman law.12 So highly regarded was the
Corpus iuris civilis, that jurists assumed it to contain sufficient material to
resolve any given legal question,13 and centuries later still referred to it as
“written reason”—although this reverence for the text did not deter
multiple and competing schools of interpretation.14 Indeed, the Spanish
government’s attempt, over a century after Solórzano’s graduation, to
force universities to replace the Roman law-based curriculum with
national law was met with such resistance from professors that the order
was ultimately repealed.15
The second branch of the ius commune was canon or ecclesiastical law,
which included Biblical passages, statements of Church councils, writings
of Church fathers, Papal decisions, and other materials among its
6. For basic biographies of Solórzano, see JAVIER MALAGÓN & JOSÉ M. OTS CAPDEQUÍ,
SOLÓRZANO Y LA POLITICA INDIANA 7-40 (1965); JOSÉ TORRE REVELLO, ENSAYO BIOGRÁFICO
SOBRE JUAN DE SOLÓRZANO PEREIRA 15-25 (1929). Note that while modern orthography renders
his patronymic as “Pereira,” it often appears as “Pereyra” in historical documents.
7. See MANLIO BELLOMO, THE COMMON LEGAL PAST OF EUROPE 1000-1800, at 124-25
(Lydia G. Cochrane trans., Catholic Univ. of Am. Press 1995) (1988) (noting the limited legal
curricula of late medieval and early modern universities); 1 ALFONSO GARCIA-GALLO, MANUAL
DE HISTORIA DEL DERECHO ESPAÑOL §§ 599-603 (10th ed. 1984) (describing twelfth through
seventeenth century universities, with emphasis on the legal curriculum in Spain).
8. PETER STEIN, ROMAN LAW IN EUROPEAN HISTORY 52 (1999).
9. See id. at 49-52.
10. Id. at 35.
11. Id. at 43.
12. Id. at 52-53.
13. Id. at 46.
14. See BELLOMO, supra note 7, at 224-25 (describing various approaches to the study of the
ius commune).
15. STEIN, supra note 8, at 106.
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authoritative texts.16 In the early twelfth century, a scholar named Gratian
attempted to organize this unwieldy mass of material in his Concordia
discordantium canonum, or Harmony of conflicting canons, and began to
use the volume as a textbook for law students.17 Over the course of the
twelfth and thirteenth centuries, scholars updated Gratian’s work with
additional compilations, and the resulting authoritative collection of
ecclesiastical law became known as the Corpus iuris canonici.18 Although
many students, like Solórzano, were not members of the clergy, it
nevertheless became common for their university degrees to reflect
certification in both civil and canon law.19
While the universities of Solórzano’s era taught the “learned law,”
Spanish lawyers conducted the quotidian legal business of the empire
according to more localized rules. Collected royal legislation received
greatest deference, supplemented by local municipal charters or custom as
necessary.20 Only when these sources failed to address a particular issue
were lawyers and judges to apply Roman law, preferably by reference to
the Siete Partidas, a thirteenth century vernacular text commissioned to
introduce Roman and canon law principles into the peninsula.21 The
influence of the ius commune was not limited to the interstices of positive
law, however, as educated jurists looked to broader currents of European
jurisprudence in matters of procedure and interpretation.22 Solórzano’s
legal education, while devoid of practical experience, thus prepared him
to engage in critical analysis of legal issues according to the highest
standards of the seventeenth century European legal community.
III. LAW IN THE INDIES
In 1609, one year after completing his doctoral degree, Solórzano
received a judicial appointment as oidor of the Royal Audiencia of Lima,
and the following year set sail for the Americas.23 He remained in that post
16. Id. at 49. For an accessible English-language description of the historical development
of canon law and its significance in Western jurisprudence, see JAMES A. BRUNDAGE, MEDIEVAL
CANON LAW (1995).
17. STEIN, supra note 8, at 49; BRUNDAGE, supra note 16, at 47-49. Modern scholars express
disagreement as to Gratian’s identity, as well as the original date and content of what is often called
simply Gratian’s Decretum. See also ANDERS WINROTH, THE MAKING OF GRATIAN’S DECRETUM
(2000).
18. STEIN, supra note 8, at 50-51.
19. Id. at 52.
20. CHARLES R. CUTTER, THE LEGAL CULTURE OF NORTHERN NEW SPAIN, 1700-1810, at 3132 (1995).
21. Id. at 32.
22. See STEIN, supra note 8, at 66 (describing the gradual acceptance of the Siete Partidas
among professionally trained judges).
23. MALAGÓN & CAPDEQUÍ, supra note 6, at 14-15. For a glossary of terms intended to make
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for eighteen years, during which he married a criolla of a distinguished
family and witnessed the birth of eight children.24 This overseas
assignment might have proven routine and unimportant; after all, over a
century had passed since first contact between Native Americans and
Europeans, and many of the major public debates had given way to
established institutions. Instead, subsequent changes in the laws of the
Indies allowed Solórzano’s Peruvian experience to form the basis for a
lasting contribution to Spanish colonial jurisprudence.
Upon Solórzano’s arrival in Lima, the system of governance combined
the laws of Castile, which exercised claim to the region, with both royal
decrees regarding the Indies and local regulations created by European
officials and settlers.25 The Spanish legal system also recognized
indigenous law and custom, so long as they conflicted with neither
Christianity nor European law.26 Solórzano’s position as a judge required
consideration of all of these sources of law, as well as facility in
determining which to apply. In 1614, however, King Philip III replaced
this extant patchwork of peninsular and colonial laws with a decree that
only laws formulated specifically for the New World or adopted by the
Council of the Indies would have force there.27 The declaration placed
Solórzano at the forefront of a major reorganization of Spanish colonial
law.
Over the course of his career in the royal service, Solórzano became
not only an authoritative commentator on the laws of the Indies under
Spanish rule, but also a participant in the reorganization of those laws. His
first major commentary and legal defense of imperialism, De Indiarum
Iure, appeared in 1629, shortly after his return to Madrid; the second
volume of this work followed ten years later.28 In addition to this Latin
text, Solórzano, in 1647, published Política Indiana, a modified version
in Spanish intended for wider distribution.29 Both the Latin and the
the history of Latin American law accessible to English-speaking scholars, see M.C. Mirow, Latin
American Legal History: Some Essential Spanish Terms, 12 LA RAZA L.J. 43 (2001).
24. MALAGÓN & CAPDEQUÍ, supra note 6, at 16.
25. CUTTER, supra note 20, at 32; GARCIA-GALLO, supra note 7, § 777.
28. See ANTHONY PAGDEN, LORDS OF ALL THE WORLD: IDEOLOGIES OF EMPIRE IN SPAIN,
BRITAIN AND FRANCE C. 1500-C. 1800, at 98 (1995) (noting that Solórzano’s work offers a defense
of imperial ideology grounded in both scholasticism and Roman law).
29. JAMES MULDOON, THE AMERICAS IN THE SPANISH WORLD ORDER: THE JUSTIFICATION
FOR CONQUEST IN THE SEVENTEENTH CENTURY 10 (1994). Muldoon notes that Solórzano was
ordered to remove certain detailed royal orders against mistreatment of Indians from the manuscript
of Política Indiana in order to prevent these official descriptions of mistreatment from drawing the
attention of other European powers. Id. (quoting LEWIS HANKE, THE SPANISH STRUGGLE FOR
JUSTICE IN THE CONQUEST OF AMERICA 90 (1949)).
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Spanish versions of Solórzano’s work circulated widely throughout the
New World and were reprinted several times during the seventeenth and
eighteenth centuries.30
While Solórzano also played a major role in collecting and
rationalizing the laws of the Indies following the 1614 decree, that project
did not proceed as expeditiously as the publication of his scholarly
commentaries. The Council of the Indies, including Solórzano himself,
approved an early version in 1636.31 The official text of the Recopilación
de leyes de las Indias, however, was not promulgated until 1680, some
twenty-five years after Solórzano’s death.32 The fortuitous timing of
Solórzano’s judicial appointment, together with a traditional legal
education that informed his analysis of colonial jurisprudence,
nevertheless secured his position as an influential force in the history of
Latin American law.
IV. LAW FOR THE INDIANS
As Solórzano worked to construct what became the definitive legal
argument for Spanish activities in the New World, one of the major
unresolved issues was the legal “status” of Native Americans within
Spanish society. Despite a century of debate, including significant currents
of thought that emerged from Solórzano’s own alma mater, a mass of ad
hoc legal enactments governed Indian-European interactions. Diversity
among indigenous peoples and changing demographics further
complicated the search for a unified legal structure. Lima, for example,
was a city of 60,000 people, of whom 30,000 were slaves of African
descent, 25,000 were considered Spanish, and a mere 5,000 were Indians.33
While the daily life of an indio compelled to render service to the Spanish
state may have been little different from that of an esclavo, Indians were
nevertheless a separate group from slaves, who were treated as chattels,
and were subject to different rules. Solórzano’s attempts to articulate a
precise classification of this distinct minority group within the formalist
Spanish legal system formed an important part of his work, and one that
may offer insight into the deepest roots of the modern legal identity of
indigenous peoples in the Americas.
30. MULDOON, supra note 29, at 10.
31. See GARCIA-GALLO, supra note 7, § 785 (describing the series of efforts that led to the
promulgation of the Recopilación).
32. Id.
33. MALAGÓN & CAPDEQUÍ, supra note 6, at 18.
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A. Historical Debate: Indian Identity and Legal Status
From Queen Isabella’s frequently quoted reprimand of Columbus for
attempting to initiate a slave trade in her Native American “vassals,”34 to
the famous debates between Bartolomé de Las Casas and Juan Ginés de
Sepúlveda at Valladolid,35 early European attempts to characterize the
previously unknown American peoples polarized the empire. The first
eyewitness report from the “Indies,” the widely circulated letter attributed
to Columbus, enthusiastically described many of the native peoples as
gentle, unsophisticated, unclothed, and lacking in any “ill-will [or]
treachery.”36 By contrast, the letter also warned against certain islands
inhabited by armed cannibals.37 Although simplistic and inaccurate,
Columbus’s words laid the foundations for two competing theories
regarding the nature of the Indians: either they were “noble savages,”
endowed with a wide range of simple virtues, or they were mere “beasts,”
greedy, savage, and idolatrous.38 More informed, moderate, and nuanced
ethnographic information would gradually inform this national debate, in
part through the testimony of indigenous peoples themselves, but the
argument’s general parameters influenced royal policy throughout the
colonial period.
The intensity of the debate might have waned in the decades following
first contact between Native Americans and Europeans were it not for the
political and theological ramifications of the issue. Spain had predicated
its original claim to territory in the New World on a missionary “duty” to
subject the Indians to Christian rule and thus convert them. In the 1493
bull Inter caetera, the Pope recognized this claim and assigned a large
portion of the region and its inhabitants to Castile. This constructed
understanding of the Spanish presence in the Americas led directly to the
encomienda system, which entrusted groups of Indians to individual
Spaniards who were responsible for their religious and cultural training
and protection.39 In practice, the system allowed an encomendero to exact
heavy tributes from “his” (or occasionally her) Indians, and fostered many
of the abuses of chattel slavery, including removal from home villages and
34. HANKE, supra note 29, at 20.
35. Id. at 11. For the arguments of Las Casas, see BARTOLOMÉ DE LAS CASAS, IN DEFENSE
OF THE INDIANS (1992).
36. Margarita Zamora, Christopher Columbus’s “Letter to the Sovereigns”: Announcing the
Discovery, in NEW WORLD ENCOUNTERS 1, 4 (Stephen Greenblatt ed., 1993).
37. Id. at 8.
38. See HANKE, supra note 29, at 11-12 (describing the sixteenth century conflict regarding
the nature of the Indians).
39. See generally LESLEY BYRD SIMPSON, THE ENCOMIENDA IN NEW SPAIN: THE BEGINNING
OF SPANISH MEXICO (1966).
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forced labor. Although the crown issued a steady stream of decrees
designed to curb the atrocities of the colonists,40 many believed that the
Indians’ “brutish” or “barbaric” nature required subjugation through harsh
controls.41 Those on the other side of the debate, including the Dominican
and former encomendero Bartolomé de Las Casas, supported a policy of
converting the “docile and clever” native peoples to Christianity through
teaching and persuasion.42 Beliefs regarding the nature and character of
Native Americans were thus central to Spain’s Catholic religious identity
and exercise of imperial power.
In the realm of academia, the sixteenth century debate over the “nature”
of the Indians led to a new union of jurisprudence and theology centered
at the University of Salamanca. Its leading proponent was the Dominican
theologian Francisco de Vitoria, who believed that law should interpret
and reflect the divine will apparent in nature, including the unequal status
of persons.43 This theory supported both the need for governmental
structures and the exercise of power over individuals, such as the
encomienda system. Vitoria also argued, however, that the Church did not
exercise universal temporal authority over nonbelievers, and that Spain
required grounds other than the 1493 papal donation for its claims in the
New World—a point of view shared by competing European powers.44
Lawful control over non-Christian lands might instead, in Vitoria’s view,
arise from the need to exercise moderate force in order to preach the
gospel.45 Since this argument focused on nonbelievers’ receptivity to
Christianity, and on the potential use of just war in the service of
missionary activity, it once again drew attention to the essential question
of the Indians’ character and normative legal status.
B. Solórzano’s Synthesis: Miserabiles Personae
The value of Solórzano’s treatment of the issue of Native American
legal status, and of colonial jurisprudence more generally, lay not in
original argument or polemical description but in an orderly approach to
harmonizing a century of debate and ad hoc decrees with pre-existing legal
structures. His Política Indiana consists of six books, the first of which
addresses the threshold question of Spanish title to the Indies, while the
second turns to the question of indigenous status. After discussing specific
forms of labor and desired conditions, Solórzano concluded “[t]hat the
Indians are and should be counted among those persons whom the law
40.
41.
42.
43.
44.
45.
See generally RECOPILACIÓN DE LEYES DE LOS REYNOS DE LAS INDIAS 1681 (1987).
LAS CASAS, supra note 35, at 11-16.
Id. at 362.
BELLOMO, supra note 7, at 226-28.
HANKE, supra note 29, at 150-52.
Id. at 151.
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calls miserables . . . .”46 In this context, the term is categorical rather than
merely descriptive. While Solórzano did consider many Indians to be
among the “poor and wretched” of the earth, comparing them to Job and
other suffering Biblical figures,47 his primary intent as a jurist was to
establish for them a definitive legal status, in this case the canonical
category known in Latin as miserabiles personae.
In order to rationalize the existing body of Indian law according to the
principles of the ius commune, Solórzano’s preliminary task was to assign
a group identity.48 Rather than rely directly on his own impressions from
nearly two decades in the Audiencia of Lima, he cited other authors to
describe both the Native Americans’ “humble, servile, and submissive
condition”49 and, even when their suffering did not reach Biblical
proportions, their position as recent converts was noted for “ignorance,
lack of sophistication, poverty, and faintheartedness.”50 Solórzano went on
to discuss the Indians’ need for protection against mistreatment, not only
for their own benefit but also because they are the “feet” of the republic
without which it cannot stand.51 Largely absent from this account is
consideration of hispanicized indios ladinos, including those who were
able to win small but significant victories within the Spanish system of
justice52 or compose a book-length work intended to inform the crown of
colonial abuses.53 Instead, Solórzano relied on his elite, educated
perspective to gather documentary evidence characterizing Native
Americans as a relatively homogenous group in need of Spanish
protection.
Once Solórzano had established a working description of Indian
identity, he was able to assign the group to an existing category of
European law. According to the canonists, the Church had a special duty
to protect miserabiles personae, a term used to describe widows and
46. JUAN SOLÓRZANO PEREYRA, POLÍTICA INDIANA 2.28 (Francisco Tomás Valiente & Ana
María Barrero eds., Biblioteca Castro 1996) (1647) (author’s translation) [hereinafter POLÍTICA
INDIANA].
47. Id. at 2.28.2.
48. See Laurent Mayali, Le droit des autres dan la France médiévale: Système de
différenciation et mode d’harmonisation, in IDENTITÉ ET DROIT DE L’AUTRE 183, 183 (Laurent
Mayali ed., 1994) (noting that while approaches to the issue differ across legal systems, the initial
problem is defined in terms of identity).
49. POLÍTICA INDIANA, supra note 46, at 2.28.1.
52. See, e.g., STEVE J. STERN, PERU’S INDIAN PEOPLES AND THE CHALLENGE OF SPANISH
CONQUEST: HUAMANGA TO 1640, at 114-37 (2d ed. 1993) (describing Indians’ successful use of
the court system to, inter alia, reduce payment of tributes and pursue land claims).
53. See generally ROLENA ADORNO, GUAMAN POMA: WRITING AND RESISTANCE IN
COLONIAL PERU (2d ed. 2000) (analyzing the work of sixteenth and seventeenth century Native
American author Felipe Guaman Poma de Ayala).
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orphans in particular, as well as those who were old, blind, mutilated,
worn-down by long sickness, or poor and oppressed in general.54 The
breadth of this category, which Solórzano defined simply as “all those
whom we naturally pity because of their status, capacity, and labors,”55
could easily accommodate an additional group characterized by their
alleged need for protection. By analogy, then, the indigenous peoples of
the Americas became miserabiles personae, and the Spanish government
acted as their guardians on behalf of the Catholic Church.
Although the purported benefits of this dependent status under canon
law were limited, Solórzano compiled a wider range of legal “protections”
on the basis of existing colonial laws. Traditionally, miserabiles personae
enjoyed only the option of bringing their cases directly before an
ecclesiastical court rather than seeking justice in the secular realm.56
Influential commentary on the law, however, suggested that this special
original jurisdiction would apply only if the litigant were actually poor and
powerless; wealthy widows and others who were technically miserabiles
but not in actual need of protection could appeal to the Church only after
failing in the first instance to obtain justice from a secular court.57
Ordinary litigants, by contrast, could appeal to ecclesiastical courts only
as a last resort after exhausting all avenues of secular justice.58 In his
expansion and adaptation of the concept of miserabiles personae, the
former oidor did not limit himself to shifting jurisdiction away from the
royal courts, in which he had once served, to potentially more sympathetic
ecclesiastical courts. Instead, he focused on guidelines for judicial
treatment of Native Americans and specific provisions drawn from both
Roman and canon law. Among these were the admonition “that trials and
court cases involving Indians, especially poor ones, be concluded quickly
and with paternal love,”59 limitations on contractual capacity intended to
protect against alienation of goods,60 and the presence of “protectors” to
provide legal assistance.61 Later, in the third book of Política Indiana,
Solórzano employed a similar method to support the continuance of the
encomienda system while reasserting the importance of safeguards against
abuse. This reinterpretation of the duty owed to miserabiles personae
allowed Solórzano to collect many of the ad hoc royal protections and
54. BRIAN TIERNEY, MEDIEVAL POOR LAW: A SKETCH OF CANONICAL THEORY AND ITS
APPLICATION IN ENGLAND 15-19 (1959) (citing Decretum Gratian, Dist. 84 ante c. 1; Innocent IV,
Commentaria ad X 1.29.38).
55. POLÍTICA INDIANA, supra note 46, at 2.28.1 (author’s translation).
56. TIERNEY, supra note 54.
57. Id. at 18-19 (citing Innocent IV, Commentaria ad X 1.29.3).
58. Id.
59. POLÍTICA INDIANA, supra note 46, at 2.28.27 (author’s translation).
60. POLÍTICA INDIANA, supra note 46, at 2.28.42-45.
61. POLÍTICA INDIANA, supra note 46, at 2.28.46-52.
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reforms of the first century and a half of Spanish colonial law under the
umbrella of the ius commune.
Using legal analogy and the analytical techniques of the learned law,
Solórzano incorporated the original inhabitants of the New World into the
jurisprudence of the old, establishing an Indian identity and formal legal
status that would endure for another 150 years.
V. ON ANALOGICAL REASONING
Although analogy is a venerable method of legal reasoning, its validity
has been challenged in recent years. Roberto Unger and other Critical
Legal theorists have argued that analogical reasoning is incoherent outside
its own cultural context, and thus incapable of yielding just results in a
heterogeneous society.62 Quite so, since epithets such as “childlike” or
“savage” are likely to mean very different things in different cultures, and
near-nudity on Caribbean beaches today is unlikely to justify foreign
conquest. By this account, Solórzano’s use of analogy to categorize
peoples and govern lands largely foreign to him is extremely suspect.
As one modern judge has pointed out, however, the use of legal
analogy remains in good repute among members of the bar, and thus in
little danger of disappearance.63 Cognitive science, moreover,
demonstrates that human beings have an innate tendency to analogize and
to create categories; in other words, analogical reasoning is part of human
hardwiring.64 In light of these twin pillars of tradition and nature
supporting the continued use of legal analogy, the contemporary legal
community may enjoy more success if it attempts to re-examine this
62. See, e.g., Roberto Mangabeira Unger, The Critical Legal Studies Movement, 96 HARV.
L. REV. 561, 570 (1983).
63. Robert E. Keeton, Statutory Analogy, Purpose, and Policy in Legal Reasoning: Live
Lobsters and a Tiger Cub in the Park, 52 MD. L. REV. 1192, 1213 (1993).
64. Keith J. Holyoak et al., Introduction: The Place of Analogy in Cognition, in THE
ANALOGICAL MIND: PERSPECTIVES FROM COGNITIVE SCIENCE 1, 2 (Dedre Gentner et al. eds.,
2001). An approachable introduction to the realm of metaphor and cognitive thought is GEORGE
LAKOFF & MARK JOHNSON, METAPHORS WE LIVE BY (1980). Other recent works exploring
analogical reasoning from a variety of perspectives include METAPHOR AND THOUGHT (Andrew
Ortony ed., 1993) (indicating a cross-disciplinary collection of essays); KEITH J. HOLYOAK & PAUL
THAGARD, MENTAL LEAPS: ANALOGY IN CREATIVE THOUGHT (1995) (noting an extended account
of the mechanism and applications of analogy); GEORGE LAKOFF & MARK JOHNSON, PHILOSOPHY
IN THE FLESH: THE EMBODIED MIND AND ITS CHALLENGE TO WESTERN THOUGHT (1999) (wideranging exploration of the relationship between the embodied mind and philosophical inquiry); and
BARBARA MARIA STAFFORD, VISUAL ANALOGY: CONSCIOUSNESS AS THE ART OF CONNECTING
(1999) (noting an account of analogy from the perspective of an art historian).
In addition, a related legal study on employment discrimination offers an in-depth exploration
of the relationship between cognitive processes of categorization and formation of potentially
harmful stereotypes. Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias
Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161 (1995).
2003]
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method of reasoning rather than simply overturning it. Essential to this
enterprise are two questions: Are there benefits to analogical reasoning,
particularly in the construction of socio-legal identity? And, is it possible
to circumvent its parochial tendencies?
Cass Sunstein has provided a moderate defense of analogical reasoning,
albeit while claiming a preference for Rawlsian “reflective equilibrium,”65
and Solórzano’s seventeenth-century attempt to rationalize Native
American legal status according to the norms of his era offers a
hypothetical object for this new perspective. Sunstein identifies several
benefits to the use of legal analogy, all stemming from the “incomplete
theorization” of analogical reasoning. Two of these potential benefits are
particularly applicable to the issue of indigenous legal status under Spanish
colonial rule. The first significant advantage is that those who cannot reach
agreement on general principles may be able to agree on the outcome of
a particular case through legal analogy.66 This formulation suggests that in
the Americas, decades of debate over the essential identity of the Indians
might have been circumvented by an earlier appeal to legal analogy. It is
plausible to imagine that Dominican friars like Las Casas seeking fair
treatment for Native Americans under the law and royal governors seeking
to police the abuses of the encomienda system in order to avoid
international disapprobation might agree that Indians seeking access to
justice would need special protection, not unlike the existing categories of
miserabiles personae, even if they could not reach immediate agreement
as to the Indians’ nature and character.
The second significant advantage is that analogical reasoning allows
moral evaluation over time because it is open to new facts and
perspectives,67 at least when unencumbered by the fixed categories of a
formalist legal system. In Spanish colonial terms, it is possible that the
steadily increasing ability of many disempowered groups of people,
including Indians, to exercise influence and to assert their limited rights
within the legal system might have prompted a revision of Solórzano’s
analogy. To speculate further, it is possible that such a revised analogy
might have led to a more inclusive formulation of Spanish citizenship, or
even the possibility of multiple group affiliations, rather than a series of
revolutions against an oppressive colonial power.
Legal analogy is a basic tool from the lawyer’s workbench, and one
that we need to examine further, rather than unsuccessfully attempt to
65. Cass R. Sunstein, On Analogical Reasoning, 106 HARV. L. REV. 741, 751 (1993). For
another analysis and reconsideration of legal analogy, see Scott Brewer, Exemplary Reasoning:
Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, 109 HARV. L. REV.
925 (1996).
66. Sunstein, supra note 65, at 782.
67. Id.
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discard, in order to avoid cultural incomprehensibility or oppression. In the
context of socio-legal identity, an important threshold issue is whether and
how a legal system focused on individual rights can also be capable of
protecting group identity. If legal analogy appears to be an avenue for such
protection, jurists must attempt to ensure that the modern realist legal
system is flexible enough to protect groups of people without reifying
them. Perhaps most importantly, if legal analogy is used to define sociolegal categories, the law must provide for group boundaries to remain
permeable and group identity to retain the opportunity to evolve.
VI. CHECKING THE REARVIEW MIRROR
In the mid-seventeenth century, an ordinary Spanish civil service
lawyer undertook to situate the indigenous peoples of the Americas within
the established categories of the formalist European legal system, an
organizational task that had thus far eluded a society preoccupied by the
complexities and opportunities of a newly “discovered” world. Reasoning
from time-honored principles of medieval law, he discovered that legal
analogy would allow him to identify Native Americans with the poor,
wretched members of European society. Analogy ossified into a set of
rules and expectations, and Indians—elite and otherwise—became wards
to be educated and protected by guardians under the special protection of
the Spanish legal system. This compact legal theorem, though
inconsistently applied at the local level, gave the crown claim to the
“Indies” and reclassified the native population as eligible for membership
in a dependent class of Spanish subjects. As one might predict of the
construction of a subordinate group within a formalist legal system,
however, one inconsistency still remained: the apparent lack of a
mechanism to ensure full participation in society when the characteristics
used to justify dependency had dissipated. Eventually, this legal rigidity
contributed to the crumbling of the entire colonial system.
By attempting to apply the rule of law to a rapidly growing and
changing sphere of influence through the use of analogical reasoning,
Spain accepted a challenge familiar to both ancient and modern legal
systems. Its resulting legal process displayed many evident flaws, in
particular the near-complete absence of indigenous participation. The
historical evolution of this jurisprudence, alongside an early national
debate surrounding the construction of an empire incorporating multiple
populations, is nevertheless a significant and overlooked chapter in the
evolution of Western law.
CLUSTER II
CUBANS WITHOUT BORDERS: THE POSSIBLE DREAM
Alice G. Abreu*
Cubans are nothing if not bordered. Cubans on the island are not free
to go out and Cubans off the island are not free to come in. Nevertheless,
these borders, once seen as rigid and legally defined, are increasingly
being revealed as both porous and malleable. Cubans living in the United
States send massive amounts of aid to Cubans on the island, usually
prompted by familial concern, but undermining the border imposed by the
embargo all the same.1 Travel to Cuba, while nominally prohibited, is
possible with Treasury Department permission and that permission is
rather routinely granted.2 Travel from Cuba, while also nominally
* Professor of Law, Temple University School of Law. I am grateful for the unwavering
support of my friend Berta Esperanza Hernández-Truyol, and for the time, energy and wisdom of
the scholars who participated in the panel on Cubans Without Borders at LatCrit VI. I also
appreciate the thoughtful participation of those in the audience during that session, some of whom
have contributed essays to this Symposium growing out of the discussions of the panel. Finally, I
am grateful for the excellent research assistance provided by John Necci, Director, Temple Law
School Library. Nevertheless, all errors and opinions are mine alone.
1. See, e.g., Roxana Hegeman, Exiles Prop Up Cuban Economy by Sending Money to
Families, ASSOC. PRESS, Nov. 28, 1997, available at http://www.athensnewspapers.com/1997/
112897/ 1128.a3cuba.html. See also Berta Esperanza Hernández-Truyol, Out in Left Field: Cuba’s
Post-Cold War Strikeout, 18 FORDHAM INT’L L.J. 15, 69-70 n.299-301 (1994) and sources cited
therein. The Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, Pub. L. No. 104114, 110 Stat. 785 (1996) (often refered to to as the Helms-Burton Act, because it was sponsored
by Senator Jesse Helms and Congressman Dan Burton), prohibits many forms of commercial trade
and travel to Cuba. See generally id. For a good summary of the the history of the Act and the
provisions therein, see Andreas F. Lowenfeld, The Cuban Liberty and Democratic Solidarity
(Libertad) Act: Congress and Cuba: The Helms-Burton Act, 90 AM. J. INT’L L. 419, 420 n.8-12
(1996) (noting that restrictions on travel to and commerce with Cuba have been in effect since
February 1962, when President Kennedy authorized the issuance of the Cuban Import Regulations,
31 C.F.R. § 515.201, 27 Fed. Reg. 1116 (Feb. 7, 1962), exercising the authority given to him by
the Foreign Assistance Act of 1961, (Pub. L. No. 87-195) § 620(a), 22 U.S.C. § 2370(a)(1) (2000)).
2. For a general description of the restrictions and the process for obtaining permission to
visit Cuba, see Cuba—Consular Information Sheet (Dep’t State, Aug. 13, 2001), available at
http://travel.state.gov/cuba.html (last visited Mar. 14, 2002); Travel to Cuba, at
http://state.gov/www/regions/wha/cuba/travel.html (last visited Mar. 14, 2002); Cuba Travel
Violations: New Procedures for Fully Hosted Travelers, available at http://www.state.gov/
www/regions/wha/fs_980513_cuba_travel.html (last visited Mar. 14, 2002) (Fact Sheet prepared
by the Office of the Coordinator for Cuban Affairs, Bureau of Inter-American Affairs, May 13,
1998) (Dep’t State, May 13, 1998). Despite attempts to lift the embargo, see, e.g., House Passes
Bill Lifting Ban on Travel to Cuba, WASH. POST, July 26, 2001, at A2, and some softening of the
restrictions, see, e.g., Christopher Marquis, Congressional Leaders Approve a Deal to Allow Food
Sales to Cuba, N.Y. TIMES, Sept. 28, 2001, at A25, significant restrictions remain.
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restricted, occurs frequently, as the island exports its music and dance, and
some Cubans are given permission to study and work abroad.3
The plight of a six-year old boy found floating on an inner tube off the
coast of Florida on Thanksgiving Day, 1999, forced a concerted
examination of the contours of the borders that for over forty years have
defined Cubans both on and off the island. The controversy surrounding
Elian Gonzales and whether he should be allowed to remain in the United
States or be forcibly returned to Cuba riveted the attention of the news
media in the United States and polarized the Cuban exile community.
Nevertheless, this cluster of essays is not about the plight of Elian. While
Elian inspired the introspection that is reflected in this cluster, and the
essays collected here are the product of that introspection, we do not, here,
re-engage in that debate. Elian catapulted Cubans and the borders that
divide us into the national consciousness and in doing so caused many of
us to think more seriously about dismantling those borders. Elian’s plight
offers a lens through which we can view many experiences of the last forty
years.
As mature, educated scholars, those of us who have lived with these
borders for over forty years are poised to take a leadership role in pointing
the way to reunification. We have been the beneficiaries of a liberal, and
in some cases also a legal, education; and most of us left Cuba when we
were old enough to remember it. Thus we struggle with a dual sense of
loss. The loss is dual because not only did we lose the opportunity to grow
up in our homeland, but because for a long time we lacked the opportunity
to find out for ourselves what our homeland was really like, or at least
what it would “really” feel like to us. As the borders between Cuba and the
United States have become increasingly porous, the opportunity to remedy
the second loss has grown and has been enhanced by the receptivity to new
and alternative ideas that is often the product of a liberal, and perhaps
especially a legal, education. Although none of us may really be able to go
home again, many of us are trying, and in doing so we are beginning to
point the way toward reconciliation and reunification. This cluster of
essays represents one attempt at that endeavor.
3. The Cubans Without Borders panel at LatCrit VI provided evidence of this. Among us
was Jesus Jambrina, a Cuban journalist who had received permission from the Cuban government
to study in the United States. Although the Cuban government eased travel restrictions in 1991, and
artists and others seem to be able to travel outside of Cuba at will, travel is particularly difficult for
certain professionals, particularly physicians. For a description of the Cuban government’s
legislation and policies concerning travel abroad by Cubans, see Hernández-Truyol, supra note 1,
at 68 n.291-92, and the U.S. State Department’s Country Reports on Human Rights Practices 2001,
(Bureau of Democracy, Human Rights, and Labor Mar. 4, 2002), available at
http://www.state.gov/g/drl/rls/hrrpt/2001/wha/8333.htm.
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207
Each of the essays in this cluster describes both division and unity. The
authors, all born in Cuba, each discuss a division and analyze the ways in
which the division can be healed. They bring their personal experiences to
bear on the analysis, sometimes overtly, sometimes not. Still, division and
reunification are the themes of the essays. We are divided in the way we
perceive ourselves, and in the dual ways we are, in turn, perceived: we are
and are seen as dual-lingual, dual-cultured, and dual-citizens—neither fish
nor fowl.4 On a personal level, reunification occurs as we try to unite the
parts on either side of the hyphen that divides the parts of our self. Thus,
we write in both English and Spanish, we travel to Cuba, we take the time
to know island Cubans as people rather than caricatures, and in doing so
we hope to arrive at an understanding that respects the wounds of the past
while acknowledging the differences of the present.
Of the paths to reunification, traveling to Cuba—transcending the
physical border—is the most concrete but, in many ways, the most
difficult. The mere prospect of such travel can pit members of a family
against one another and cause wounds deeper than many inflicted by Fidel
himself, as the controversy over Elian showed. Traveling to
Cuba—returning—is loaded with symbolic meaning not only for Elian but
for each of us as well. Although for some it symbolizes reunification, for
others it symbolizes acceptance of communism and Fidel, and acceptance
is a tribute that many see as incompatible with the repudiation that
prompted exile in the first place. Although some parents who left
everything behind while fleeing Fidel are pleased to hear that their
children have not repudiated their birthplace but want to return and learn
about their homeland, others see in the act of returning a rejection of the
principles that led them to emigrate so many years before. The physical
border has become symbolic of the ideological border, and crossing one
can be seen as tantamount to crossing the other.
Perhaps one of the reasons the Elian episode elicited such strong
emotions is that it conflated the crossing of the physical border—returning
Elian—with the crossing of the ideological border—accepting Fidel’s
regime. Those who opposed the return of Elian almost certainly did not
oppose it because they thought boys should be raised by cousins rather
than fathers or because they thought that Elian’s father was an unfit parent.
They opposed Elian’s return because it was a return to Cuba; returning him
from the United States was seen as acknowledging that at least in some
cases, it was better to be in Cuba than in the United States. For many in
exile who left everything behind to come from Cuba to the United States,
4. As Myra Mendible observes in Paradise Lost, Paradise Found: Oral Histories and the
Formation of Cuban Identities, 55 FLA. L. REV. 269 (2003), we are members of the “one-and-ahalf” generation who are, “in Gustavo Perez Firmat’s catchy phrase, ‘born in Cuba, made in the
U.S.A.’” Id.
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to suggest that living in Cuba might be preferable to living in the United
States was to impugn the sacrifice they made when they left Cuba to come
to the United States. The Elian controversy thus represented much more
than a custody fight over a little boy. Only that understanding explains the
vehemence of the feelings so graphically documented by the United States
media.
The conflation of the physical border with the ideological one also
revealed the bipolar nature of the ideological division. Just as one can be
only on one side or another of the physical border, so, ideologically,
Castro’s revolution has largely been viewed as either good or bad. In the
United States, where the Cuban revolution has been both the darling of
liberals and the bane of conservatives, nuanced analysis has been virtually
nonexistent. The Cuban community has also suffered from monovision.
Among many in the Cuban-exile community, the issues have been too
emotionally charged to permit nuanced analysis, and the Elian controversy
was no exception. For many in that community, Fidel is the devil
incarnate, period.
Ironically, one of the things that Cuban exiles have in common with
Fidel is the bipolar way in which each views the revolution. For both
exiles and Fidel the revolution was either good or bad. Nothing in-between
is conceivable. For Fidel, any expression of dissent from a revolutionary
goal or deed is regarded as counter-revolutionary, is decidedly bad, and is
sometimes dangerous to the health or life of the disagreer.5 For an exile,
any expression of agreement with a revolutionary goal or deed proves that
the agreer is a communista or Castrista and is, therefore, presumptively
bad.6 No in-betweens are brokered by either side. Yet, it is from the inbetween that reconciliation must come. Only after a more nuanced analysis
that recognizes the existence of both good and bad on each side can the
sides come together.
5. The Cuban government’s repression of dissenting views has been widely documented and
often criticized. See, e.g., Cuba’s Repressive Machinery, Human Rights Forty Years After the
Revolution (Human Rights Watch, June 1999), available at http://www.hrw.org/reports/1999/cuba;
Hernandez-Truyol, supra note 1, at 80-94. As recently as April, 2002, the United Nations
Commission for Human Rights encouraged “the Government of Cuba to accede to the International
Covenant on Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights” and to “allow the United Nations High Commissioner for Human Rights to send
a personal representative with a view to cooperation between her Office and the Government of
Cuba in the implementation of the present resolution.” Situation of Human Rights in Cuba, U.N.
Comm’n on Human Rts., 48th Sess., U.N. Doc. E/2002/23-E/CN.4/2002/200 (2002), available at
http://www.unhchr.ch/huridocda/huridoca.nsf.
6. For a chilling description of the strength of this reaction, see Francisco Valdes, Diaspora
and Deadlock, Miami and Havana: Coming to Terms with Dreams and Dogmas, 55 FLA. L. REV.
283 n.30 (2003), describing how a well-known Miami restaurant was bombed after it allowed a
Cuban singer (from the island) to perform.
2003]
209
An analysis that examines nuances would acknowledge that Castro’s
revolution did things that were both good and bad. It would neither
demonize nor cannonize, but would instead acknowledge the pain of those
who left while validating the accomplishments of some who stayed.
Validation of the experiences of those on both sides of the border is crucial
to reunification. Reunifcation cannot occur if we simply tell those who fled
under threats of persecution, or those who lost friends and loved ones to
human rights abuses, that bygones should be bygones because more than
forty years have elapsed. We cannot ask people to forget what they gave
up. Acknowledging the exiles’ sacrifice is necessary if we are to move
toward dismantling the bipolar border and embark on a path to
reunification. But, acknowledging that Castro’s revolution did good things
is also important. Accepting that he improved literacy and health care for
the general population need not signify acceptance of all of the means he
used to effect such improvement, but must occur if we are to pave the way
to a more sophisticated, more realistic understanding of circumstances on
the island.7
Traveling to Cuba or returning Elian each provide a point of departure
for this more nuanced analysis, perhaps because the choices in each
situation are starkly bipolar. The Cubans Without Borders panel at LatCrit
VI was a microcosm of this polarity and the ways to move beyond it. It
revealed the diversity of the Cuban experience and the paths both
communities can take toward reconciliation.
Of the seven members of the Cubans Without Borders panel at LatCrit
VI only one, me, who organized the panel, had neither returned nor
attempted to return to Cuba. By contrast, Professor Yvonne Tamayo was
the most recent returnee, having made her first trip to Cuba just weeks
7. Improved literacy and healthcare have long been cited as the most significant
accomplishments of the revolution. See, e.g., Hernandez Truyol, supra note 1, at 21-29; Jim Lobe,
Learn From Cuba, Says World Bank, INTER PRESS SERV., Apr. 30, 2001, at
http://www.foodfirst.org/cuba/news/2001/wb-ips.html (describing World Bank President James
Wolfenshohn’s comments on the significant progress made by Cuba on health and education). Its
reduction in infant mortality rates “places it firmly in the ranks of the western industrialised
nations,” and in education performance Cuba “‘is very much in tune with the developed world, and
much higher than schools in, say, Argentina, Brazil, or Chile.’” Id. (quoting Jo Ritzen). Cuba’s
gains in health and education are probably due to the commitment of fiscal resources to those areas.
Thus,
[p]ublic spending on education in Cuba amounts to about 6.7 percent of gross
national income, twice the proportion in other Latin American and Carribean
countries and even Singapore . . . . Cuba devoted 9.1 percent of its gross domestic
product (GDP) during the 1990s to health care, roughly equivalent to Canada’s
rate. Its ratio of 5.3 doctors per 1,000 people was the highest in the world.
Id.
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before LatCrit VI, and Jesus Jambrina was the only island-raised Cuban
among us. Both Professor Myra Mendible and Judge Ana Otero had
returned, and Professor Berta Esperanza Hernández-Truyol had attempted
to return, only to be foiled by bureaucracy, as she describes in the essay
that she wrote for this Symposium. Of the two other contributors to this
Symposium, Professor Ofelia Schutte has returned often, while Professor
Francisco Valdes has not.
Despite the differences in our choices, what emerged from our planning
discussions, the panel presentations themselves, and the reflections
memorialized in the essays that compose this cluster and other
submissions to this Symposium, was the similarity in our longings and our
fears. I, having not returned, can understand Yvonne’s desire to return and
to see for herself, through the eyes of an adult, the country in which she
was born and that shaped much of who she is. Yvonne, who has so
recently returned, can understand my deference to the feelings of my
parents, who would see my return as a betrayal of the principles that they
stood for when they left, and as a repudiation of the decision they made by
leaving. We can both understand how difficult it will be for Jesus to decide
whether to return to Cuba once his authorized stay in the United States has
finished. What we all have in common is that Castro has marked us, and
continues to do so, whether we are here or there.
The key to reunification is recognizing that although the
choices—returning or staying—are bipolar, their implications need not be.
Returning need not mean approval of Castro’s regime. More importantly,
it need not mean that exile, and the pain suffered by exiles who left
everything behind, was in vain. Lasting reconciliation cannot occur unless
pain suffered is acknowledged. Many of the experiences described by the
essays in this cluster, and in this Symposium more generally, illustrate this
point eloquently. In doing so, they show that reunification is possible and
demonstrate how it can be achieved.
In the first essay in this cluster, Professor Berta Esperanza HernándezTruyol begins where many of us do—with her own experience in thinking
about returning to Cuba—and uses it, together with the polarities revealed
by the Elian saga, as a springboard for a critical examination of whether
any common ground of cubanidad might still exist and serve as a platform
for reunification.8 As she explains, she “suspected that while social,
political, and economic differences might result in some insurmountable
divides, cultural tropes might unite us, even if not always through
desirable traditions.”9 In Building Bridges V—Cubans Without Borders:
Mujeres Unidas Por Su Historia, Professor Hernández-Truyol traces the
8. Berta Esperanza Hernández-Truyol, Building Bridges V—Cubans Without Borders:
Mujeres Unidas Por Su Historia, 55 FLA. L. REV. 225 (2003).
9. Id. at 230.
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211
role of women in Cuban society by reviewing Cuba’s laws on women,
international norms on gender equality, and United States, laws as they
affect Cuban women in the United States.10 Surprisingly, she finds that
“cultural assumptions about sex roles have persisted in Cuban societies
whether within the island or in the Cuban community within the U.S.”11
She concludes that “further study is likely to reveal additional
commonalities with respect to attitudes in matters such as family, race, and
sexuality.”12 Her work is thorough and scholarly, and offers a unique view
of a too-long neglected subject. She reveals, for example, that the first
Cuban feminists emerged during the Cuban fight for independence during
the latter part of the nineteenth century, and describes their role not only
in that fight but in crafting laws that would allow women to start on the
path to equality.13 The picture she paints is of brave women who
nevertheless succumb to marianismo and male dominance when the
danger is past.14 The story of women in Cuba today, she finds, is not much
different from that of Cuban women in exile, but her insight is that the
similarity of oppression and subordination can provide the unifying trope
for a post-subordination ideology.15 Her conclusion that the common
experience of sexism can serve as a unifying force is both novel and
inspiring, for, at bottom, it posits that the glass is at least half full.
In the next essay, Paradise Lost, Paradise Found: Oral Histories and
the Formation of Cuban Identities,16 Professor Myra Mendible advances
the cause of mutual understanding by deftly exploring “how conflicts
between Cubans on and off the island boil down to [a] critical intersection
where personal stories assume historical significance.”17 Professor
Mendible offers lessons from post-colonialism and examines the role of
history in defining the condition of exile.18 She describes the role that her
personal history has had in defining her identity and the way she has come
to terms with her condition as “in-between” two cultures.19 She also
examines the way in which such personalized histories have shaped
visions of Havana, both as paradise lost and paradise found.20 Professor
Mendible returned to Havana in search of answers to questions raised by
years of hearing seemingly incomplete versions of history; her essay
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
See generally id.
Id. at 231.
Id.
Id. at 231-32.
See generally id.
See generally id.
See generally Mendible, supra note 4.
Id. at 271.
See generally id.
Id. at 277.
Id. at 271.
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lucidly explains her discoveries.21 We see that the experience of returning
proved transformative, even though it raised more questions than it
answered.22 It gave her a framework upon which to build a more nuanced
understanding of what had previously been “a clear-cut polarity.”23 It can
serve as a model for a more widespread reunification.
Professor Yvonne Tamayo’s reflections on her first trip to Cuba since
leaving as an exile over forty years ago is an example of the kind of
personalized history Professor Mendible urges.24 In Cubans Without
Borders: Finding Home, poignantly subtitled “Everybody Gets To Go
Home But Cubans,” Professor Tamayo describes her return and her
discovery that she and many of the Cubans she met shared some core
values, even as their views on other matters differed.25 Professor Tamayo
was struck both by what has changed and what has not.26 By integrating
what she learned on the island with what she has learned as a United
States-trained lawyer, Professor Tamayo offers a view of how the physical,
intellectual, and emotional borders might be constructively navigated.
Having the occupant of the house that used to belong to her family “slowly
but deliberately” close the door in her face graphically illustrated the
border that made her an outsider in what had been her home, but seeing the
ways in which Cuban families interacted and the reasons many stayed
showed her that in some areas of life, the borders did not exist.27 Her
detailed account of a conversation with a theretofore forbidding Cuban
official shows that many intersections are possible even for those who are
physically and ideologically separated.28 Finding the points of
commonality she shared with island Cubans allowed Professor Tamayo to
see Cubans and their life on the island in a complex, nuanced way.29 Such
a view forecloses the kind of absolutist thinking that led to demonstrations
and violence in Miami over the return of Elian. It points toward
dismantling the borders that now separate us.
The final essay in the cluster, written by Professor Frank Valdes, brings
together the threads explored in the preceding essays, and therefore is the
perfect closing for this cluster. In Diaspora and Deadlock, Miami and
Havana: Coming to Terms with Dreams and Dogmas,30 Professor Valdes
21. Id. at 277-81.
22. Id.
23. Id. at 279.
24. Yvonne A. Tamayo, Cubans Without Borders: Finding Home: “Everybody Gets to Go
Home But Cubans,” 55 FLA. L. REV. 215 (2003).
27. Id. at 218.
28. Id. at 218-20.
30. Valdes, supra note 6.
2003]
213
poignantly describes his own emigration experience and uses it to gain
insights into the polarities that divide Cubans on both sides of the Florida
Straits and on ways of neutralizing those polarities.31 Professor Valdes
begins by describing the polarity that has marked his life, observing that
Because Fidel, and his allies and acolytes, have not-ever-been
willing to risk a loss or diminution of their power and status,
no matter what, I never have found myself able to accept their
extended, indefinite and totalitarian monopoly on all power,
information, and wealth in Cuba. At the same time, I have
been repeatedly disappointed and repelled by the rigid and
unrelenting authoritarianism of Miami’s exile politics—an
Orwellian authoritarianism that is perpetrated in the name of
political pluralism and freedom of expression. Having been
raised amidst the ugliness created between these two
poles—my two hometowns—I have been unable to come to
terms with either.32
Professor Valdes then traces the “post-Fidel Cuban exodus” and analyzes
the contrasts and similarities between the cultures on both sides of the
Florida Straits, sparing neither.33 He also analyzes the effect of United
States politics on the relationship between Cubans in Miami and Havana,
concluding that
[T]he Left’s romance with Havana and disdain for Miami
have produced the same net effect here as the Right’s
romance with Miami and disdain for Havana have produced
over there: the Right’s partisan promotion of the Miami
elites’ agenda nonetheless has allowed the Havana elites to
exacerbate and exploit the fears and concerns of Cubans on
the island as a means of maintaining their corrupt control,
while the Left’s partisan promotion of the Havana elites’
agenda ironically has allowed the Miami elites to excite and
exagerate diasporic fervor and fanaticism . . . . The net effect
of these interventions, both over here and over there, is to
reinforce rigidity, license impunity and inflame conflict. It is
way past time to recognize that both kinds of essentialization,
valorization and demonization are false, exploitative and
destructive.34
31.
32.
33.
34.
See generally id.
Id. at 285 (footnotes omitted).
See id. at 287-89.
Id. at 304-05.
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Professosr Valdes then provides a blueprint for moving to a postsubordination society, both in Miami and in Havana, and concludes with
five LatCrit exhortations that can serve as principles to guide the way to
reunification.35 His essay is insightful and compelling. It invites precisely
the kind of thoughtful and deliberate analysis that is necessary, and it
should inspire scholars from many disciplines to continue the dialog that
will eventually lead to reunification of what he describes as his two
hometowns.
It is because I emphatically agree with Professor Valdes’
characterization of Havana and Miami as our two hometowns, that I want
to conclude this introduction by describing what I learned from Jesus
Jambrina, a Cuban-born and Cuban-educated journalist who was studying
in the United States, and who gave a moving oral presentation (in Spanish,
aided by voluntary simultaneous translation from a member of the
audience), at LatCrit VI. Jesus revealed that within present-day Cuba
itself, there exists a society that is as diverse, and as nuanced, as those
existing outside the island. In discussing issues such as class-based and
racially-based discrimination in Cuba, and talking about the plight of gays,
lesbians, and transsexuals in Cuba, Jesus forced us to see that
contemporary Cuban society is complex and faces many of the challenges
faced by the society located on the other side of the Florida Straits. It is
that more complex, nuanced understanding that will allow Cubans on both
sides of the Straits to go beyond demonizing one another to reach an
individualized understanding that will allow each side to transcend the
borders that now divide us.
This is neither a quixotic undertaking nor an impossible dream. The
fact that nine participants in LatCrit VI have started to work towards it
shows that it can be done. What we need now is more. We need to talk and
write about the borders that separate us and how we can overcome them,
so that we can continue to lead by example. Our pain and the pain of our
parents need not condemn our children to growing up without knowing the
land of their parents, from which, for good or ill, at least some of their
heritage derives.
35. Id. at 313-16.
CUBANS WITHOUT BORDERS: FINDING HOME
“Everybody gets to go home but Cubans”1
Yvonne A. Tamayo*
Recently, I returned to my birthplace of Cuba.2 During spring break of
2001, I, along with twenty-nine of our law school’s faculty, alumni, and
friends, attended a seven-day educational program in Havana entitled
“Cuba for Law Professionals.”3 Because we were permitted entry to Cuba
pursuant to a U.S. Treasury Department license requiring that the program
contain a strong educational component,4 we obtained the cooperation of
the National Union of Cuban Jurists (Union), Cuba’s loose equivalent of
the American Bar Association. The Union is allegedly a non-governmental
organization comprised of Cuban law professors, lawyers, judges,
researchers, and consultants that conduct conferences and symposia to
further the development of the legal profession.5
1. Mireya Navarro, A Return to Cuba, A Search for Himself, N.Y. TIMES, Oct. 21, 2001, §
2, at 6 (quoting Eduardo Machado, author of the play Havana Is Waiting).
* Associate Professor, Willamette University College of Law; J.D., Loyola University
School of Law; B.S., Louisiana State University. I dedicate this Essay to my father, Ignacio J.
Tamayo, for his unwavering support in my journey to finding home. I wish to thank Abbey
Vanderbeek and Carmencita More for their review of prior drafts of this Essay. Financial support
for this research was provided by Willamette University College of Law.
2. See generally Yvonne A. Tamayo, Doing Good While Doing Well in the Twenty-First
Century: One Cuban’s Perspective, 70 FORDHAM L. REV. 1913 (2002).
3. Professor Michael Wise and I, along with the Willamette University College of Law
Alumni Director, conceptualized and developed this program.
4. License No. CU-65453, issued by the Office of Foreign Assets Control, Department of
the Treasury, stated, in pertinent part:
SECTION 2—CONDITION: a) It is a condition of this license that activities
in Cuba fully conform to the educational exchange activities as set forth in your
application.
SECTION 3—RECORDKEEPING REQUIREMENT: The licensed
organization is required to keep a list of individuals whose travel was authorized
under this license. Such records shall be made available for examination upon
demand for at least 5 years from the date of each transaction.
SECTION 4—WARNING: a) This license only authorizes travel-related
transactions in connection with full-time educational exchange activities in Cuba
and does not authorize transactions related to commercial or touristic
activities . . . .
Id.
5. We were given a promotional pamphlet entitled “National Union of Cuban Jurists: NonGovernmental Organization with Consultative Status in the United Nations,” which stated:
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At 10:15 p.m. on March 17, 2001, Taca Airlines flight #8529 smoothly
touched down at Jose Marti International Airport in Havana. I stepped
from the plane onto the metal gangplank and inhaled deeply. The warm,
humid air felt familiar, as if I had been away only a short time. Yet, I had
not been on Cuban soil since my family’s hurried exit from Havana on
April 26, 1960. On that day, my parents, my two brothers, and I left behind
our extended family, our home, our patria.
The first morning in Havana, our group received a detailed outline of
the classes that we would attend. The Union would present, over the course
of four days, seven three-hour lectures on the Cuban legal system.6 The
presentations were held at the Union headquarters, a nondescript white
1950s stucco building located in Miramar, a residential area of Havana.
Probably a former residence, its first floor contained a small interior
courtyard where we took a ten minute break halfway through each lecture.
The breaks were accompanied by welcomed offerings of thick, black café
cubano in thimble-sized paper cups and little golden rectangular cakes
topped with a clear, sweet syrup.
Each day we heard lectures on the Cuban judicial system, penal law,
family law, and Cuba-U.S. relations. I listened with rapt attention as our
hosts delivered long and winding discourses desbordandose7 with
unrelentingly rigid thinking and stale ideology. Questions from our group
often sparked circuitous answers containing preordained rhetoric
unresponsive to the inquiry, and almost always ending with a redundant
reminder that Castro’s Cubans enjoy a high literacy rate and widely
accessible medical care.
The National Union of Cuban Jurists (UNJC) is a non-profit and self-financed
non-governmental organization of Law professionals with its own juridical
personality and a scientific-professional profile . . . . An important role in the
UNJC’s professional activity is played by its Scientific Societies, nationwide
associations created with the common purpose of contributing to develop the
Legal Sciences and practice Law [sic], as well as the professional qualification of
their membership, requested by and granted to those jurists who maintain a salient
professional performance and meet the admission requirements.
NATIONAL UNION OF CUBAN JURISTS, NATIONAL UNION OF CUBAN JURISTS: NON-GOVERNMENTAL
ORGANIZATION WITH CONSULTATIVE STATUS IN THE UNITED NATIONS (on file with author).
6. The lectures were entitled: 1) Introduction to Cuban History and Geography; 2) The
Cuban Legal System: Constitution, Election System; 3) The Cuban Constitution; 4) The Cuban
Legal System: Penal Legislation and Procedure; 5) Cuban Law Studies; 6) Helms-Burton:
Background; and 7) Cuba-U.S. Relations.
7. Desbordandose is derived from the Spanish word desbordamiento, which means “1.
Inundation. 2. Overflowing.” MARIANO VELÁZQUEZ DE LA CADENA ET AL., NEW REVISED
VELAZQUEZ SPANISH AND ENGLISH DICTIONARY 239 (1966).
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217
I noted that not one of the speakers brought any written notes to aid in
their presentations. I wondered why, and then concluded that decades of
repetition, without change or innovation, adhered their respective
discourses to memory, rendering written notes superfluous. I also observed
that for emphasis, Union members often shook their right hand index
fingers in an up-and-down motion, a gesture for which Fidel Castro is
widely known.
By the third day, my internal response to the lectures was consistent: I
vacillated between incredulousness at the message, contempt for the
messengers, and pity for the human beings. In their well-worn clothes and
dusty shoes, the Cuban jurists resembled old, tired puppets defending a
failed social experiment. It was clear that Castro’s repressive authority has
created an insular population that seems stuck, frozen in time, living an
enigmatic existence akin to a forty-three year quarantine from the rest of
the world.
Unlike the presentations’ rehearsed rhetoric, lunchtime afforded me a
chance for one-on-one repartee with our Cuban hosts. Each day at noon,
our tour bus transported us to a different Cuban restaurant, but the
offerings varied only slightly: chicken or pork cooked with a lemony mojo
criollo,8 white rice, a salad of sliced tomatoes, shredded cabbage and
sometimes, a wedge of lime. Dessert usually consisted of a scoop of vanilla
ice cream, followed by Cuban coffee.
During my chats with the Union panelists, talk of family subtly but
persistently entered our conversations. When I asked about her life on the
island, the sole woman in the group quickly responded that “la vida aquí
no es fácil, pero por lo menos tengo cerca a mi hijo y nieto.”9 Another
Union member explained, in broken English, that although Cuba’s
“situation” is not good, he remains to care for his eighty-five-year-old
mother: “You don’t uproot old trees,” he whispered intently.
Walking through the streets of Havana, displays of familial bonds were
abundant. On Sunday morning, a teenage girl and her boyfriend, plus her
parents, strolled together towards la catedral, arms all interlocked. A
young man drove an ancient Packard onto el malecón boulevard. Next to
him snugly sat a young girl and Mami, while the back seat remained empty.
On a street corner, a middle-aged man repeatedly kissed his mother on her
left cheek before boarding an overcrowded public bus.
While in Havana, I attempted to visit my family’s residence, where I
lived until age five. A woman answered my knock on the front door. She
seemed to be of middle-age and had a pleasant face. Nervously, I greeted
her with “hola.” I quickly explained that the house had been my family’s
8. Mojo criollo is a mixture of garlic, bitter orange, lemon, and pepper used to marinade
meats in Cuban dishes.
9. “Life here is not easy, but at least my son and grandson are near me.”
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home until 1960 when we left Cuba, and asked if I could view the inside
of it. “Por favor,” I continued, “quisiera poder contarle a mi padre en
Miami que visité nuestra casa en Cuba.”10 She smiled, hesitatingly, and
without a word slowly but deliberately closed the door.11 I was flooded
with sadness. Nonetheless, I smiled at the irony of the situation—I had
finally returned home, but I was not welcome there, not even as a visitor.
On the day of the final lecture, the Union jurists staged a fiestesita12 for
us. They served cubes of yellow cheese and green olives on small white
styrofoam plates and drinks of rum and cola. An aging boom box played
a feisty Cuban salsa, and soon some of our group members began dancing
to the music. Looking around, I spotted one of the jurists standing alone,
apart from the festivities. During that day’s lecture, he had quietly sat at the
panelists’ table, looking bored, perhaps even angry. Inexplicably, I now felt
drawn to this seemingly inhospitable man. I approached him and in
Spanish, I introduced myself. He looked at me intently, then asked if I was
Cuban. I answered yes, and explained that since our departure in 1960,
none of my family had returned to the island. The following exchange
ensued:
¿Te costó trabajo poder venir a Cuba?
Vine bajo permiso de grupo educacionál, pero me costó un
poco mas trabajo conseguir mi visa. Porque soy nacida en
Cuba, tuve que presentar cinco fotos personales, aunque al
resto del grupo le pidieron solamente dos. También tuve que
presentar un documento contestando varias preguntas sobre
mi familia y las circumstancias de nuestra salida de Cuba.
¿Donde vivía tu familia?
En el Vedado.
¿Visitaste tu casa?
Traté de visitarla, pero la sen#ora que vive ahí no me dejó
entrar.
10. “Please, I would like to tell my father in Miami about my visit to our home in Cuba.”
11. Our tour guide explained that Castro has frightened much of the Cuban population by
“warning” them against an alleged plot by the U.S. government and exiled Cubans to reclaim the
exiles’ homes and evict the present occupants.
12. “Little party.”
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219
¿Que irónico verdad? Durante tantos an#os no pudiste
regresar a tu patria- por fin lo logras, y aun no puedes entrar
en tu casa. ¿Piensas volvér a Cuba?
Sí, me gustaría regresar.
Te doy un consejo- no te limites en poder imaginar que un día
podrás volver a tu patria, a tu casa, facilmente y sin
problemas.
Espero que tengas razón.13
My conversation with the angry jurist was surprising and insightful. At
first, we had been strangers with seemingly irremediable differences. Yet,
despite the ideological polarities between us, our personal exchange had
engendered mutual good will.
Our week in Havana passed quickly. Too soon it was time to leave. On
our last day in Cuba, we traveled to the countryside. The arching palm
trees, rolling green hills, and lush foliage welcomed me. Among the
13.
Was it difficult for you to gain entry into Cuba?
I traveled under an educational permit, but it was a bit more difficult obtaining my
visa. Because I was born in Cuba, I had to submit five personal photographs,
while the rest of the group members were only asked for two. Also, I had to
submit a document providing answers to questions about my family and the
circumstances surrounding our exit from Cuba.
Where did your family live?
In the Vedado neighborhood.
Did you visit your home?
I attempted to visit, but the woman who lives there did not let me enter.
Isn’t that ironic? For many years, you cannot return to your homeland—finally,
you are able to travel here, and still you cannot enter your home. Do you plan to
return to Cuba?
Yes, I’d like to return.
I’ll give you some advice—don’t limit yourself in your ability to imagine that one
day you will return to your homeland, to your home, easily and without problems.
I hope you’re right.
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verdant scene, I noticed aging billboards proclaiming Patria o
Muerte14—they repelled me. Then, as a huge orange sun set in a
spectacular purple and pink sky, and the bus headed to the airport, our tour
guide nodded towards the horizon, and smiled. Softly, she said “Goodbye,
Havana.”
On the return flight, my thoughts drifted to Elian Gonzalez, the young
boy who roused the long-entrenched discordance between exiled and island
Cubans. Elian’s story is by now familiar: a risky pre-dawn escape from the
island on a flimsy boat; the sudden, violent death of Elian’s mother,
Elizabeth Brotons, leaving her son alone; and, finally, Elian’s heroic
rescue, bringing him to freedom in the United States. I remembered the
Cuban community’s response to the prospect of Elian’s return to Cuba. It
was a deeply emotional, extraordinarily vocal, and highly public
expression of anger, sadness, and despair. Repeatedly, I had been struck by
the sharp tone and brazen, uncompromising words employed by some
Miami Cubans. On one occasion, Elian’s uncle Lazaro Gonzalez stood
outside his home surrounded by a Cuban crowd shouting “War! War!
War!”, and defiantly stated that “(t)hey will have to take this child from me
by force[!]”15 The intransigence resonated not only in Gonzalez’ strident
vow to keep Elian, but also in Miami-Dade Mayor Alex Penelas’
announcement that local law enforcement officers would not aid a federal
attempt at forcefully retrieving Elian from Lazaro’s home.16
Gonzalez and Penelas’ provocative declarations reflected the
sentiments of many Cuban exiles, some of whom held around-the-clock
vigils outside of Gonzalez’ home.17 The events that followed Elian’s
rescue, replete with mass protests and violence leading to the arrest of
approximately three hundred and fifty Cubans, exposed some Miami
Cubans as unreasonable, unyielding, even hysterical.18
14. “Homeland or Death” is a slogan of Castro’s revolution.
15. Elian’s Relatives Lose in Battle of the Videos, S.F. CHRON., Apr. 14, 2000, at A28.
16. Castro’s Promise: Elian’s Dad, Family Will Come to U.S., NEWSDAY, Mar. 30, 2000,
at A03.
17. Miami Cubans’ opinions on Elian’s fate were overwhelmingly uniform. Ninety-one
percent of Cubans polled in South Florida thought that Elian should remain in the United States.
Oscar Corral, Miami Tangled in Memories, NEWSDAY, Apr. 15, 2000, at A22. Conversely, eightyfour percent of the non-Cuban community opined that Elian should return to Cuba. See id.
18. Sue Anne Pressley, In Little Havana, Mourning Subdued Crowd Shows Up at House
Where Elian Lived, WASH. POST, June 2, 2000, at A20. One political group, the “Cuban Force,”
publicly urged Cubans to withdraw their money from U.S. banks in protest of adverse court rulings
in the Elian case. Id.
One newspaper described the Cuban community’s behavior during Elian’s stay in Miami as
follows:
[T]he policy grip of the fanatical anti-Castro lobby, led by the Cuban
American National Foundation which financed and often dictated the strategy,
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I also recalled the morning of Saturday, April 21, 2000, when I first saw
video clips of the FBI’s pre-dawn raid on Lazaro Gonzalez’ home. I stood
transfixed, as the television screamed with eerie footage of a terrified Elian
being whisked from Gonzalez’ little white house into a van filled with
hooded men armed with machine guns. The swift, sudden, and violent
extraction of Elian from Little Havana marked the culmination of his
tumultuous five month stay in the U.S.
Elian’s arrival and subsequent departure from the United States
unearthed many Cuban exiles’ deep feelings of loss. Regarding the Miami
exile community’s longstanding sentiments, one author has written:
The exile’s grief for the Cuba that had been lost was an all but
inescapable part of the ambient noise of Cuban Miami. For all
its glittering appurtenances, its prosperity, and, at times, its
self-satisfaction, there was a level on which no pleasure, no
level of attainment, nor any material accumulation could
make up for what had been taken away from these exiles by
the triumph of Fidel Castro.19
Elian exposed the wounds of Castro’s revolution. Specifically, he
disinterred memories of the forced disformation of Cuban families.
One example of Cubans’ desperate response to Castro’s coercion of
Cuban families was the covert “Operation Pedro Pan.” In 1961, a rumor
spread throughout the island that Castro was planning to deport school-age
children to the Soviet Union for communist indoctrination. As a result,
desperate parents who were denied exit visas placed their young children,
alone, on commercial flights from Havana to Miami. In total, 14,048
children were separated from their parents in a frantic exodus to escape the
movements and statements of Elian’s Miami relatives, as it has done over the years
for so many elected officials and policy makers, is now at its weakest.
Having . . . turned Elian into the human symbol of its vitriol against Castro’s
Cuba . . . the hard-line exile community has utterly exposed itself in front of the
United States and international community.
In a supreme effort to use Elian to isolate Castro, the Cuban-American hardliners have successfully isolated themselves.
....
The strident politics of the Elian case have weakened the Cuban-American grip on
U.S. policy . . . .
Clinton’s Chance on Cuban Policy, BALT. SUN, Apr. 30, 2000, at 1C.
Arguably, the death of Jorge Mas Canosa, the founder of the powerful political group “Cuban
American National Foundation” precipitated a division among the Cuban ranks in Miami that was
magnified during the Elian controversy, and that damaged the group’s public image. David Adams,
Cuban Exile Group Loses Host, ST. PETERSBURG TIMES, July 21, 2001, at 2A.
19. DAVID RIEFF, THE EXILE: CUBA IN THE HEART OF MIAMI 64 (1993).
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threat of Fidel Castro’s regime.20 The Cuban children were dispersed to
foster homes, or remained in orphanages while they waited months, or
years, for their parents to join them in the United States.21 Unlike the Pedro
Pan children, however, the reformation of Elian’s family would occur not
in this country, but in Cuba.
On my visit to Cuba, I experienced, first-hand, the polarization between
Cubans within and Cubans outside the island. In spite of their differences,
however, I discovered keen similarities between the two groups. Cubans
on both sides of the Florida Straits are strikingly similar in their fierce
family loyalties. The uninhibited displays of love and loyalty that I
witnessed by Cubans towards their families abundantly resonated with my
own experiences among my own, and other, exiled Cuban families.
Regarding those who create and influence policy in Cuba and the
United States, Professor Frank Valdes has observed the existing parallels:
The “Havana elites” encompass primarily the circles of
power that control the two overlapping institutions that
authoritatively and forcefully supervise all life within Cuba:
the government and the party, including those . . . officials
with the power to conduct economic and political relations
with the world external to the island. The “Miami elites”
encompass a loose assemblage of [businessmen] . . . and
politicos . . . who have amassed [wealth] or position in this
country, and who use their . . . influence strategically and
methodically to promote their . . . struggle against the . . .
economic and political monopoly of Havana’s elites. Both
elites cloak themselves in nationalistic fervor, and invoke it
to mobilize their foot soldiers.22
On the island, Cubans live in insularity and isolation from the rest of the
world. This is largely a result of Castro’s repressive dictatorship, which
deprives Cubans access to news from independent sources, generally bans
travel outside Cuba, and closely monitors the speech and actions of every
Cuban.23 Recently, Castro allowed Granma, the official state-run Cuban
newspaper, to publish President Jimmy Carter’s speech to a Cuban
20. See generaly YVONNE M. CONDE, OPERATION PEDRO PAN: THE UNTOLD EXODUS OF
14,048 CUBAN CHILDREN (1999).
21. Anne Rochell, In the Dawn of Castro’s Cuba, ATLANTA J.-CONST., Feb. 21, 1993, at A1.
22. Francisco Valdes, Diaspora and Deadlock, Miami and Havana: Coming to Terms with
Dreams and Dogmas, 55 FLA. L. REV. 283, 288-89 (2003) (footnotes omitted).
23. Cuba’s only newspaper, the government-run Granma, was described by Argentinean
editor Jacobo Timerman as “a degradation of the act of reading.” Christopher Hitchens, Havana
Can Wait, VANITY FAIR, Mar. 1, 2000, at 101. One Cuban succinctly expressed the dearth of
independent news in Cuba by remarking that “if you listen to the radio you don’t need the
newspaper.” Id. at 110.
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audience during his visit to the island. Despite the public criticism by
President Carter of Cuba’s one-party Communist government for denying
basic human freedoms to Cubans, Castro nonetheless allowed the
unprecedented media coverage.24 This unusual gesture, however, was
followed by a sharp reminder of Castro’s ongoing tyranny over Cubans’
lives on the island. In June 2002, Castro called on the National Assembly
to amend Cuba’s constitution and pronounce socialism as “untouchable.”25
Not surprisingly, the referendum passed by a unanimous vote.26
During the past four decades, the United States has reinforced the
isolationist posture of much of the Cuban exile community by refusing to
ease restrictions on commercial, educational, and cultural exchanges
between the two countries. In fact, the U.S. embargo has succeeded in
effectively depriving Cubans of U.S.-exported basic necessities like soap,
medicine, and clothing.27 This harsh measure has fueled an already
acrimonious relationship, and has further decreased the likelihood of
reconciliation between the two countries.
24. In his speech at the University of Havana, President Jimmy Carter stated that “Cuba has
adopted a socialist government where one political party dominates, and people are not permitted
to organize any opposition movements. [Your constitution recognizes freedom of speech and
association, but] other laws deny these freedoms to those who disagree with the government.”
David Gonzalez, In Address to Cuban Nation, Carter Urges Reform, N.Y. TIMES, May 15, 2002,
at 1A.
25. Cristobal Herrera, Cuban Lawmakers: Keep Socialism, MIAMI HERALD, June 26, 2002,
at 3A.
26. Id.
27. In 1996, Congress passed the Cuban Liberty and Democratic Solidarity Act. Cuban
Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, Pub. L. No. 104-114, 110 Stat. 785
(codified as amended in scattered sections of 22 U.S.C.). Commonly referred to as the HelmsBurton Act, the law codified existing federal regulations, and reaffirmed the U.S. embargo against
Cuba under the Trading With the Enemy Act of 1917 and the Cuban Democracy Act of 1992.
The Helms-Burton Act defines “embargo” as including “all restrictions on trade or
transactions with, and travel to or from, Cuba, and all restrictions on transactions in property in
which Cuba or nationals of Cuba have an interest.” Id. § 4(7)(A) (emphasis added).
In summary, the Act provides as follows:
(1) It prohibits loans, credits, or financing by U.S. citizens or residents for
transactions involving nationalized property in Cuba;
(2) It sets out a program whereby the U.S. will remove the trade embargo and
provide economic assistance to Cuba when the President determines that Cuba has
a transitional or democratically-elected government;
(3) U.S. citizens are allowed to sue in the U.S. federal court system anybody who
traffics in U.S. property nationalized by Cuba; Helms-Burton extends this right to
persons who were not U.S. citizens at the time of the expropriation; and
(4) It blocks entry to the U.S. by foreign citizens involved in trafficking with
confiscated property.
Id. §§ 103(a), 104(a), 202(a)(1), 302-304.
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My response to the four-decade-old standoff between Castro and the
exiles is ya basta.28 Polarization must cede to allow movement towards
reconciliation. This, in turn, necessitates desbordamiento, a dis-bordering,
or crossing over the ideological and physical restraints on the Cuban
communities inside and outside of Cuba.
In Miami, the exiles’ public release of deeply-felt, long-held emotions
of anger and sorrow in response to Elian’s rescue and subsequent return to
Cuba is a harbinger of desbordamiento. Post-Elian, a number of powerful
members of the Cuban community have displayed subtle signs of an
increasingly conciliatory tone.29 For the island Cubans, desbordamiento is
a more difficult process, as Castro’s absolute authority over nearly every
aspect of their lives thwarts individual or independent movement towards
that end. It is clear, however, that as they struggle for survival amongst
barren stores, decrepit buildings, and ubiquitous food lines, island Cubans
would benefit in large measure by the dissolution of the borders containing
and restraining them. Perhaps, Castro’s demise will provide opportunities
for reconciliation.
During my trip to Cuba, I experienced ideological contradictions and
conflicting emotions. For the first time, I was compelled to examine my
entrenched feelings about the island and its people. As a result, I know that
I will not find home simply by visiting my family’s former residence. I also
know that during the unguarded lunchtime conversations with the jurists,
and my subsequent exchange with the angry jurist, we transcended our
polarities. In mirroring our similarities and mutual goodwill, those fleeting
but unforgettable exchanges brought me closer to finding home.
28. “Enough, already.”
29. The Miami Herald recently reported that “South Florida is witnessing the ascendancy of
a new Cuban-American leadership intent on improving the community’s image and nurturing better
relations with its non-Cuban neighbors.” Robert L. Steinback, CANF Rift May Open New Doors,
MIAMI HERALD, July 29, 2001, at 1B. Joe Garcia, Executive Director of the Cuban American
National Foundation, told the newspaper that “[t]he ‘we’re right and everyone else be damned’
attitude was fine during the Cold War, but it [became a problem] when our policy perspectives no
longer had the comprehension of the nation.” Id.
In fact, CANF’s new thirty-eight-year-old leader, Jorge Mas Santos, wants to elevate the exile
community’s profile by adopting a political strategy that is representative of the twenty-first
century. Jorge Mas Santos, Two Worlds, Two Cultures, MIAMI HERALD, July 29, 2001, at 1A.
BUILDING BRIDGES V—CUBANS WITHOUT BORDERS:
MUJERES UNIDAS POR SU HISTORIA1
Berta Esperanza Hernández-Truyol*
I.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
II.
A BRIEF HISTORY OF WOMEN IN CUBA . . . . . . . . . . . . . . . . . .
A. Mambisas: The First Women’s Movement in Cuban
Society . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Early Legal Changes Favoring Women . . . . . . . . . . . . . . .
1. Property and Family Rights . . . . . . . . . . . . . . . . . . . . . .
2. The Rights to Vote and to Equality . . . . . . . . . . . . . . . .
C. The Castro Revolution and Beyond . . . . . . . . . . . . . . . . . .
1. Women Join the Fight for Independence . . . . . . . . . . . .
2. Women’s Participation in Education,
Labor, and Politics . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. El Periódo Especial . . . . . . . . . . . . . . . . . . . . . . . . . . . .
231
231
233
233
236
238
239
240
244
III.
OTHER RELEVANT EQUALITY LAWS . . . . . . . . . . . . . . . . . . . . . 245
A. International Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
B. United States Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250
IV.
CULTURE INSIDE AND OUT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
A. The Myth of Women’s Equality in Castro’s Cuba . . . . . . . . 258
B. Inequality en el Exilio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
V.
CONCLUSION: EQUALITY AND CULTURE . . . . . . . . . . . . . . . . . 267
I. INTRODUCTION
Since the Castro revolution, it is impossible not to think of the existence
of two Cubas—radically different politically, socially, and economically
1. Author’s translation: “Women united by their history.”
* Levin, Mabie & Levin Professor of Law, University of Florida Levin College of Law.
Many thanks to Florida Law Review for their help with, and publication of, this Symposium. Mil
gracias to Shelbi Day (University of Florida, May 2002), Rebecca DeConcilio (University of
Florida, May 2002), and Veronica Díaz (University of Florida, May 2002) for their research
assistance on this project. Since the writing of this Essay, I have gone on my first trip to Cuba. I
mention this because it effectively changes the representation in this work that I have yet to return
to my birth-land. Many of the questions I raise in this Essay, however, remain unanswered.
Nonetheless, I can say that during my visit, the purpose of which was to attend the Second Annual
Cuba/U.S. Legal Forum, I felt both at home and a stranger. There is, to be sure, a paper to be
written about that experience, but that project is in the hopefully not too distant future.
225
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from each other. One is the post-revolutionary society created in the actual
physical island, a mere ninety miles from the southernmost tip of the United
States. This Cuba—Castro’s Cuba—has existed for the last forty-two years
under a socialist, communist regime imposed by the revolution, whose
objectives have been to develop a social and an economic rights agenda and
reject capitalism, imperialism, and colonialism.2 In this society, much as in
other socialist/communist societies, individual freedoms are sacrificed for
the good of, and subordinated to, the collective interests. It is the
government’s business to provide healthcare, education, welfare, food, and
work for its citizens, even if it is at the expense of the personal freedom to
choose a field of work or education.
The other Cuba is purposely dramatically different. Quintessentially
represented by the Miami-Cuban exile community, this Cuba views Castro’s
revolution as a travesty that robbed cubanas/os of a beautiful, enchanted
island and stalled economic progress to the detriment of the country and its
people.3 This Cuba embraces capitalism, democracy, and personal freedoms
above all else, and it condemns Castro’s denial of these rights to those on the
island. Freedoms of movement, speech, and association, as well as the rights
to privacy, to vote, and to travel—all rights denied in Castro’s Cuba—are
rights and freedoms to be protected at all costs.
Notwithstanding these incontrovertible political, philosophical, and
ideological divergences, for years I have interrogated whether the
distinctions were, or could be, defining of authentic cubanidad. I often have
wondered whether the Cuban people on the island would be really different
from those in exile. In other words, I questioned whether the revolution had
succeeded in changing the cultura cubana and thus truly created a different
Cuban society. After all, save for the Castro period, one is still engaging in
a society with shared roots of conquest and dependency, colonialism and
independence.4
I suspected that the history and cultural ties, binding cubanas/os across
the ninety-mile span of sea, would be stronger than the dividing force of the
political regimes under which we live. My initial explorations into the
situación cubana focused on the existing political, economic, and
governmental system and how it fit into the human rights model.5 As that
2. See generally FIDEL CASTRO & ERNESTO CHE GUEVARA, TO SPEAK THE TRUTH: WHY
WASHINGTON’S ‘COLD WAR’ AGAINST CUBA DOESN’T WORK (Mary-Alice Waters ed., 1992).
3. See Berta Esperanza Hernández-Truyol, Out in Left Field: Cuba’s Post-Cold War
Strikeout, 18 FORDHAM INT’L L.J. 15, 32-35 (1994) (providing an analysis of economic well-being
in pre-Castro Cuba; assessing Castro’s impact on “development” through regulation of radio
stations, telephones, etc.).
4. If indeed the revolution resulted in different Cuban peoples, the issue of authenticity–of
true cubanidad–would then lead to further interrogations as to whether territorial ties could, alone,
ascribe authenticity. That is, however, a question for another work.
5. See generally Hernández-Truyol, supra note 3.
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intellectual exercise ceded to cultural considerations and a desire to explore
similarities between the two Cubas, I started longing to visit the actual
physical place that was driving my studies—the place of my birth.
My first planned trip to Cuba since my family left in 1960 was in 1999.
Because I am a naturalized U.S. citizen, my passport plainly indicates my
place of birth as Havana, Cuba. Castro does not recognize naturalizations,
making me a Cuban subject in his eyes. Thus, while I had anxiously desired
to return to my birth-land for some time, I was not willing to risk falling
outside the realm of the protections afforded by my U.S. passport by taking
popular, but unauthorized routes through either Canada, Nassau, or Mexico
to mi isla.
In 1999, the perfect opportunity to visit Cuba arose: I was offered a
position as a representative of a nongovernmental organization (NGO),
Madre, to attend a human rights conference that was taking place in Havana.
Madre’s focus is on helping mothers and children; so the mission of the
organization would not be controversial and would not imbue me with any
sort of political baggage in the eyes of mi familia en el exilio. I happily
submitted my paperwork to Madre for the NGO to procure the requisite U.S.
and Cuban visas.
Once I completed my part of the paperwork, my emotions started to
make their way into my consciousness—emotions that vividly reflected the
existence of the two Cubas. How would I feel about visiting my birth
country? Would I be considered a real Cuban and warmly welcomed and
accepted—an interrogation that in a very personal context raised the issue
of the authenticity of one form or another of cubanidad? Or, would I find
myself as an “other” in Cuba—a stranger in an unfamiliar, yet at the same
time familiar, territory, much the same as (but at the same time different
from) the way I am an “other” within the U.S. borderlands because of my
cubanidad? Would the accents, music, and food be those to which I was
accustomed or would they be foreign and strange? Could I bond with the
family I planned to visit even though I barely knew them, or would we live
the deep and cavernous divide that separates cubanas/os inside and out of
the fronteras that constitute Cuba’s sovereign margins?
In order to problematize these complicated geographies, I recruited mami
y papi to construct a genealogical tree that would enable me to locate my
perch in the family history—a concrete location that might provide a sense
of my elusive niche. Mami y papi spent hours pasting together sheet after
sheet of paper creating a map of our shared histories. They also spent hours
(literally hours as the telecommunications routes with Cuba are less than
efficient) calling relatives to arrange for meetings during my stay. They
contacted first cousins with whom they were raised and the aunts and uncles
who had assisted in raising them to alert la familia about my upcoming visit.
All relatives were poised to welcome me with open arms. One of mami’s
cousins, Adigio Benitez Gimeno—a well-known artist whose work is
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considered cultural patrimony—was having an art opening on the date of my
arrival. He planned to pick me up at the hotel to take me to the event—one
that I much anticipated as I would have the unique opportunity to meet the
local artists and their friends. One of papi’s cousins—interestingly the part
of the family who lives in what used to be our family home in Havana—was
equally welcoming, even referring to the place at which they have lived for
almost forty years as my house.
Feeling more grounded because I had firm plans with la familia, my
sense of belonging on both sides of the Cuban borderlands was starting to
take hold as a reality. I planned my journey so that I would spend a few days
with my parents—in this Cuba—before going to la isla—that Cuba. Visiting
home would allow much needed time in this Cuba for me to start getting to
know la familia in that Cuba. Mami y papi showed me pictures and shared
stories that allowed me to start my travels without leaving familiar territory.
Those days were the start of the process of weaving connections that would
traverse geographic, economic, and political boundaries; cultural threads that
provided unity in distance. Sangre llamando a sangre.6
Only one week before my projected departure date, I received a call
alerting me that the paperwork necessary for the issuance of my Cuban visa
was incomplete. Specifically, the NGO working on processing my
application had failed to state that I was born in Cuba, a reality that triggers
different information and reporting requirements than for native-born estado
unidenses. Thus, merely days prior to the anticipated starting date for my
anxiously awaited journey, I found myself scrambling to secure details
concerning a past about which I had no actual knowledge and an unknown
future—my history in, and my future plans while visiting that Cuba.
Fortunately, mami y papi again jumped in to help. They located documents
and compiled required data such as the address of the hospital where I was
born, the addresses where I resided when I lived in Cuba, and the names and
addresses—including cross-streets—of any relatives or family friends with
whom I intended to be in contact during my stay.
Sadly, there was not enough time to resolve all the deficiencies in my
application. I still visited my folks, learned about la familia, studied the
genealogical tree mami y papi had meticulously prepared, and looked at
6. Jeanette Rodriguez, Sangre Llama a Sangre, Cultural Memory as a Source of
Theological Insight, in HISPANIC/LATINO THEOLOGY: CHALLENGE AND PROMISE 117-18 (Ada María
Isasi-Díaz & Fernando F. Segovia eds., 1996); Guadalupe T. Luna, Gold, Souls, and Wandering
Clerics: California Missions, Native Californians, and LatCrit Theory, 33 U.C. DAVIS L. REV. 921,
954 (2000) (translating this reference as blood cries out to blood; explaining that the expression
“connotes something in the blood that allows one to access the affective, ‘intuitive level’”); see also
PAULA GUNN ALLEN, THE SACRED HOOP: RECOVERING THE FEMININE IN AMERICAN INDIAN
TRADITIONS 209 (1992) (explaining that to her, this phrase refers to knowing our mothers). To me,
this phrase is a combination of Allen’s approach and our LatCritical goals of creating and practicing
community and building coalitions.
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pictures of those familiares I would have visited. But I never traversed the
physical borders to the land of my birth. I failed to savor Adigio’s art; I did
not meet any artists. I missed the opportunity to visit the wheelchair-bound,
eighty-year-old daughter of an uncle of mom’s who I remember well—he
raised chickens and was thus, popular with the kids in the family. He is the
very same uncle who was an early victim of the revolution. My desires and
careful planning notwithstanding, I would not cross the geographic
boundaries of my cubanness; I would not explore the cultural
(dis)connections. I was committed to observe the rule of law governing my
travel to Cuba and, this time, I was unable to meet its requirements. Being
determined to have a visa in hand before I touched Cuban soil, this voyage
could not become a reality.
Not much more than a year after my failed attempt to go to mi tierra, the
social, political, and geographic distance between Castro’s Cuba and the
Cuba of Miami’s exiles was boldly underscored. Elian happened. The
ninety-mile stretch I never crossed emerged as the light years that separate
la isla y el exilio.
I have never forgotten the exact date on which my family left Cuba:
November 10, 1960. I was Elian’s age. During the Elian controversy,
I—sometimes unconsciously, sometimes knowingly—kept placing myself
in the little boy’s shoes. What I remembered in 2000 about what I felt in
1960 was that I remembered nothing. Well, nothing other than hugging my
doll Alicia, a doll that still sits tall, if a little weathered, at my parents’ home
in Miami, sharing space with my high school, college, and law school
diplomas; my reprints; my volleyball, basketball, and softball letters; and my
picture albums. I also remember going through (what I now realize was)
customs with mami, papi, and Ernesto, my three-year-old little brother, and
feeling lost.
In hindsight, those reluctant memories, albeit limited, are safe because
mami y papi were there with us, holding our hands. As a young child, my
brother and I did not have to worry about being little kids in a new place
with unknown persons—strangers if not strange, speaking an alien tongue,
looking different, eating unfamiliar foods. I could not help but invoke those
memories as I thought about Elian and his plight.
To be sure, cubanas/os on both sides of the ninety-mile divide may hold
widely different opinions, as individuals, on the Elian affair.7 Such reality
notwithstanding, dramatically divergent group narratives emerged. Those
7. Berta Esperanza Hernández-Truyol, On Becoming the Other: Cubans, Castro, and
Elian—A LatCritical Analysis, 78 DENV. U. L. REV. 687 (2002) (discussing the facts of the Elian
Gonzalez affair; analyzing the legal principles; engaging in a critical analysis of varying views of
several Cuban-American law professors concerning the outcome of the case, specifically noting that
the law is used just as effectively by those holding different positions to justify and substantiate
their respective positions).
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collective narratives were bounded by geography, and resulted in a new
location in which to study the tragedy of the commons.8
The cubanas/os en el exilio adopted a hard-core, anti-Castro master
narrative. That storyline insisted that Elian, just like any child, would be
better off being raised in a free country that follows the rule of law, a country
in which he would pursue his own (American) dreams, free from meddling
by the government.9 This script exhorted that civil liberties were more
important than economic rights, capitalism superior to communism, and
freedom more meaningful than family if that family was in Cuba—arguing
that a dead mother’s (and distant uncle’s) apparent wishes were more
significant than those of a living, caring, and involved father.
The cubanas/os in Cuba, on the other hand, insisted that the rule of law
was on their side: a child—particularly a minor child—belongs with his/her
parents. They challenged the exiles’ anti-Castro’s fanaticism that would
separate father and son, simply based on their political ideology and the
U.S.’s imperialistic power. They observed that the boy was healthy and welladjusted, was receiving a good education, and had a good home.10
Plainly, the divergent positions were ideologically, philosophically, and
emotionally driven. The debate made me rethink whether there could exist
a Cuban society that was culturally cohesive, whether cubanidad was
dependent on territorial borders and political ideology, and whether there
could be a singular narrative on cubanidad. I suspected that, while social,
political, and economic differences might result in some insurmountable
divides, cultural tropes might unite us, even if not always through desirable
traditions.
To test this thesis, as this Essay will set out, I undertook to study the role
of cubanas in society. Part I traces the role of women in Cuban society
throughout history. It includes a review of the development of Cuban laws
concerning women, and women’s role in developing them. This Part also
addresses laws pertaining to women that were adopted by the present
revolutionary regime. Part II sets out laws, beyond the laws of Cuba, that
address the issue of gender/sex equality. It focuses on international norms
that protect sex equality pertinent to women in Cuba as well as to Cuban
8. Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243, 1244 (1968)
(describing dilemma about use of a common field by individuals each of whom positively benefits
from adding one more animal to his stock with the result of an over-grazed field; noting that care
for public goods necessitates either public regulation or an understanding of proper levels of use).
In the Cuba analogy, Cubanness is at risk because culture, like the field, is being indiscriminately
loaded with tropes in an unregulated context in which there is no common ground for cultural
conversations.
9. See generally Gonzalez v. Reno, 212 F.3d 1338, 1344-45 (11th Cir. 2000); HernándezTruyol, supra note 7 (presenting the sentiments expressed by those Cuban Americans who felt that
Elian should be allowed to stay in the U.S.).
10. Gonzalez, 212 F.3d at 1345.
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231
women outside of Cuba. It also reviews U.S. laws on equality as they affect
Cuban women within U.S. borders. Part III turns to look at culture and its
function in defining the reality of Cuban women on the island as well as in
the U.S. The work concludes that culture trumps law: cultural assumptions
about sex roles have persisted in Cuban societies whether within the island
or in the Cuban community within the U.S.; further study is likely to reveal
additional commonalties with respect to attitudes in matters such as family,
race, and sexuality.11
II. A BRIEF HISTORY OF WOMEN IN CUBA
This Part will chronicle the role of women in developing Cuban law and
society. Significantly, women throughout Cuba’s history have played key
roles in the evolution of the island’s society. Although their participation has
directly triggered and effected change, they have not always been full
beneficiaries—at least in the public manifestations of change. In the early
periods as well as today—both inside and outside the island’s
fronteras—they seldom hold public office or belong to the elite political,
civic, or corporate spheres.
A. Mambisas: The First Women’s Movement in Cuban Society
Cuban feminism emerged, and throughout history re-emerged, in times
of revolution. The first Cuban women to break from the mold established by
society, church, and state which dictates that women are to be weak,
dependent, and submissive—the first Cuban feminists—were the mambisas,
woman warriors.12 The mambisas were in their apogee when Cubans were
seeking independence from Spain and challenging the Catholic Church,
Spanish laws, patriarchal privilege, slavery, social ordering, and a plantationcentered economy.13 The mambisas, feminist pioneers who were wives and
mothers, redefined the borders of womanhood by leaving the safety of their
11. See, e.g., Lillian Manzor-Coats, Performative Identities: Scenes Between Two Cubas, in
BRIDGES TO CUBA/PUENTES A CUBA 253, 256 (Ruth Behar ed., 1995) [hereinafter BRIDGES TO
CUBA]. See generally Alejandro la Fuente, The Resurgence of Racism in Cuba, NACLA REPORT
ON THE AMERICAS, May 1, 2001, at 29; G. Derrick Hodge, Colonization of the Cuban Body: The
Growth of Male Sex Work in Havana, NACLA REPORT ON THE AMERICAS, Mar. 1, 2001, at 20.
12. See K. LYNN STONER, FROM THE HOUSE TO THE STREETS: THE CUBAN WOMAN'S
MOVEMENT FOR LEGAL REFORM, 1898-1940, at 5-6, 13 (1991).
13. See id. at 5-6. Early Cuban feminists struggled within, rather than against society; rather
than being an autonomous movement, Cuban feminism sought to work with men for change. See
id. at 13. Pre-revolution feminists tended to be white, upper-middle class women in a society that
was based on race and class distinctions. See id. After the revolution, however, feminism became
part of the movement, and it was government sponsored and supported. See id. at 6-7. Within the
context of the socialist revolution that eradicated both class and race distinctions, feminists became
much more representative of Cuban society as a whole. See id. at 5-6.
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hogares to join in the fight for Cuban independence from Spain in two
wars.14 First, they took part in the Ten Years War of 1868-1878, and then in
the War of 1895, when Martí called the rebel armies to arms and reminded
them of their dreams of an independent Cuba.15 Through their participation
in war, the mambisas challenged the traditional female spaces of weakness
and submissiveness and embraced the male spaces of strength and
leadership.
Considering their active role in battle as well as their continued domestic
duties, the mambisas may well have been the precursors of today’s
superwoman: they worked full time both inside and outside the home.
Interestingly, even their role in battle was appreciated in the context of their
exalted natural role as mothers. Indeed, Mariana Grajales—La Leona, the
mother of ten soldiers, including Antonio Maceo, one of Cuba’s best-known,
loved, and respected heroes—fought alongside her sons in war and thus,
became the archetype and exemplar of motherhood.16 Such an image of the
madre patriota became an emblem of Cuban sacrifice and endurance—traits
that are demanded of all women by the culture in its marianista outlook.17
Yet, the mambisas were the first women in Cuba to own their own property,
once again challenging the whole notion of male authority over family
property, and establishing a woman’s right to control her own property
without a pre-nuptial agreement.18
The “legal” changes effected by the mambisas constituted a blueprint for
the legal changes that would take place in Cuba pursuant to women’s
initiatives. Significantly, however, the social changes—or lack thereof—as
manifested by the mambisas’ marianismo also foretell the laws’ lack of
social impact.
B. Early Legal Changes Favoring Women
The war of independence ended in 1898 with the defeat of Spain—a
Cuban victory that could not have been possible without the revolutionary
participation of women.19 Interestingly, these women had to protest the 1901
14. Id. at 13.
15. Id. at 28.
16. ISABEL HOLGADO FERNÁNDEZ, ¡NO ES FÁCIL! MUJERES CUBANAS Y LA CRISIS
REVOLUCIONARIA 261 (Icaria Antrazyt 2000).
17. See infra note 209 and accompanying text; see also BONILLA-SANTIAGO, BREAKING
GROUND AND BARRIERS: HISPANIC WOMEN DEVELOPING EFFECTIVE LEADERSHIP 11 (1992);
P IERRETTE HONDAGNEU-SOTELO, GENDERED TRANSITIONS: MEXICAN EXPERIENCES OF
IMMIGRATION 9 (1994) (explaining that “[t]he ideological corollary [to machismo] for women, . . .
marianismo (marianism), is modeled on the Catholic Virgin Madonna, and prescribes dependence,
subordination, responsibility for all domestic chores, and selfless devotion to family and children”).
18. See STONER, supra note 12, at 22.
19. See id. at 24.
2003]
233
Cuban Constitution because it ignored women’s rights.20 After the war,
female independence fighters returned home and fell back into their
societally defined roles.21 Although the women warriors were hopeful of
social change based on Jose Martí’s pronouncements of social justice, this
hope quickly fizzled.22 Martí did not emphasize women’s positions in the
new society nor did he prosecute social injustices affecting women; he only
recognized their wartime contributions.23
Between 1902 and 1940, women’s organizations—some called feminist
and some called feminine, thus underscoring the cultural tensions inherent
in women’s rights struggle in Cuba—formed and worked to influence the
direction of the legal protections.24 Indeed, as is detailed below, women were
central to effecting myriad legal changes for women and their condition.
Never, however, did women put aside their focus on morality and the
sanctity of motherhood; rather, these were the causes of the movement.25
1. Property and Family Rights
The property rights for which the mambisas fought became law in 1917,
with the passing of a bill that granted married women the right to administer
their dowries and their property.26 Ironically, the passage of this bill
depended on the arguments of two male senators who maintained that giving
women this small right would prevent a revolution and the dissolution of the
family.27 They illustrated the latter point by noting that allowing women the
right to control their own property would protect a man’s fortune and
prevent it from passing to another family line when a family only had
daughters.28 In addition to granting married women control over their
dowries and family properties, this 1917 bill also granted women the right
to sue and be sued and gave women authority over their children from
previous marriages.29
Following this property rights bill, other laws that expanded women’s
rights quickly followed. Even before obtaining the right to vote, women
received protection from the 1918 divorce law, which separated church and
state and lessened the church’s influence over Cuban women.30 This law
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
See id. at 33.
See id.
See id. at 28-29.
See id. at 29.
See id. at 25-39.
See id.
See id. at 45.
See id. at 44-45.
See id. at 45.
See id.
Id. at 51-52.
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passed without women’s advocacy or even their expression of the law’s
desirability.31 The divorce law was revised in 1930 and again in 1934,
resulting in one of the most progressive divorce laws in the world.32 Grounds
for divorce were expanded to include separation of spouses for five years or
more, corruption of one marriage partner by the other, use of drugs, bigamy,
and abandonment of six months.33 In addition, under the law, husbands and
wives were charged with equal responsibility for the stability of the family
and the support of the children.34 Custody was awarded on the basis of
ability to support, rather than gender of the parent.35 Unfortunately, this
meant that women who were less financially solvent than men often lost
custody of their children.36
The new divorce law also entitled women to either liquidate or assume
control of their husband’s estate in the event that the husband could not meet
his alimony payments.37 However, alimony was not need-based and,
following the marianista notion of women’s purity, it was only awarded to
innocent wives.38
In 1928, ten years after the passage of the first divorce law, women were
freed from the adultery law—a law that gave men complete authority over
their wives and daughters and basically sanctioned violence against
women.39 This adultery law, Article 437 of the Spanish penal code, allowed
a husband who discovered his wife in the act of adultery, or who
encountered his minor daughter with a lover, to kill his wife or daughter and
the offending lover, without being tried for homicide; the maximum penalty
was exile.40 Indeed, the husband suffered no penalty at all if he only
wounded the wife or daughter, or her lover.41
Women’s groups made it a priority to change the adultery law, and
turned adultery from a tool of violence against women into grounds for
divorce for either party.42 Notwithstanding the legal change effected by the
1928 bill that abolished the adultery law, the societal underpinnings of the
law failed to change.43 Interestingly, evidence of the lack of change in mores
31. See id. at 51.
32. See id. at 52 (indicating that issues stemming from earlier laws prompted the involvement
of feminists in the 1930 and 1934 processes).
33. See id. at 159.
34. See id.
35. See id.
36. See id.
37. See id.
38. See id.
39. See id. at 148.
40. Id.
41. Id.
42. See id. at 151.
43. See id. at 155.
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235
is found in the circumstances of the enactment of the law, which passed
without presidential signature because President Machado did not want to
be associated with “the loosening of sexual standards”44 that presumptively
would take place if men could not put or keep “their” women in women’s
proper place.
In 1934, only a few years after the dramatic changes in the adultery law,
Cuba’s legislature passed the first national maternity law, which included a
grant of twelve weeks leave for maternity (six weeks before and six weeks
after giving birth); payment of subsistence pension to mothers while absent
from work on maternity leave; and a requirement that all public and private
industrial factories that employed more than fifty women maintain a nursery
for children under two years of age.45 In 1937, provisions were added to the
maternity law, which included giving nursing mothers half an hour in the
morning and half an hour in the afternoon to breast-feed the children until
they reached one year of age, and made it illegal for employers to fire female
employees when they married.46 Although these maternity laws represented
a great legal advance for many women, their tragic flaw was that domestic
servants, who made up 32% of the population, were excluded from
coverage.47 Moreover, while the paper rights existed, in reality, many women
failed to receive the services formally guaranteed.48
Significantly, women obtained these broad legal rights without any
acknowledgment of, or demand for, women’s equality. Indeed, the Cuban
feminists who fought for these rights were far from representative of Cuban
society as a whole.49 The Cuban feminists were white, middle to upper class,
and educated, about 40% were mothers, 42% were married, 60% had, at
some time, been employed, 75% had graduated from a university, 33% had
post-graduate degrees, and every single one had at least one servant.50 These
women were the product of a Cuban culture that reflected many years of
Spanish influence. That traditional culture dictated the proper sphere of
women’s participation in society: women were not to work, but were
supposed to stay at home and prepare for marriage. Even if a woman did
work, it was understood that it was temporary, and once she married, she
would give up her job.
44. See id.
45. Id. at 177-78. However, agricultural workers, who made up about 10% of the female labor
force, did not have access to the nurseries. Id. at 178.
46. Id.
47. See id.
48. See id.
49. See generally id. ch. 4 (providing a detailed background for, and demographics of, the
feminists).
50. Id. at 78.
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However, these cultural aspirations and expectations were different for
black, mulata, and poor white women who had no option but to leave home
and work.51 So, although only a small number of women were employed
during the early years of Cuban independence, approximately three-quarters
of the employed women were black and most were engaged as
domestics—some of whom were serving the feminists as laundresses—and
tobacco plantation workers.52 These women, in contrast to the educated
feminists, faced poverty, ill health, sexual exploitation, and disrespect for
their race and/or class.53 They were shamed and considered inferior, and they
were expected to be at the sexual service of the men with whom they
worked.54
2. The Rights to Vote and to Equality
Another one of the main goals of the early feminist movement was to
secure the right to vote for women. Although President Ramón Grau San
Martín granted women the right to vote in the provisional Constitution of
1934, that right, together with the right to be elected to public office, became
a confirmed reality in the Constitution of 1940, one of the most progressive
constitutions in the world as far as rights for women were concerned.55 Like
the right to own property, however, neither the constitutional right to vote
nor the express constitutional provisions regarding gender equality translated
into any recognition or acknowledgment of women’s equality, nor did they
effect gender equality in Cuban society.
Grau San Martín’s 1934 Decree-Law 589 was the precursor to some of
the 1940 Constitution’s equality provisions.56 This law mandated that salary
should correspond to the nature of the work, not the sex of the worker, and
assured women equal access to work, except for protective legislation
preventing them from working in dangerous environments—which
effectively restricted women from some 400 job categories.57 In addition,
Article 8 of the Decree-Law 589 sought to protect domestic servants by
requiring them to register their employers’ names and their salaries with the
Secretary of Labor so that officials could detect underpayment and domestics
would have access to national insurance.58
51. See id. at 3.
52. See MARGARET E. LEAHY, DEVELOPMENT STRATEGIES AND THE STATUS OF WOMEN: A
COMPARATIVE STUDY OF THE UNITED STATES, MEXICO, THE SOVIET UNION, AND CUBA 93 (1986).
53. See STONER, supra note 12, at 3, 85-86.
54. See id.
55. See id. at 124-25, 181-82.
56. See id. at 124-26, 179-83.
57. See id. at 179-80.
58. Id. at 179.
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237
Notwithstanding the reality of the inequality of women, the 1940
Constitution had several noteworthy provisions regarding technical legal
rights to equality. For example, Article 23 provided that “[a]ll Cubans are
equal before the law. The state does not recognize special privileges or
status. It is illegal and punishable by law to discriminate based on sex, race,
color, class, and any other prejudice against human dignity.”59 In addition,
Article 62 provided equal pay for equal work, regardless of sex, race, or
nationality; Article 68 made it illegal to distinguish between married and
single women in the workplace; and Article 66 mandated an eight-hour
workday while restricting night work for women.60 Once these extensive
gender-based legal rights were realized, the feminist movement in Cuba
basically died.61
Unfortunately, although Cuba’s Constitution was one of the most
progressive in the world, especially with respect to its treatment of women,
these praiseworthy paper rights did not result in real changes in women’s
lives. Rather, the legal advances in the Constitution did not alleviate the
profound economic and political subordination of women. In 1953, while
Cuba ranked third highest in Latin America for its literacy rate, with 78.8%
of the female population literate,62 women fared worse than men. In higher
education, only 1.6% of women had received some secondary education, as
compared to 2.4% of men, and only 0.8% of women received some
university education, compared to 1.6% of men.63
Similarly, women did not fare well in employment. Women comprised
only 17% of the work force, and those working women were concentrated
in the “pink ghetto.”64 While one-third of the labor force was unemployed
or partially employed between 1956 and 1958,65 women had less opportunity
than men, with an economy allowing few options for support other than
marriage, and a culture that, despite broad legal pronouncements on
women’s equality, reinforced the view of a woman’s place being in the
59. CONSTITUCIÓN DE LA REPÚBLICA DE CUBA art. 20 (1940), in CONSTITUCIONES CUBANAS:
DESDE 1812 HASTA NUESTROS DIAS 246 (1974).
60. See id. at 255, 256, 257; see also STONER, supra note 12, at 181 (citing Cuban
Constitutional provisions).
61. See STONER, supra note 12, at 181-83.
62. See Susan Kaufman Purcell, Modernizing Women for a Modern Society: The Cuban
Case, in FEMALE AND MALE IN LATIN AMERICA 257, 260 (Ann Pescatello ed., 1973).
63. See id. at 261.
64. WOMEN: CHALLENGES TO THE YEAR 2000, at 45 (United Nations Report 1991). The
United Nations has reported that “[w]hereas under socialist systems women are relatively less
confined to low level, pink ghetto jobs, they are still predominant in occupations that are poorly
paid and do not require educational or technical qualifications.” Id.; see also Purcell, supra note
62, at 261.
65. WORKING WOMEN IN SOCIALIST COUNTRIES: THE FERTILITY CONNECTION 201 (Valentina
Bodrova & Richard Anker eds., 1985).
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home.66 Even when women entered the work force, they did so in fields
which were deemed “appropriate” and “acceptable” for women.67
Traditionally, these “pink collar” jobs were low-paying and low-status. For
example, before the revolution, between one-quarter and one-third of Cuban
women worked as domestics, and over 60% of female professionals were
school teachers in the lower grades while a majority of the teachers at the
secondary level and above were men.68
Finally, women may have had a constitutionally dictated equal right to
hold public office, but women rarely ran for such office and few who ran
were elected.69 Thus, although women apparently had very strong paper legal
rights, these were merely aspirational, as the social, everyday reality did not
comport to the technical rules.
C. The Castro Revolution and Beyond
In 1952, after Batista’s overthrow of the government, the feminists
dispersed to various political groups to fight against the dictator.70 Fidel
urged women’s groups to consolidate and form a united women’s
front—which they did, and in so doing, played a fundamental role in the
positioning of the revolution.71 They raised funds, acted as teachers, recruited
and created sympathy for the guerilla movement, took care of the wounded,
transported arms and documents, and organized revolutionary groups.72 Once
the guerilla armies were established on the Sierra de Escambray, the women
continued their support; they transported weapons and messages, made
uniforms, placed bombs, gathered medicines, visited the guerillas in jail, and
took care of the wounded.73
Castro’s revolution was founded on the concept of egalitarianism. In fact,
in his first address to the nation, Castro noted the need to end discrimination
against women’s participation in the labor force. Shortly thereafter, the
Labor Ministry started to enforce labor legislation regarding women more
strictly and to pass new regulations addressing the right of pregnant women
to their jobs. Similarly, in Castro’s September 26, 1960 address to the United
Nations General Assembly, he clearly stated that one of the aims of the
revolution was to eradicate inequality and discrimination specifically against
66. See LEAHY, supra note 52, at 93.
67. See Purcell, supra note 62, at 261.
68. See LEAHY, supra note 52, at 92-93.
69. See id. at 92.
70. FERNÁNDEZ, supra note 16, at 265.
71. Berta Esperanza Hernández-Truyol, Women in Contemporary Cuba, in WOMEN IN THE
THIRD WORLD: AN ENCYCLOPEDIA OF CONTEMPORARY ISSUES 618, 620-23 (Nelly P. Stromquist
& Karen Monkman eds., 1998).
72. Id. at 621.
73. See, e.g., FERNÁNDEZ, supra note 16, at 266-67.
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239
blacks, Indians, and women.74 Castro designated this move toward equality
for women as “a revolution within [a] Revolution.”75 The 1976 Constitution
encoded this right to equality into law, with Chapter Five expressly
providing that “all citizens [enjoy] equal rights and are subject to equal
duties.”76
1. Women Join the Fight for Independence
Just as they had done in the war to free Cuba from Spanish domination,
in the revolution of 1959, women fought alongside men.77 Women were
involved in every aspect of the revolution, including producing rebel
uniforms, participating actively in sabotage units, transporting arms, and
hiding in the mountains.78 In fact, by 1958 about one-twentieth of the rebel
army’s 3,000 soldiers were women.79 Although some men opposed female
platoons, Castro fully supported them, noting that “there are men who ran,
M-1 and all, but we don’t have a single example of one of the Mariana
Grajales women who ran from combat.”80
In order to institutionalize the women’s place in the revolution, Castro
created the Federación de Mujeres Cubanas (Federation of Cuban Women)
(FMC) in August 1960.81 Although initial membership was less than
100,000, by 1968, membership had swelled to almost one million women;
by 1970, membership numbered 1,343,098, or 54% of the Cuban women
over the age of 14.82 As of 1995, close to 3,600,000 or 82.4% of Cuban
women were members of the FMC.83 The goals of the FMC have been to
“[prepare] women educationally, politically and socially to participate in the
Revolution,” as well as to incorporate women into the work force and raise
74. Fidel Castro, The Case of Cuba Is the Case of All Underdeveloped Countries, Address
to General Assembly (Sept. 26, 1960), in TO SPEAK THE TRUTH, supra note 2, at 31, 91-92
[hereinafter The Case of Cuba].
76. CONSTITUCIÓN DE LA REPÚBLICA DE CUBA (1976), in THE CONSTITUTIONS OF THE
COMMUNIST WORLD 99, 111 (William B. Simons ed., 1980). Significantly, Chapter 5 provides for
equal access to employment, services, military rank, salary for equal work, education (primarily
through university), medical assistance, housing, restaurants, transportation, beaches and other
public places. Id. at 111-12.
77. See MARGARET RANDALL, WOMEN IN CUBA: TWENTY YEARS LATER 22 (1981).
78. See id.
79. See Diana M. Riveira, Women’s Legal Advances in Cuba, ch.II, 9 (1989) (unpublished
Masters Thesis, University of Miami) (on file with author).
80. See id. (emphasis added) (explaining that the Mariana Grajales troops saw action in about
twenty important battles, and once the enemy surrendered, they took on peace-time tasks).
82. See id. at 263.
83. FERNÁNDEZ, supra note 16, at 270. This membership figure breaks down, by occupation,
as follows: 42.5% homemakers, 38.9% salaried employees, and 10.5% students. Id.
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their educational consciousness.84 Significantly, the head of the FMC was
Vilma Espín, Castro’s sister-in-law and the only woman to serve in the
Politburo, albeit for a very short time.85
2. Women’s Participation in Education, Labor, and Politics86
One of Castro’s first revolutionary campaigns was to abolish illiteracy.87
His campaign succeeded in reducing illiteracy from 23.9% to 3.9% of the
population, making approximately three-quarters of a million persons, 56%
of whom were women, literate.88 Volunteers, among which many were
Cuban youths, carried out the literacy campaign.89 The FMC figured
prominently in this campaign, mobilizing women for the volunteer work,
which resulted in 55% of the volunteers—brigadistas—being young
women.90
Another major undertaking of the revolution in which the FMC played
a major role was the re-education or re-training of domestic servants and
prostitutes, a goal consistent with the revolutionary aim of ending gender,
class, and race-based distinctions in society.91 Under specially designed
programs run by the FMC, domestics—most of whom were women—were
allowed to leave their employment and study full-time or stay at their posts
and take courses at night.92
Women as a whole have fared well in formal education.93 In fact, figures
show that females are on par with, if not ahead of, males in formal
educational attainments. Not only were women well-represented in
enrollment, they were also well-represented in most fields, including some
fields traditionally viewed as “male”94—by 1975, women comprised 30% of
all engineering students and 35% of all agricultural science students.95
Despite such incontrovertible progress, in 1974, at an FMC Congress,
Castro recognized that women’s equality was not yet a reality.96 Ironically,
a decade later, the government imposed quotas specifically designed to limit
84. See Purcell, supra note 62, at 263 (alteration in original).
85. See id. at 262.
86. This Part draws largely from one of my previous pieces, Women in Contemporary Cuba,
supra note 71.
87. See RANDALL, supra note 77, at 54.
88. See id. at 55; see also Purcell, supra note 62, at 264.
89. See RANDALL, supra note 77, at 55.
90. See Riveira, supra note 79, ch.II, 13, 18; see also Purcell, supra note 62, at 264.
91. See Riveira, supra note 79, ch.II, 22-25; see also Purcell, supra note 62, at 264.
93. See FERNÁNDEZ, supra note 16, at 83, 86.
94. Id. at 86; see also LEAHY, supra note 52; Hernández-Truyol, supra note 71, at 621.
95. Hernández-Truyol, supra note 71, at 622.
96. Id.
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the number of women allowed to attend medical school.97 The government’s
twofold explanation for the quota was seemingly based on the critical role
played by civilian medical assistance in Cuba’s foreign policy.98 Incidentally,
both of the government’s proffered rationales “revealed the status of women
as one of inequality.”99
Most interestingly, the rationales were based upon and ceded to
traditionalist gender stereotypes—a proposition wholly inapposite to the
equality rhetoric of the regime and the legally mandated equality norms. The
government’s first explanation was that the substantial responsibilities that
women had to their families would make it difficult for necessary extended
overseas travel to render medical assistance.100 Secondly, the government
rationalized that because many of the countries which needed assistance had
not yet recognized (as Cuba purportedly had) the changing role of women
in society, male doctors were necessary to render such assistance.101
Certainly, through the medical school quota, the government effectively
denied women the right to decide for themselves whether to travel and put
up with sexist attitudes. Thus, Castro’s supposed notion of equality—the
heart of his revolution—“ceded to the governmental policy to deliver aid.”102
Significantly, the FMC, despite its agenda to promote and ensure gender
equality, failed to challenge this discriminatory policy.103
Notwithstanding such contradictions, progress for women is evident in
the employment figures—another area in which the FMC has made great
efforts to achieve equality for women. In fact, the changes in employment
figures regarding women in the labor force is telling. In 1964, only 282,000
women were gainfully employed; by 1970, the number of women in the
labor force had reached 600,000.104 By the end of the 1970s, nearly 31% of
the work force was female.105 In 1990, women comprised 32% of the labor
force, about average for all developing countries but below the 42% figure
for industrial states.106
Aside from increasing their numbers, women also have broadened their
role in the labor force. While women now hold many jobs that exclusively
97.
98.
99.
100.
101.
102.
103.
104.
105.
106.
Id.
Id.
Id.
Id.
Id.
Id.
Id.
See Purcell, supra note 62, at 266.
See LEAHY, supra note 52, at 104.
See Human Development Report 1993, UNITED NATIONS HUMAN DEVELOPMENT
PROGRAMME 150-51, 195, 214 (1993) [hereinafter UNHDR 1993]. This figure is not consistently
reported. Riveira, in her work, noted that as of 1985, women comprised 48% of the work force.
Riveira, supra note 79, ch.II, 42.
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had been held by men—women work as cane cutters, citrus fruit packers,
auto mechanics, dentists, doctors, engineers, and traffic police—female
participation in the labor force still mostly follows traditional patterns.107 For
example, the most common occupational group for women is in the
classification of “other intellectual activities,” a classification that includes
clerical and secretarial jobs.108 Notwithstanding their concentration in
traditionally female jobs, women also make up the majority in some “nontraditional female” fields such as medicine109 and, increasingly, in law.110
One last indicia of the lasting difference between men and women in the
labor force is noteworthy: retirement age is fifty-five for women but sixty for
men,111 which reflects the cultural expectation that men are presumed to be
the “breadwinners” and to provide for their families.
Thus, in Cuba today, as in other cultures, women are considered a supply
of labor when there are shortages.112 When the state, however, found it
necessary to tinker with employment figures because of the economic
climate, it did not hesitate to take measures to discourage female
employment, including the very unequal step of classifying some jobs as
male only.113 In fact, there are still some job categories from which women
are excluded, although the list now only includes approximately 25 jobs,
whereas in the 1970s it included about 300 jobs.114 These government
regulations themselves limit women’s access to certain jobs—a patently
discriminatory policy—although the government has facially explained the
restrictions as aimed at protecting women’s health.115 Moreover, the over-
107. See Sergio Diaz-Briquets, The Cuban Labor Force in 1981 and Beyond, in THE CUBAN
ECONOMY: DEPENDENCY AND DEVELOPMENT 99, 107 (Antonio Jorge & Jaime Suchlicki eds.,
1989).
108. Id.
109. See Sarah M. Santana, Whither Cuban Medicine? Challenges for the Next Generation,
in TRANSFORMATION AND STRUGGLE: CUBA FACES THE 1990S 251, 253 (Sandor Halesbsky & John
M. Kirk eds., 1990) [hereinafter TRANSFORMATION AND STRUGGLE].
110. See Debra Evenson, The Changing Role of Law in Revolutionary Cuba, in
TRANSFORMATION AND STRUGGLE, supra note 109, at 53, 63.
111. FERNÁNDEZ, supra note 16, at 85 n.3.
112. For example, during WWII, advertising executives created the character “Rosie the
Riveter” to encourage women to work during the war. See David Rohde, From Film Auteur to
Advertising Man, in a Campaign for Indonesian Democracy, N.Y. TIMES, Dec. 28, 2000, at E3; see
also Diaz-Briquets, supra note 107, at 102 (explaining that a good example of this in Cuba was the
“agricultural push of the late 1960s . . . [when] [w]omen were . . . called to replace male urban
workers that had gone to labor in the fields, and also to directly contribute their input to the sugar
harvest”).
113. Diaz-Briquets, supra note 107, at 102-03.
114. FERNÁNDEZ, supra note 16, at 89-90; see also Hernández-Truyol, supra note 71, at 623.
See generally Diaz-Briquets, supra note 107, at 102-03 (explaining that in the late 1970s, “several
measures were introduced to discourage female employment”).
115. FERNÁNDEZ, supra note 16, at 91-92.
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representation of women in “pink collar” jobs reflects the preservation of
traditional gender roles, including one that presumes work outside the home
is more important for men.
To be sure, the FMC has objected to the work restrictions imposed on
women as violative of principles of gender equality.116 In its 1990 Congress,
the FMC also noted that one of the obstacles to achieving gender equality is
women’s double burden of work and home.117 The FMC also recognized the
continued discrimination in job promotions, the lack of women receiving
promotions to leadership positions, and the significantly lower earnings of
women as compared to men, even when women were better educated.118
Women in Cuba also have made some strides in parliamentary
representation. In 1999, the percentage of parliamentary seats occupied by
women in Cuba was 27.67%, down from 34% in 1991, which was then
behind only Norway, Romania, and the Soviet Union. Now, Cuba is behind
many more.119 This figure, however, places the number of seats occupied by
women in Parliament in Cuba at more than two times the 12.5% figure for
the United States in 1999.120
However, women lag far behind in the “more powerful and prestigious
occupational levels in revolutionary Cuba.”121 It was not until 1986 that a
woman became a full Politburo member, a position from which she was
excluded in 1991 when that body again was all male.
Although one out of every three workers is a woman, less than
one in five directors of state, political, and economic
organizations [are] female. This female under-representation in
the pinnacles of political and economic power . . . remains
puzzling if one is to accept the official rhetoric calling for
equality between the sexes.122
3. El Periódo Especial
116.
117.
118.
119.
See id. at 94.
Id.
See id. at 83, 86.
See Human Development Report 1999, UNITED NATIONS HUMAN DEVELOPMENT
PROGRAMME 142-45 (1999) [hereinafter UNHDR 1999]; UNHDR 1993, supra note 106, at 150-52,
see also THE WORLD’S WOMEN 2000: TRENDS AND STATISTICS 172 (United Nations 2000)
[hereinafter WORLD’S WOMEN 2000].
120. UNHDR 1999, supra note 119, at 142-45; see also WORLD’S WOMEN 2000, supra note
119, at 175; Human Development Report 1995, UNITED NATIONS HUMAN DEVELOPMENT
PROGRAMME 60-61 (1995) [hereinafter UNHDR 1995] (reporting that in 1994, women held only
10% of the parliamentary seats in the United States and 23% of the parliamentary seats in Cuba).
121. Diaz-Briquets, supra note 107, at 109.
122. Id. Similarly, women are under-represented in industrial groupings, including agriculture
and manufacturing—the leading activities for males—as well as construction and transportation.
Id. at 109-10.
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The burdens that formal government policies and cultural traditions place
on women were exacerbated in Cuba with el periodo especial, in which the
shortages of resources fell mostly on women who, therefore, had to run their
homes with less. As in past epochs, with necesidad the mujeres got loud, and
the women began to dissent—thus eliciting a gendered revolution within the
Castro revolutionary regime. This women’s movement resulted in the birth
of the Magin, whose objective was to demonstrate that socialist politics are
insufficient to modify the relations between the sexes. The goal of this
movement was to realize women’s autonomy and equality in the context of
socialism.
The magineras are women who used to belong to the partido comunista,
but when the promise of equality did not become a reality they organized a
new group and protested. Women disproportionately suffered because their
unchanging primary roles as mothers, wives, and homemakers became more
onerous due to the difficulties in finding everyday needs such as food; they
also suffered because, although many had college degrees, they were forced
to sell trinkets on the streets because it enhanced the possibility of earning
dollars.123
This internal revolutionary struggle for women’s equality follows the
pattern established by Cuban women throughout history but with a more
purely feminist twist. Here, the aim was to fix the revolution’s failing in the
arena of sex equality.124 The women involved have paid dearly for their nontraditional acts. The anti-revolutionary reputation of the organization has
caused its members many hardships.125 For example, María Angeles
Gonzalez Amaro, a journalist, now receives very little pay from overseas for
her articles and lost her job in Cuba because of her association with
Magin.126 She has been arrested repeatedly and milicianos regularly search
her house.127 Her two daughters were kicked out of the university and lost
their jobs.128 Interestingly, she wants to stay in Cuba and make women’s
dreams of equality a reality.129 One of her favorite sayings is “no hay mal que
dure cien años ni cuerpo que lo resista.”130
III. OTHER RELEVANT EQUALITY LAWS
123. See generally id. (explaining the trend throughout Cuba’s economic history of denying
women employment).
124. FERNÁNDEZ, supra note 16, at 13.
125. See id. at 282.
126. Id. at 285.
127. Id.
128. Id. at 286.
129. Id.
130. Id. Author’s translation: “there is no evil that lasts for a 100 years nor body that can resist
it.”
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As this is a study on whether mujeres cubanas have ties that bind them
beyond the island’s territorial boundaries, it is important to explore whether
the mujeres cubanas that left Cuba are bound by the same, or at least similar,
rules of law as the women in Castro’s Cuba. There are two sets of rules that
will be discussed below. The first is the set of international human rights
norms that mandate sex equality. These norms are equally applicable to all
Cuban women—both inside and outside the island. The second is the sexequality norms that evolved in the United States as these govern the rights
of Cuban women en el exilio.
A. International Laws
International human rights are those rights vital to individuals’
existence—they are fundamental, inviolable, interdependent, indivisible, and
inalienable rights, and predicates to life as human beings.131 Human rights
are moral, social, religious, legal, and political rights that concern respect
and dignity associated with personhood, with a human being’s identity.132
Human rights’ origins are traced to religion, “natural law, [and]
contemporary moral values.”133 The concept of human rights is a relatively
recent, modern concept that is universally applicable, at least in principle.
World War II marked a turning point in international law with respect to
the status of individuals.134 Indeed, international criminal tribunals were
established at Nuremberg and Tokyo to punish war participants for criminal
atrocities.135 These newly established standards spawned from the
overwhelming public desire to avoid the recurrence of such crimes against
humanity and the resultant need to protect human rights.136 The individual,
however, was “recognized in the global setting prior to the Second World
War.”137
It was not until after the signing of the United Nations Charter (U.N.
Charter) in 1945138 that international action concentrated on providing
131. See generally Berta Esperanza Hernández-Truyol, To Bear or Not to Bear: Reproductive
Freedom as an International Human Right, 17 BROOK. J. INT’L L. 309 (1991); see also REBECCA
M.M. WALLACE, INTERNATIONAL LAW: A STUDENT INTRODUCTION 175, 175 (1986) (explaining
that “[h]uman rights . . . are regarded as those fundamental and inalienable rights which are
essential for life as a human being”).
132. See generally WALLACE, supra note 131; Hernández-Truyol, supra note 131.
133. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 701
cmt. b (1987).
134. Berta Esperanza Hernández-Truyol, Human Rights Through a Gendered Lens:
Emergence, Evolution, Revolution, in 1 WOMEN AND INTERNATIONAL HUMAN RIGHTS LAW 3, 10
(Kelly D. Askin & Dorean M. Koenig eds., 1999).
135. Id.
136. Id.
137. Id.
138. U.N. CHARTER STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, as amended, June
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comprehensive protection for all individuals against various forms of
injustice. Such protections now exist regardless of whether the abuse or
injustice was committed by a foreign sovereign or the individuals’ own state
of nationality and, for the most part, irrespective of the presence of a war.139
The U.N. Charter embraces the natural law notion of these as “rights to
which all human beings have been entitled since time immemorial and to
which they will continue to be entitled as long as humanity survives.”140 As
such, these rights are inalienable—permanent and universal—and are
ingrained as one of the purposes of the U.N. Charter to “promot[e] and
encourag[e] respect for human rights and for fundamental freedoms for all
without distinction as to race, sex, language, or religion.”141 Thus, for the
first time in the international realm, the U.N. Charter articulated the formal
notion of sex equality as a core human rights tenet by “reaffirm[ing] . . . the
equal rights of men and women.”142
Following the U.N. Charter’s lead, the Universal Declaration of Human
Rights (Universal Declaration),143 the International Covenant on Civil and
Political Rights (ICCPR),144 and the International Covenant on Economic,
Social, and Cultural Rights (Economic Covenant),145 all expressly include
equality based on “sex.” These documents insist that “[e]veryone is entitled
to all the rights and freedoms . . . without distinction of any kind, such as
race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.”146
26, 1945, 59 Stat. 1031, U.N.T.S. 993, available at 1945 WL26967 (entered into force Oct. 24,
1945) [hereinafter U.N. CHARTER].
139. See MICHAEL AKEHURST, A MODERN INTRODUCTION TO INTERNATIONAL LAW 75-76 (5th
ed., 1984). Two other post-World War II events are noteworthy. First, economic development of
states has been polarized. Programs of aid that were envisioned without an understanding of the
various cultures and problems in various countries failed and led to schisms in theory and practice.
More recently, post-Cold War discord and its attendant results of increased nationalism, ethnic
strife, civil war, and human rights abuses for which the community of nations was not prepared,
have presented a grave challenge to the development of human rights law.
140. Louis B. Sohn, The New International Law: Protection of the Rights of Individuals
Rather Than States, 32 AM. U. L. REV. 1, 17 (1982).
141. U.N. CHARTER, supra note 138, art. 1, ¶ 3.
142. Id. Preamble.
143. Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3rd Sess., Supp.
No. 127, at art. 2, U.N. Doc. A/810 (1948) [hereinafter Universal Declaration].
144. International Covenant on Civil and Political Rights, G.A. Res. 2200A(XXI), 21 U.N.
GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966) (entered into force Mar. 23,
1976; ratified by the United States June 8, 1992) [hereinafter ICCPR].
145. International Covenant on Economic, Social, and Cultural Rights, G.A. Res.
2200A(XXI), 21 U.N. GAOR, 21st Sess., Supp. No. 16, at 49, U.N. Doc. A/6316 (1966) (entered
into force Jan. 3, 1976) [hereinafter Economic Covenant].
146. Universal Declaration, supra note 143, art. 2 (emphasis added). Similarly, the ICCPR
provides that
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Moreover, the thematic and regional human rights instruments that have
expanded and strengthened human rights foundations also expressly provide
for sex and gender equality. The three regional instruments aimed at the
protection of human rights, the European Convention for the Protection of
Human Rights and Fundamental Freedoms (European Convention),147 the
American Convention on Human Rights (American Convention),148 and the
African Charter on Human and Peoples’ Rights (African Charter),149 all
explicitly incorporate sex equality, as do other international human rights
instruments.150
Notwithstanding the international prohibition against sex-based
discrimination as confirmed in human rights documents, women are far from
attaining equality. As the short history of human rights jurisprudence has
shown, the “trickle-down theory of human rights does not serve any
population other than [the] relatively privileged males.”151 These distinctions
based on status are not surprising if one considers that in the domestic
[e]ach State Party to the present Covenant undertakes to respect and to ensure to
all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.
ICCPR, supra note 144, art. 2, para. 1 (emphasis added). In addition, in art. 26, the ICCPR provides
that, with respect to the nondiscrimination provisions, “the law shall prohibit any discrimination
and guarantee to all persons equal and effective protection against discrimination on any ground
such as . . . sex . . . .” Id. art. 26 (emphasis added). Finally, the Economic Covenant also provides
for non-discrimination on the part of the basis of sex. Economic Covenant, supra note 145, art. 2,
para. 2. In addition, the Economic Covenant provides that parties will “ensure the equal right of
men and women to the enjoyment of all economic, social and cultural rights set forth in the present
Covenant.” Id. art. 3.
147. European Convention for the Protection of Human Rights and Fundamental Freedoms,
Nov. 4, 1950, 312 U.N.T.S. 221, art. 14 (1950), signed in Rome Nov. 4, 1950 (entered into force
Sept. 3, 1953), in INTERNATIONAL LAW: SELECTED DOCUMENTS 2001-2002, at 462 (Barry E. Carter
& Phillip R. Trimble eds., 2001) [hereinafter European Convention]. The European Convention
was amended by Protocols 3, 5, 8, and 11, which entered into force on Sept. 21, 1970, Dec. 20,
1971, Jan. 1, 1990, and Nov. 1, 1998, respectively. Id.
148. American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123, art. 1
(1970), opened for signature Nov. 22, 1969 (entered into force July 18, 1978), in INTERNATIONAL
LAW: SELECTED DOCUMENTS 2001-2002, supra note 147, at 479 [hereinafter American
Convention].
149. African Charter on Human and Peoples’ Rights, June 27, 1981, 21 I.L.M. 58, art. 2
(1981), adopted by the Organization of African Unity at Nairobi, Kenya, June 27, 1981 (entered
into force Oct. 21, 1986), in INTERNATIONAL LAW: SELECTED DOCUMENTS 2001-2002, supra note
147, at 500 [hereinafter African Charter].
150. See generally supra notes 147-49.
151. Marsha A. Freeman & Arvonne S. Fraser, Women’s Human Rights: Making the Theory
a Reality, in HUMAN RIGHTS: AN AGENDA FOR THE NEXT CENTURY 103, 105 (Louis Henkin & John
Lawrence Hargrove eds., 1994).
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movements on which the human rights ideal are based all women, regardless
of race, were property, and nonwhite men and women could be slaves.
Thus, the notion of international human rights that emerged was
normative, rather than universal as the U.N. Charter aspired. Sociologist
Rhoda Howard made the following observation:
The easiest and clearest social distinction to make is between
men and women; in many societies, as our own language
reflects, the male is the standard of humanness and the female
is the deviation. As Simone de Beauvoir put it in her classic
feminist meditation, to be female is to be the existential
“Other.” . . . The female possessed of knowledge threatens the
orderly acquisition and delimitation of society’s cognitive
symbols created—in most cultures—by her male status
superiors; thus from Eve to medieval wise-women and beyond,
Judeo-Christian culture has punished the woman who exercises
the human capacity for self-reflection with its attendant threat
of making claims upon society.152
Women’s real entry into the human rights discourse occurred in 1975,
which was proclaimed International Women’s Year. That year, the first
World Conference on Women took place in Mexico City. It was followed
by the United Nations Decade for Women (1976-1985),153 and the second
World Conference on Women, held in Copenhagen in the middle of the
decade (1980). All these events focused on women and their condition with
the goal of bettering women’s lives.
Progress for women continued with the 1979 U.N. General Assembly’s
adoption of the Women’s Convention in 1979, which entered into force in
1981.154 For the first time in the international human rights discourse, an
international instrument was devoted exclusively to protecting and
enhancing women’s rights. The third World Conference on Women, again
seeking to improve women’s condition, took place in Nairobi in 1985.155
152. Rhoda E. Howard, Dignity, Community, and Human Rights, in HUMAN RIGHTS IN CROSSCULTURAL PERSPECTIVES: A QUEST FOR CONSENSUS 81, 88 (Abdullahi Ahmed An-Na’im ed., 1992)
(footnotes omitted) (emphasis in original).
153. For a thorough discussion of the impact of the U.N. Decade for Women on women’s
international human rights, see HILKKA PIETILA & JEANNE VICKERS, MAKING WOMEN MATTER: THE
ROLE OF THE UNITED NATIONS 75-83 (1994) (discussing, in part, the women’s movement of 19721974, which resulted in the Decade for Women).
154. Convention on the Elimination of all Forms of Discrimination Against Women, Dec. 18,
1979, 19 I.L.M. 33 (1980) (entered into force Sept. 3, 1981), in INTERNATIONAL LAW: SELECTED
DOCUMENTS 2001-2002, supra note 147, at 432.
155. See generally PIETILA & VICKERS, supra note 153 (providing information on the
evolution of the international women’s movement, beginning in the early 1970s).
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A series of U.N. conferences held in the 1990s solidified the momentum
and force of the international women’s rights movement. Starting with the
Rio Conference in 1992 (Earth Summit),156 and continuing with the 1993
World Conference on Human Rights (Vienna Conference),157 the 1994
International Conference on Population and Development (Cairo
Conference),158 the 1995 World Summit for Social Development (Social
Summit),159 the 1995 United Nations Fourth World Conference on Women
(Women’s Conference),160 and the 1996 United Nations Conference on
Human Settlements (Habitat II),161 the international community witnessed
the firm inclusion and participation of women at the nucleus of the human
rights discourse.
Together with the Women’s Convention,
[t]he consensus documents that comprise this blueprint [for
women’s equality and] address issues ranging from the
environment to education; from universality of rights to respect
for cultural traditions; from population to sustained economic
growth and sustainable development; from gender equity and
equality to the empowerment of women; from the role of the
family to the role of the government; from health to migration;
from equity among generations to the placing of people at the
center of development; from the recognition that social
development is both a national and international concern to the
recognition of the need to integrate economic, cultural, and
social policies to achieve desired ends; [and] from education to
employment to respect for women to the need for affordable
housing so that the health, education, and welfare goals of
156. United Nations Conference on Environment and Development, Rio De Janeiro, Brazil,
U.N. Doc. E/CN.6/1995/5, Ch. 24 (endorsing Agenda 21, which extensively incorporated activities
for strengthening the role of women in sustainable development, including a separate chapter on
women). Agenda 21, at chapter 24, is entitled “Global Action For Women Towards Sustainable and
Equitable Development.” Id. ¶ 24.11 (providing that all entities in the implementation of Agenda
21, “should ensure that gender considerations are fully integrated into all the policies, programmes
and activities”). See also Report of the United Nations Conference on Environment and
Development, Agenda 21: Program of Action for Sustainable Development, U.N. GAOR, 46th
Sess., Agenda Item 21, U.N. Doc. A/CONF.151/26 (1992) [hereinafter Agenda 21].
157. Vienna Declaration and Programme of Action, June 25, 1993, U.N. Doc.
A/CONG.157/23.
158. Report of the International Conference on Population and Development, Oct. 18, 1994,
U.N. Doc. A/CONF.171/13.
159. Report of the World Summit for Social Development, Apr. 19, 1995, U.N. Doc.
A/CONF.166/9.
160. Beijing Declaration and Platform for Action, Fourth World Conference on Women, Sept.
15, 1995, U.N. Doc. A/CONF.177/20 (1995) & A/CONF.177/20/Add.1.
161. Statement of Principles and Commitments in Global Plan of Action: The Habitat Agenda,
U.N. Doc. A/CONF.165/PC.3/4 (1996).
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individuals, of families, of governments, and of the global
community can be met.162
Significantly, women have played a critical role in the drafting, acceptance,
and implementation of all of these instruments.
As was the case with the laws of Cuba, however, women’s international
legal rights are dramatically different from women’s lived reality everywhere
around the world.163 As the U.N. Report provides, women are still far from
attaining equality in any aspect of their lives in any country in the world.164
B. United States Laws
The basic right to equality in the United States is found in the Fourteenth
Amendment of the U.S. Constitution.165 Significantly, the fact that it is an
amendment indicates that the original Constitution did not contemplate a
concept of equality. To be sure, this is not surprising, as the framers were
representative of the elite and privileged.166 They were married men at a time
when women were chattel; they were slaveowners167 as well. As far as sex
equality is concerned, the sentiment embodied in the Declaration of
Independence was intentionally gendered, with “all men [being] created
equal.”168
The Fourteenth Amendment itself, on which sex and gender equality
rights are now grounded, was intended to eliminate race, not sex,
discrimination. In fact, in the late 1800s, the Supreme Court held that the
Fourteenth Amendment did not grant women the right to vote169—a right
women did not enjoy until 1920 when the Nineteenth Amendment to the
Constitution was passed.170 Obtaining the right to vote did not, however,
confer on women all the rights of full citizenship, such as the right to serve
in the military, sit on juries, or work at the employment of their choice.
162.
163.
164.
165.
166.
Hernández-Truyol, supra note 134, at 5.
See id. at 34-35.
See id. at 24; UNHDR 1995, supra note 120, at 29.
U.S. CONST. amend. XIV.
See JOE R. FEAGIN, RACIST AMERICA: ROOTS, CURRENT REALITIES, AND FUTURE
REPARATIONS 9 (2000). See generally LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW
(1985).
167. See FEAGIN, supra note 166, at 9-14, 41 (suggesting that at least half of the signatories
to the Declaration of Independence were slave owners and involved in the slave trade); see also
Ursula Vogel, Marriage and the Boundaries of Citizenship, in THE CONDITION OF CITIZENSHIP 76,
79 (Bart van Steenbergen ed., 1994).
168. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776) (emphasis added).
169. Minor v. Happersett, 88 U.S. (21 Wall.) 162, 178 (1874).
170. U.S. CONST. amend. XIX (stating that “[t]he right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any State on account of sex”).
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Another late 1800s case, while not a constitutional sex equality case,
vividly presents the gendered view of women’s proper location in U.S.
society.171 In Bradwell v. Illinois,172 the Supreme Court upheld Illinois’s
rejection of Myra Bradwell’s application to practice law.173 In her first
attempt, she was denied because, “as a married woman [she] would be
bound neither by her express contracts nor by those implied contracts which
it is the policy of the law to create between attorney and client.”174 When she
challenged that conclusion, the state court said that women were ineligible
to practice law.175 In her appeal to the federal system, she claimed that her
“privileges or immunities” as a United States citizen were being abridged by
the prohibition.176 The Court, holding that the right to practice law was not
a protected right under the federal system, but rather a right to be regulated
by the states,177 concluded that there was no violation of the Fourteenth
Amendment.178
Most revealing is the Court’s honest, albeit disturbing, attribution of the
proper sphere for women. The Court quoted at length from the state court:
That God designed the sexes to occupy different spheres of
action, and that it belonged to men to make, apply and execute
the laws, was regarded as an . . . axiomatic truth. In view of
these facts, we are certainly warranted in saying that when the
legislature gave to this court the power of granting licenses to
practice law, it was with not the slightest expectation that this
privilege would be extended [equally to men and] women.179
The Supreme Court’s opinion itself then embraces the separate spheres
ideology:
[T]he civil law, as well as nature herself, has always recognized
a wide difference in the respective spheres and destinies of man
and woman. Man is, or should be, woman’s protector and
defender. The natural and proper timidity and delicacy which
belongs to the female sex evidently unfits it for many of the
occupations of civil life. The constitution of the family
organization, which is founded in the divine ordinance, as well
as in the nature of things, indicates the domestic sphere as that
171.
172.
173.
174.
175.
176.
177.
178.
179.
See generally Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872).
83 U.S. (16 Wall.) 130 (1872).
Id. at 138-39.
In re Bradwell, 55 Ill. 535, 535-36 (Ill. 1876).
Id. at 539.
Bradwell, 83 U.S. at 138.
Id. at 138-39.
Id. at 139.
Id. at 132-33 (quotation marks omitted).
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which properly belongs to the domain and functions of
womanhood. The harmony, not to say identity, of interest and
views which belong, or should belong, to the family institution
is repugnant to the idea of a woman adopting a distinct and
independent career from that of her husband. So firmly fixed
was this sentiment in the founders of the common law that it
became a maxim of that system of jurisprudence that a woman
had no legal existence separate from her husband, who was
regarded as her head and representative in the social state . . .
a married woman is incapable, without her husband’s consent,
of making contracts which shall be binding on her or him.180
It was not until 1971 that the Fourteenth Amendment was interpreted to
prohibit state laws that created different rights for men and women.181 Since
then, the Fourteenth Amendment has served to extend sex equality rights.
However, these are not necessarily rights of full equality in all cases.
For example, the level of scrutiny required for an analysis of sex equality,
while not the lowest level of “rational basis,”182 also is not the highest level
of strict scrutiny as it is in cases of race discrimination.183 Rather, some
middle ground has evolved so that an “intermediate” scrutiny level has been
created for these sex-based classifications.184 Actually, in Frontiero v.
Richardson,185 four Justices proposed that the strict scrutiny standard would
be the proper level of review for sex discrimination cases.186 However, such
a suggestion, to date, has not been adopted.
Moreover, there are cases where it becomes patent that women are still
seen as belonging in a separate sphere. In Rostker v. Goldberg,187 men
180. Id. at 141 (Bradley, J., concurring).
181. Reed v. Reed, 404 U.S. 71, 76 (1971).
182. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 366-67 (2001) (articulating the
rational basis review standard as State activity that serves a rational purpose to further a legitimate
government interest); see also Richard B. Saphire, Equal Protection, Rational Basis Review, and
the Impact of Cleburne Living Center, Inc., 88 KY. L.J. 591, 597 (1999-2000) (stating that
“[a]rguably, rational basis (or ‘rationality’) review represents the first and oldest strand of modern
equal protection analysis”). See, e.g., id. at 597 n.24.
183. See Korematsu v. United States, 323 U.S. 214, 216 (1944) (establishing that “all legal
restrictions which curtail the civil rights of a single racial group are immediately suspect. That is
not to say that all such restrictions are unconstitutional. It is to say that courts must subject them
to the most rigid scrutiny.”).
184. See Craig v. Boren, 429 U.S. 190, 197 (1976) (establishing an intermediate level of
scrutiny for sex equality, requiring a sex-based classification to “serve important governmental
objectives and . . . be substantially related to achievement of those objectives”).
185. 411 U.S. 677 (1973).
186. Id. at 682 (reasoning that sex-based classifications are inherently suspect and should
receive strict scrutiny review).
187. 453 U.S. 57 (1981).
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253
challenged the male-only draft based on equal protection principles.188 The
Court found that such a male-only category did not constitute sex
discrimination, as men and women were not similarly situated.189 The sexes’
different situations were based on the prohibition of women from positions
of combat.190 Hence, the male-only registration was said to make sense, as
it was a list from which to call persons who were combat-ready (or more
accurately, combat-able).191
Similarly, in Geduldig v. Aiello,192 the Court considered whether
exclusion of pregnancy and childbirth benefits from an insurance plan
constituted sex discrimination as prohibited by the Constitution.193 The
Court, finding no equal protection violation and noting that not all
disabilities must be covered, concluded that there was no discrimination as
the proper categories for comparison were pregnant persons and nonpregnant persons.194 Because the latter category included both men and
women, there was no sex discrimination.195
This brief overview of U.S. law shows both that there is no consistency
in the treatment of sex under the Constitution, and that women’s separate
sphere is still a reality today. Indeed, a recent study confirms such
separateness by reporting that attitudes toward working mothers have not
changed—notwithstanding the reality that 56% of women with infants and
two-thirds of women with preschool children work outside the home.196
Sixty-eight percent of fathers and 69% of mothers agreed with the following
statement: “It is much better for the family if the father works outside the
home and the mother takes care of the children.”197 Echoes of Bradwell
resonate two centuries later. These are the equality laws governing Cuban
women living in the United States. As with the laws in Cuba and the
international laws on equality, legal and lived realities are vastly different.
IV. CULTURE INSIDE AND OUT
188. See id. at 78.
189. Id.
190. Id. at 79.
191. Id.
192. 417 U.S. 484 (1974).
193. Id. at 492.
194. Id. at 497.
195. See id.
196. See Tamar Lewin, Study Finds Little Change in Working Mothers Debate, N.Y. TIMES,
Sept. 10, 2001, at A26.
197. Id. (quotation marks omitted).
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The concept of Cuban culture is foundational to understanding the
paradoxes that emerge in Cuban law and society, both inside and outside the
island’s territorial borders—paradoxes underscored by the disjunction that
exists between the reality of gender and sex equality and the law’s equality
mandate. Other social structures—the family, work, and politics, to name but
three—also reflect gendered inequities. Indeed, the subordinating legal and
social consequences of gender are manifested daily in Cuban women’s
lives—both in this and that Cuba.
Octavio Paz, in El Laberinto de la Soledad, presented the popular image
of womanhood that prevails in the Latina/o mind.198 This Nobel prizewinning author wrote as follows:
Como casi todos los pueblos, los mexicanos consideran a la
mujer como un instrumento, ya de los deseos del hombre, ya de
los fines que le asignan la ley, la sociedad o la moral. Fines,
hay que decirlo, sobre los que nunca se le ha pedido su
consentimiento y en cuya realización participa sólo
pasivamente, en tanto que “depositaria” de ciertos valores.
Prostituta, diosa, gran señora, amante, la mujer transmite o
conserva, pero no crea, los valores y energías que le confían la
naturaleza o la sociedad. En un mundo hecho a la imagen de
los hombres, la mujer es sólo un reflejo de la voluntad y querer
masculinos. Pasiva, se convierte en diosa, amada, ser que
encarna los elementos estables y antiguos del universo: la
tierra, madre y virgen; activa, es siempre función, medio, canal.
La feminidad nunca es un fin en sí mismo, como lo es la
hombría.199
Beyond the parameters of any discussion with respect to what should be the
proper location of women in society generally, or of women en las
198. See OCTAVIO PAZ, EL LABERINTO DE LA SOLEDAD (1997).
199. Id. at 57. Author’s translation:
Like almost all other peoples, Mexicans consider woman as an instrument,
object of masculine desires, object of the ends assigned to her by morality, society
and the law. It must be admitted that she has never been asked to consent to these
ends and that she participates in their realization only passively, as a “repository”
of certain values. Whether as prostitute, goddess, grande dame or mistress, woman
transmits or preserves—but does not create the values and energies entrusted to
her by nature or society. In a world made of man’s image, woman is only a
reflection of masculine will and desire. When passive, a woman becomes a
goddess, a beloved one, a being who embodies the ancient, stable elements of the
universe: the earth, motherhood, virginity; when active, she is always a function,
a means to an end, a vehicle. Femininity, unlike manhood, is never an end in itself.
Id.
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sociedades cubanas more specifically—in the context of family, home,
work, or the public sector—Paz’s proffered description is not one that even
remotely centers on, or even recognizes, the concept of sex equality.200
Rather, women’s role as presented by Paz is one of expectations and
stereotypes—expectations and stereotypes that nevertheless constitute reality
for women who are cubanas.201
As the quoted passage reveals, the Latina is defined by the Latino in his
dominant position in the family, church, and state.202 The Latina did not
participate in, or consent to, the definition that determines her identity. She
is fabricated and sculpted in the image, desire, and fantasy of the Latino.203
The Latina is a vessel relegated to be the repository of values that she did not
create but that she is responsible to preserve and transmit.
The cultural expectations and interpretations of Latinas, simply because
of their sex, within the cultura Latina tracks the dominant paradigm’s
construction of sex. Like all girls, Latinas are socialized to be feminine, to
be mothers and wives. Society mandates that their most important aspiration
is to get married, have children, and serve their families. Our
playthings—muñequitas, juegitos de cocina y de casa204—are to prepare us
for our adult life: home-making and child and husband care-taking.
The feminist critique of such male-defined, female-role normativity is
extensive. Sociologists, philosophers, and legal scholars alike have identified
the male as the standard of humanness and the female as less than the
standard.205
The cultura Latina, including its predominantly Catholic religious
mandates, intrudes to aggravate Latinas’ gender subordination. The Latina
identity is developed in the context of the “ideal woman” fabricated in the
mold of the Virgin Mary,206 a construct called marianismo that “glorifie[s]
202. See id.; see also generally Berta Esperanza Hernández-Truyol, Borders (En)Gendered:
Normativities, Latinas, and a LatCrit Paradigm, 72 N.Y.U. L. REV. 882 (1997).
203. See RUTH BURGOS SASSCER & FRANCISCA HERNÁNDEZ GILES, LA MUJER MARGINADA
POR LA HISTORIA: GUIA DE ESTUDIO 83 (1978) (noting that the role of Latinas is traditionally
reproductive, domestic, one of homemaking and child raising, and subordinate to men).
204. Author’s translation: dolls, kitchen sets, and homemaker games.
205. See Howard, supra note 152, at 88. See also generally SIMONE DE BEAUVOIR, THE
SECOND SEX (1989); SANDRA LIPSITZ BEM, THE LENSES OF GENDER: TRANSFORMING THE DEBATE
ON SEXUAL INEQUALITY (1993). See, e.g., CATHARINE A. MACKINNON, FEMINISM UNMODIFIED:
DISCOURSES ON LIFE AND LAW (1987).
206. Significantly, 85% of Latinas consider themselves Catholic, and many hold political and
social views that are influenced by religious doctrine. See BONILLA-SANTIAGO, supra note 17, at
15. The imagery of the Virgin Mary as the female ideal is firmly rooted in and praised by culture.
As one author stated, “Some Chicanas are praised as they emulate the sanctified example set by [the
Virgin] Mary. The woman par excellence is mother and wife. She is to love and support her
husband and to nurture and teach her children. Thus, may she gain fulfillment as a woman.” Id. at
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[Latinas] as strong, long-suffering women who ha[ve] endured and kept
Latino culture and the family intact.”207
[M]arianismo defines the ideal role of woman. And what an
ambitious role it is, taking as its model of perfection the Virgin
Mary herself. Marianismo is about sacred duty, self-sacrifice,
and chastity. About dispensing care and pleasure, not receiving
them. About living in the shadows, literally and figuratively, of
your men—father, boyfriend, husband, son—your kids, and
your family. Aside from bearing children, the marianista has
much in common with una monja de convento, a cloistered
nun—but the order she enters is marriage, and her groom is not
Christ but an all too human male who instantly becomes the
single object of her devotion for a lifetime.
....
[M]arianismo insists you live in a world which no longer
exists and which perpetuates a value system equating
perfection with submission. Veneration may be the reward
tendered to la mujer buena, but in actuality you end up feeling
more like a servant than a subject for adoration. Indeed, the
noble sacrifice of self (the ultimate expression of marianismo)
is the force which has for generations prevented Hispanic
women from even entertaining the notion of personal
validation. Yet such female subjugation is not only practiced
today, it is—ironically—enforced by women, handed down as
written in stone by our mothers, grandmothers, and aunts! We
have reduced the mandates of marianismo to a set of iron-clad
rules of behavior, ten commandments if you will.208
Culture teaches us to be pulcra (pure) and passive; we are discouraged
from activity and aggressiveness. We also are taught early, and severely, the
meaning of respeto (respect): we must be deferential to our elders, and to all
the men in our lives—fathers, brothers, husbands, uncles, cousins—and ask
permission for everything.209 In sum, the Latina is supposed to be a selfsacrificing, virgin mother, a saint, super-human. She is deemed a failure,
11 (quotation marks omitted).
207. Id. (emphasis added); see also HONDAGNEU-SOTELO, supra note 17, at 9. “The ideological
corollary [to machismo] for women, . . . marianismo (marianism), is modeled on the Catholic
Virgin Madonna, and prescribes dependence, subordination, responsibility for all domestic chores,
and selfless devotion to family and children.” Id. (citation omitted).
208. ROSA MARIA GIL & CARMEN INOA VAZQUEZ, THE MARIA PARODOX: HOW LATINAS CAN
MERGE OLD WORLD TRADITIONS WITH NEW WORLD SELF-ESTEEM 7-8 (1996).
209. See BURGOS SASSCER & GILES, supra note 203, at 85 (observing that woman’s most
important function is to marry and serve her family).
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however, if in her humanness she falls short of this super- and supra-human
religious ideal.
This marianista—the mythical ideal Latina—sharply contrasts with its
better known counterpart: machismo, which molds men as “cold,
intellectual, rational, profound, strong, authoritarian, independent, and
brave.”210 One recent book describes machismo and characterizes it as
having a “dark side:”
[M]achismo mandates that men have options, and women have
duties. It means that a man’s place en el mundo, in the world,
and a woman’s place is en la casa, in the home. It means that
your brother is praised for being ambitious, while you are
discouraged for that same quality. And it means that first your
father, then your brothers, then your husband give the orders
and you obey them.211
Lest anyone think that these descriptions of social and familial
expectations and roles are not realistic today and are from el tiempo de las
nanas (from the dark ages), they appear in a book The Maria Paradox,212
written in 1996 by two Latinas—one Cuban and one Dominican, both of
whom hold doctorates and practice in the mental health field in New York
City.213
Having engaged in this brief exploration of cultural gender tropes it is
proper to ask whether this and that Cuba are geographies that still feel as
Octavio Paz so colorfully captured. Significantly, it is important to look at
each Cuba separately to explore whether the political and legal norms
prevalent in each society make a difference with respect to the role of
women as ascribed by the guardians of normativity. To be sure, before el
exilio, with Cuba in one place, the cultural norms described by Paz were
uniformly accepted. With the post-revolutionary separation into two Cubas,
and the location of women inside the island within a socialist society and
women in exile in a society with non-Latina/o roots, an interrogation of
whether the political and legal conceptions of equality have an impact on
cultural norms is appropriate.
210. BONILLA-SANTIAGO, supra note 17, at 11-12 (citation omitted) (explaining that “many
Latin males are expected to show their manhood by behaving in a strong fashion, by demonstrating
sexual powers, and by asserting their authority over women”). The author notes that both gender
role descriptives are a socio-cultural phenomena. Id. at 11.
211. GIL & VAZQUEZ, supra note 208, at 6; see also HONDAGNEU-SOTELO, supra note 17, at
9 (“Machismo calls for men to be sexually assertive, independent, and emotionally restrained, to
wield absolute authority over their wives and children, and to serve as family breadwinners.”
(footnote omitted)).
212. GIL & VAZQUEZ, supra note 208, at 11.
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A. The Myth of Women’s Equality in Castro’s Cuba
The revolutionary equality notions, mostly encoded in law, were noble
and perhaps partly realized insofar as one considers the improvements in
health, education, and welfare discussed above. In reality, gender equality
remains aspirational. As the disparities in employment and government
policies discussed reveal, the reality is that sex equality is a persistent myth.
As detailed, the revolutionary messages regarding equality are often
inconsistent. Beyond the double standard evident in its employment policies,
and contrary to the “rule of law,” the revolution actively reinforced
traditional domestic arrangements by paying for honeymoons.214 The
revolutionary government encouraged women to join the labor force because
it considered housewives “un-integrated” and thought that they would raise
children that also would be un-integrated.215 Also, engaging in paid
employment was deemed to be a key to women’s emancipation.216 Yet, when
family emergencies arise, it is only women’s, not men’s, time at work that
becomes dispensable. In short, the revolutionary government’s policies
giving women, but not men, time off work to care for family or to stand in
food lines, simply and actively reinstated and reinforced gendered roles.217
Moreover, while domestic tasks are seen as unproductive and unpleasant,
the state has failed to provide the means to relieve women of their double
burden218—working outside of the home all day, and then working at the
home and caring for their children and husbands at night. To be sure, the law
requires men’s equal participation in housework and child care.219 The
reality, as studies have shown, is vastly different. Working women have an
average of only two hours and fifty-nine minutes of free time a day.220
Women spend six hours and twenty-nine minutes at their job, and then four
hours and four minutes in domestic chores.221 In contrast, men, on the
average, spend seven hours and forty-eight minutes working at their jobs,
and then only thirty-two minutes on housework.222
The result of the persistence of traditional roles is that cultural tropes
trump legal “paper” rights. “[M]en are viewed as inherently unreliable
regarding family responsibilities” and women continue to be seen primarily
214. Lois M. Smith & Alfredo Padula, The Cuban Family in the 1980s, in TRANSFORMATION
supra note 109, at 175, 177.
215. See id.
216. Id.
217. Id. at 179.
218. See id. at 177.
219. See id. at 177-78.
220. Riveira, supra note 79, ch.II, 34.
221. Id.
222. Id.
AND STRUGGLE,
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as mothers, wives, and homemakers.223 Indeed, formal government policies
have actually reinforced traditional gender roles and placed primary family
care burdens on women.224
For example, during the 1960s and 1970s, the government promulgated
three major legal changes designed to lift the double burden of work and
home-making on women.225 While the goal was accomplished to a degree,
the traditional views behind the perpetuation of the burden on women
remained stubbornly unchanged as the laws and policies behind them were
based on the assumption that a cubana’s place is in the home.226
One such legal change was the 1975 Family Code, which purported to
create a new equality between men and women in marriage.227 It has been
interpreted to require an equal division of housework and child rearing,228 a
vision that is even incorporated into the marriage ceremony. But these legal
entitlements are virtually impossible to enforce, as they rely on women
taking their husbands to court, with the result of the child- and house-care
obligations remaining firmly planted on women’s shoulders.
The second major legal change that has, nonetheless, not effected real
change is the 1974 Maternity Law, which gives women an eighteen-week
paid maternity leave—six weeks prior to and twelve weeks subsequent to
delivery; paid days off for doctors’ visits; an optional nine-month unpaid
leave for new mothers; and a six-month unpaid leave for women with
children under age sixteen to attend to family matters.229 To be sure, such
provisions are beneficial to, and thus, desirable for women and children. As
there exists no paternity leave, however, the law serves to entrench women’s
location as being in the home.230 In fact, in Cuba, work is an obligation from
which women with small children, but not similarly situated men, are
exempt.231
A third major legal reform aimed at enabling women’s workforce
participation is the child-care facilities called children’s circles. These
cooperatives take in children from forty-five days of age (an age that
essentially corresponds to the end of the paid maternity leave) until age six,
223. See Smith & Padula, supra note 214, at 178.
224. Id. at 179.
225. See id. at 178-79.
226. See id. at 178.
227. See FAMILY CODE (Cuba), Law No. 1289, Feb. 14, 1975, art. 24, 26 (providing that
marriage partners have equal rights and duties and that they both must care for the family); see also
id. art. 27 (stating that both spouses must contribute to the needs of the family by sharing household
duties and childcare, regardless of whether only one or both partners work outside the home); id.
art. 28 (stating that both partners have the right to practice their profession or skill).
228. See, e.g., Smith & Padula, supra note 214, at 179.
229. See id.
230. See id.
231. See id.
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which is the age at which children begin school. A child can stay for the
average workday or until Saturday afternoon. The children get three meals
a day, snacks, a bath, naps, and learning and play time. There is a sliding
scale fee for the circles. Like the Family Code and Maternity Law, these
circles may facilitate women’s labor force participation, but the underlying
basis of the accommodations is that it is women’s obligation to provide these
services.232
In sum, notwithstanding the post-Castro revolutionary philosophy of
gender equality, the reality is persistent inequality. This inequality can be
traced to the cultural tropes guiding women’s roles in society—being the
homemakers, and child- and family-caretakers. The condition of women
only worsened during the “special period”—the economically depressed
post-Soviet-support era.233
A recent book, ¡No Es Fácil! Mujeres Cubanas y la Crisis
Revolucionaria, written by a Spanish anthropologist, Isabel Holgado
Fernández, who has spent long periods of time living in Cuba, chronicles
much of the life of women in Cuba today.234 She confirms that women bear
the brunt of the economically difficult times by doing the double duty of
engaging in productive work outside the home and keeping the home and
society together.235 This duty is based upon the inability of the revolution to
eradicate discriminatory sex roles notwithstanding the gains attained by
women. Rather, the socialist regime has enabled the reproduction of cultural
patterns that consider women the only ones responsible for the care of the
home and children by its ideological privileging of economic issues and
dictating, but not enforcing, sex equality.236
Indeed, the revolution did nothing to change the focus on family or the
structures of extended families, all the responsibility of women. Women’s
labor force participation was not free of persistent sexism237 notwithstanding
their increased presence in “male” jobs.238 In fact, even after the revolution,
laws prohibited women from holding certain jobs considered dangerous, and
hundreds of jobs were listed as exclusively women’s work.239 Castro himself
justified the exclusion of women from some productive work assignments
by noting that women had other obligations in society, particularly as the
232. See FERNÁNDEZ, supra note 16, at 92-94.
233. See id. at 46 (describing one woman’s experience having to work outside the home and
care for the home while her husband just goes to the beach and returns home expecting food on the
table). This book consists of not only text but narratives of the experiences of over sixty Cuban
women. See generally id.
235. See id. at 12, 94.
236. See id. at 13.
237. See id. at 83.
238. See id. at 86.
239. See id.
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ones who raise human beings.240 Specialists justified the sex-based
limitations for women in the work force because the feminine organism has
limitations and women suffer constant changes during menstruation and
during maternity.241
Concerning sex equality, Article 43 of the 1976 Constitution
paradoxically provides that women have equal rights in the economic,
political, social, and familial realms, and that to guarantee these rights,
consideration must be given to grant women jobs that are compatible with
their physical makeup.242 As these attitudes make patent, machista prejudices
and attitudes prevail in socialist Cuba—both at home and at work.243
Women’s roles and appropriate locations in the social structure remain as
mothers and wives, caretakers and homemakers, and givers and
sacrificers.244
B. Inequality en el Exilio
Initially, it is important to note that there is a dearth of information about
the condition of Cuban women in exile. We know that Cuban men and
women together have higher earnings and levels of education than other
Latina/o groups in the United States.245 We also know that Latinas have
lower earnings and education than Latinos.246 It is thus not surprising that
cubanas earn less and attain lower levels of education than cubanos,
although more recent numbers show that women are surpassing men in some
areas of education, such as the conferral of masters degrees.247 These results,
of course, are predictable if the cultural sex-role mandates are in place as
women must devote their primary attention to home and family at the
expense of work and individualism.
The available data also allows the conclusion that, based on a majority
of society’s gender role expectations, the economic and educational
shortcomings of Latinas in the United States is, at least in part, due to their
240. See id. at 91.
241. See id. (stating “e[s] necesario limitar la libertad de acceso a algunos trabajos ‘porque el
organismo femenino no tiene sus limitantes y la mujer sufre constantes cambios durante la
mestruación y la maternindad” (footnote omitted)).
242. See id. at 93.
243. See id. at 95, 123.
244. See id. at 123, 125, 127, 131, 133, 136, 138, 146, 160, 178, 186, 190, 192, 194, 198, 199,
250, 255, 281.
245. Berta Esperanza Hernández-Truyol, Building Bridges—Latinas and Latinos at the
Crossroads: Realities, Rhetoric and Replacement, 25 COLUM. HUM. RTS. L. REV. 369, 394-95
(1994); see also Uva de Aragón, La Mujer Cubana: Historia e Infrahistoria (El Exilio), in LA
MUJER CUBANA: HISTORIA E INFRAHISTORIA 79, 81-83 (2000).
246. Berta Esperanza Hernández-Truyol, Las Olvidadas-Gendered in Justice/Gendered
Injustice: Latinas, Fronterás and the Law, 1 J. GENDER RACE & JUST. 353, 358-59 (1998).
247. Aragón, supra note 245, at 83, 85.
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sex, based on a majority of society’s gender role expectations.248 Beyond the
sex-based discriminations that Latinas experience because of their sex,
Latinas further encounter the barriers erected by their multiple
otherness249—their race, ethnicity and possibly language, religion, and
sexuality.250
A significant factor that distinguishes between cubanas en Cuba and
cubanas en el exilio is the migration experience. Consequently, it is
appropriate to explore the impact of migration on sex roles. It is well
established that migration has an impact on gender roles and sexuality as
“the crossing of borders through migration provides the space and
‘permission’ to cross boundaries and transform their sexuality and sex
roles.”251 Thus, cubanas emerging from a society burdened by traditional
Spanish sex roles might find different options in a modern society. Such
changes are often difficult, however, because “[t]he internalization of
cultural and familial norms has deep roots in the psychology and identity of
all human beings.”252
It is important to note that with migration and the stresses that migration
effects, communities often rely on the enforcement of traditional gender
roles for continuity of their life experience. Significantly,
sexual and gender-role[s] . . . of women serve a larger social
function beyond the personal. They are used by enemies and
friends alike as proof of the morality—or decay—of social
groups or nations. In most societies, women’s sexual behavior
and their conformity to traditional gender roles signify the
family’s value system.253
People who feel a need to maintain old values in a new setting become the
guardians of morality and tradition.
248. See generally Hernández-Truyol, supra note 202, at 911-20.
249. Id. at 892. It should be noted that cubanas in Cuba will be “others” only if racially
different and/or if lesbians, while cubanas in the United States will be others simply because of
their cubanidad; their color and sexuality as well as their language and religion are additional
deviations from the estado unidense normativity. See id.
250. Id. at 892, 914; see also Hernández-Truyol, supra note 246, at 400. While it is beyond
the scope of this Essay, it is noteworthy that inequality based on the combined otherness of sex and
race persist both inside and outside of Cuba, with these realities being complicated and exacerbated
by minority sexuality. See generally FERNÁNDEZ, supra note 16; Manzor-Coats, supra note 11;
OLIVA M. ESPÍN, WOMEN CROSSING BOUNDARIES: A PSYCHOLOGY OF IMMIGRATION AND
TRANSFORMATIONS OF SEXUALITY (1999). Those explorations, however, are a separate project.
251. ESPÍN, supra note 250, at 5.
252. Id.
253. Id. at 6.
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263
....
Women’s roles become the “bastion” of tradition, and
women’s bodies become the site for struggles concerning
disorienting cultural differences. . . . While men are allowed
and encouraged to develop new identities in the new country,
girls and women are expected to continue living as if they were
still in the old country. . . . They are often forced to embody
cultural continuity amid cultural dislocation.254
Frequently, as has happened with Cubans, the home culture becomes
idealized, with its values, characteristics and customs—including strictly
defined and ascribed gender roles—being representative of something better
that was left behind.255 This phenomenon is humorously captured in a short
story, In Cuba I Was a German Shepherd, written by a contemporary cubana
en el exilio author.256 The story is told by an older exilado cubano, Máximo,
who regularly tells stories to his cohorts as they play dominoes in Little
Havana.257 The story really is about Máximo, the storyteller, and the impact
of exile on lives as well as about sex roles.258 But as told by Máximo, the
story is ostensibly about
Juanito the little dog . . . .
....
[Juanito] is just off the boat from Cuba. He is walking
down Brickell Avenue. And he is trying to steady himself, see,
because he still has his sea legs and all the buildings are so tall
they are making him dizzy. He doesn’t know what to expect.
He’s maybe a little afraid. And he’s thinking about a pretty
little dog he knew once and he’s wondering where she is now
and he wishes he were back home.
....
He’s not a depressive kind of dog, though. . . . He’s very
feisty. And when he sees an elegant white poodle striding
toward him, he forgets all his worries and exclaims, ‘O Madre
254. Id. at 6-7 (citation omitted); see also ANA MENÉNDEZ, IN CUBA I WAS A GERMAN
SHEPHERD 73, 89, 145-46, 201 (2001).
255. ESPÍN, supra note 250, at 23; MENÉNDEZ, supra note 254, at 102.
256. MENÉNDEZ, supra note 254.
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de Dios, si cocinas como caminas . . .’ [oh mother of god if you
cook like you walk. . . .]
....
[B]ut the white poodle interrupts and says, ‘I beg your pardon?
This is America—kindly speak English.’ So Juanito pauses for
a moment to consider and says in his broken English, ‘Mamita,
you are one hot doggie, yes? I would like to take you to movies
and fancy dinners.’
....
So Juanito says, ‘I would like to marry you, my love, and
have gorgeous puppies with you and live in a castle.’ Well, all
this time the white poodle has her snout in the air. She looks at
Juanito and says, ‘Do you have any idea who you’re talking to?
I am a refined breed of considerable class and you are nothing
but a short, insignificant mutt.’ Juanito is stunned for a
moment, but he rallies for the final shot. He’s a proud dog, you
see, and he’s afraid of his pain. ‘Pardon me, your highness,’
Juanito the mangy dog says. ‘Here in America, I may be a
short, insignificant mutt, but in Cuba I was a German
shepherd.’259
This story reflects the strong pull against loss of cultural identity effected
by migration and the desire to keep traditions in its wake.260 As discussed,
these are primarily preserved by women who are seen, as Paz’s quote
confirms, as the vessels for the transmission of culture.261
An interesting fact concerning cubanas en el exilio is that their rate of
participation in the work force is higher than other Latinas and higher than
their Angla and African-American women counterparts.262 In part, this labor
force participation is made possible because of the traditional family patterns
which signify that older family members—typically grandmothers—are
present in the household and take over the child care and home-making
obligations such as cooking and cleaning.263 Thus, while cubanas in exile
have turned to work outside the home, the traditional lifestyle of multiple
259. Id. at 27-28.
261. See supra note 199 and accompanying text; see also ESPÍN, supra note 250, at 146, 149
(“Because women are expected to preserve culture and traditions, immigrant women who are
mothers are expected to be the carriers of culture for their children in the new country.”).
262. Aragón, supra note 245, at 82.
263. Id.
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265
generations under one roof has enabled the preservation of cultural gender
roles.
To be sure, cubanas’ increased participation in the labor force defied the
norm, dictating that married women should not work outside the home
because it constitutes a show of independence which is an affront to male
authority.264 Tradition translates women’s dependence and male authority to
respect and family honor; to the proper location of men’s and women’s lives:
the man labors outside the home to provide for his family and the woman
dedicates herself—engages in her labor—to home and family.265
Notwithstanding these cultural mandates, cubanas en el exilio justified
their labor outside the home based on the economic exigencies of exile.
Thus, acts that would have been outlawed became befitting of, and
respectable for, the female sex because they were contextualized within their
proper sphere. Employment outside the home was viewed as mothers’ and
wives’ fulfillment of their proper obligation to their families.266 This
perspective eradicated the conflict generated by the competing cultural
requirements; on the one hand defining women’s primary obligations as
caring for their families, and on the other hand viewing employment outside
the home as disrespectful and impugning family honor.
This ability to render coherent competing cultural gendered norms,
however, did not translate into shifting expectations inside the home. Much
like their counterparts in Castro’s Cuba, the changed conditions with respect
to participation in productive labor did not alter the gendered expectations
inside the home. When a woman arrived home after a long day’s work, she
still was responsible for the duties in her “proper” sphere: preparing dinner,
doing laundry, helping schoolchildren with homework, caring for the older
members of the extended-family household, and serving cafecito to her
husband and his friends “who in the living room would discuss how to
topple Castro.”267 There are some indications that the influence of U.S.
society has seeped into younger generations. However, las mujeres cubanas
en el exilio, much like their counterparts in Castro’s Cuba, remain bound by
the marianista canon. Marianismo still today dictates that women in both
Cubas take care of all in the home (parents, in-laws, husband, children, dogs,
cats, and plants) and transmit cultural values as well as work in the
productive labor market.268
The need to engage in productive labor has not translated to equal access
in the public sector. Cubanas en el exilio, just as their estado unidense
264. Id. at 85.
265. Id.
266. Id. at 86.
267. Id. at 86. English in quote is author’s translation of: “que discutía en la sala con los
amigos cómo tumbar a Castro.” See id.
268. See id. at 87; ESPÍN, supra note 250, at 5-9; PAZ, supra note 198, at 57.
266
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sisters, are limited by the glass ceiling; few attain high executive posts. Also,
while the cubanas en el exilio do carry out their civic duties by participating
in charitable works, few are represented on the executive boards of these
civic and political organizations, nor are they represented in the circle of
powerful elite exile leaders.269 Thus, here, too, the cultural patterns of
gendered locations of power are reproduced.
Although not much formal information is available, one can find
confirmation of the permanence of cultural dictates in works of fiction.
Carolina García-Aguilera is a Cuban-born author of five Lupe Solano
mysteries.270 Lupe Solano is a Cuban-American private eye who works in
Miami.271 Lupe and her family reveal much about the contemporary exile
community. Her mom passed away. She has two sisters, one divorced with
two children, and the other a very hip nun. The divorced sister lives, with her
children, at her father’s home—a luxurious villa in Coco-plum, with a yacht
moored in the backyard. The sister who is a nun nominally lives in a
convent, but spends most of her time at papi’s where she still has her
childhood bedroom. Lupe herself is a rather thoroughly modern working
woman with her own apartment, but mostly stays at her papi’s home, using
her own place mostly as cover for romantic encounters. The rest of the
household is comprised of an elderly couple who were the parents’ live-in
domestic help in Cuba and who came to el exilio with them.
Notwithstanding their advanced age, the wife cooks and cleans, and the
husband gardens and cares for the cars and the yacht. The daughters take
care of the father, particularly in his unrelenting quest to topple Castro—the
reason for the well-stocked, well-fueled yacht in the backyard—and make
sure to maintain a cohesive familia. Plus ca change. . . .
Similarly, Cristina García, acclaimed Cuban-born contemporary
author,272 weaves the flavor of cubanidad throughout her writings—as do
others. The cultural tropes invoked by writers include the problems women
confront when in non-traditional occupations;273 the importance of family
and the mother figure;274 Cuban men’s machista view of themselves as
269. Aragón, supra note 245, at 88.
270. CAROLINA GARCÍA-AGUILERA, HAVANA HEAT (2000); CAROLINA GARCÍA-AGUILERA, A
MIRACLE IN PARADISE (1999); CAROLINA GARCÍA-AGUILERA, BLOODY SECRETS (1998); CAROLINA
GARCÍA-AGUILERA, BLOODY SHAME (1997); CAROLINA GARCÍA-AGUILERA, BLOODY WATERS
(1996).
271. See generally supra note 270. Interestingly, the author—Lupe’s creator—was a private
investigator before she turned to writing full time.
272. CRISTINA GARCÍA, THE AGÜERO SISTERS (1997) [hereinafter SISTERS]; CRISTINA GARCÍA,
DREAMING IN CUBAN (1992) [hereinafter DREAMING].
273. See, e.g., SISTERS, supra note 272, passim.
274. See, e.g., id. at 15, 27; DREAMING, supra note 272, at 176-77. See also, e.g., Ruth Behar
& Lucía Suárez, Two Conversations with Nancy Morejón, in BRIDGES TO CUBA, supra note 11, at
129, 133-34.
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267
alluring and irresistible to women (no matter how unattractive in reality) and
their infidelity;275 persistent machismo, sex roles, and separate spheres
ideology;276 and the marianista image of the mujer cubana as “passionate,
self-sacrificing, and deserving of every luxury,”277 and at the same time
virginal.278
V. CONCLUSION: EQUALITY AND CULTURE
As the above sections reveal, both Cubas retain and embrace cultural
tropes that render the Cuban world a gendered place. In both instances, the
consequences are double standards and double duties for women. These
results fly in the face of the “rule of law” regardless of where one looks. In
Castro’s Cuba, equality as a constitutional mandate is effectively a doubleedged sword—requiring accommodation for women’s “special needs” and
hence, enabling unequal and inequitable treatment. In the United States, the
equality laws do not yet view sex as an issue to which strict scrutiny applies,
thus allowing gendered views to pass as normative. In the international
realm, protections for sex equality and prohibitions against discrimination
are often tempered by alluding to the protections of culture, which often is
the veil behind which discrimination and inequality lurk.
To be sure, the rule of law ought not be used by a majority culture to
eviscerate minority cultural norms, but neither should culture be used by a
minority culture to eviscerate the rule of law’s application to its vulnerable
members. In this regard, and specifically with respect to women, the two
Cubas are more alike than they are different. Notwithstanding the laws,
women still remain bound by cultural tropes not of their making, but for
which they must take responsibility and even pride. This is not to suggest
that cultural norms should always be eradicated. Rather, it is to note a
location of commonalty between persons in the two Cubas which may allow
for exploration of conversations. Notwithstanding the political and economic
differences, we are still one in our cubanidad.
Cuban women have played key roles in every revolutionary movement
and global initiative on the island—including the struggles to obtain
independence from Spain, fighting Castro’s revolution challenging its
275. See, e.g., SISTERS, supra note 272, at 15; DREAMING, supra note 272, at 26, 113.
276. See, e.g., SISTERS, supra note 272, at 126, 223, 225; DREAMING, supra note 272, at 42,
112, 113, 129-30, 162. See also, e.g., Iraida H. López, “ . . . And There is Only My Imagination
Where Our History Should Be”: An Interview with Cristina García, in BRIDGES TO CUBA, supra
note 11, at 102, 112; Patricia Boero, Cubans Inside and Outside: Dialogue Among the Deaf, in
BRIDGES TO CUBA, supra note 11, at 189, 190; Elena M. Martínez & René Vázquez Díaz,
Contradictions, Pluralism, and Dialogue: An Interview with René Vázquez Díaz, in BRIDGES TO
CUBA, supra note 11, at 232, 235-36.
277. See, e.g., SISTERS, supra note 272, at 131.
278. See, e.g., DREAMING, supra note 272, at 168-69.
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gender-inequalitarian policies, and being economic caretakers en el exilio.
In the historical process, las mujeres Cubanas have been instrumental to
changing the governing laws—ranging from property law, to family law,
including marriage, divorce, maternity, and childcare, as well as from laws
on enfranchisement to labor laws.
Notwithstanding their prominent roles and the legal changes in which
their participation resulted, the social reality for women remains largely
unchanged. Women’s social roles remain defined and circumscribed by the
mandates of marianismo, which insists on women deferring to men and
being primarily mothers and homemakers. This model has traveled the
borders of the island’s myriad governments, including the narrative of
Cubans in exile. Most recently in Cuba, the magineras have repeated the
rich Cuban history by rebelling against the maleness of the public
revolutionary discourse.279 Within the revolution and after the onset of the
special period, women are again taking the lead in the battle for a better
Cuba.
Women, throughout Cuban history, have stepped outside their marianista
designated roles and fought for freedom and equality. At the end of every
revolution, however, they have retreated to their traditional roles. In exile,
these cultural patterns have been replicated. The struggle for real rather than
legal equality is ongoing, difficult, and arduous. We should contemplate
finding locations where we can both protect our precious cubanidad while
recognizing full citizenship and dignity for the cubanas que siguen unidas
por su historia.280
279. Lois M. Smith & Alfredo Padula, The Cuban Family in the 1980s, in TRANSFORMATION
note 109, at 175, 181.
280. Author’s translation: Women united by their history.
AND STRUGGLE, supra
PARADISE LOST, PARADISE FOUND: ORAL HISTORIES AND
THE FORMATION OF CUBAN IDENTITIES
Myra Mendible*
Borderlands are physically present wherever two or more
cultures edge each other . . . . Living on borders and in
margins, keeping intact one’s shifting and multiple identity
and integrity, is like trying to swim in a new element, an
“alien” element . . . [n]ot comfortable but home.
-Gloria Anzaldua1
For those of us accustomed to navigating the fluid borders dividing our
“Cuban” and “American” cultural identities, the condition of being both
and neither at the same time is indeed not comfortable but home. We are,
in Gustavo Perez Firmat’s catchy phrase, “[b]orn in Cuba . . . made in the
U.S.A.”2 We are members of that group referred to as the “one-and-a-half”
generation, a designation that, like “Generation X” or “Baby Boomer,”
reduces complex social phenomena to an accessible and familiar sound
bite. Like all such terms, “one-and-a-half” attempts to classify some aspect
of human experience, to name (and thus tame) its many intricate and
elusive strands. The phrase captures the “in-between” status of cubanos/as
who immigrated to the United States as children or adolescents and have
lived, as Firmat calls it, “on the hyphen.”3
As LatCrit scholars, our analyses proceed from the assumption that
Latinos are multifaceted and multidimensional; that identity is socially
constructed and intertextual; and that all of us are continuously shaped and
reshaped by variable influences, experiences, and mediations. Our position
as bicultural and bilingual individuals only complicates and highlights the
fact that identity is not a snugly tailored, creaseless suit. It is a wardrobe
teeming with creative possibilities—a colorful silk scarf, a couple of hats,
a sequined gown, an austere wool suit—each expressing an aspect but not
the whole of us. We understand that how we see ourselves and how others
classify us fluctuates according to context and perspective. I am an exile,
a refugee, a naturalized citizen, ethnic, an immigrant, and gusana. As
* Associate Professor Contemporary Literature & Cultural Studies, Florida Gulf Coast
University.
1. GLORIA ANZALDUA, PREFACE TO BORDERLANDS/LA FRONTERA: THE NEW MESTIZA
Preface (1987).
2. GUSTAVO PEREZ FIRMAT, NEXT YEAR IN CUBA: A CUBANO’S COMING OF AGE IN
AMERICA 1 (1995).
3. See generally GUSTAVO PEREZ FIRMAT, LIFE ON THE HYPHEN (1994).
269
270
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Alice Abreu’s “Lessons from LatCrit” reminds us, “[t]o full-fledged,
natural born Americans,” we are simply Cubans; to Cubans on the island,
we are Americanized Cubans.4 Most of us have learned to cohabit two or
more identities at once, to recognize, in Abreu’s words, that “[a]spects of
identity don’t just intersect, they co-exist. They affect and inform one
another.”5 We are insiders and outsiders, both and neither simultaneously.6
We swim in waters as turbulent and treacherous as the Caribbean Sea
itself, but they are our waters and our familiar shores bordering the
distance.
It is one thing to acknowledge and accept this indeterminacy, however,
and another to imagine the possibilities suggested by our panel topic,
“Cubans Without Borders.” While the former calls for a celebration of our
multiplicity and differences, the latter challenges us to seek a common
thread across time and place. Given the intensity of debates surrounding
such issues as diálogo (initiating dialogue or negotiation between Cuban
government representatives and U.S. Cubans), Elián, and Los Van Van (a
Cuba-based band invited to perform in Miami, which resulted in
vociferous protests and threats), the challenge to locate and pursue that
elusive thread is no less urgent than it was four decades ago. As U.S.
Cubans, we are often separated from Cubans on the island by a sea of
silence, and from each other by misunderstanding, frustration, hostility, or
indifference. I have heard fellow Cubans in the U.S. dissociate themselves
from the identity essentialized as “Miami Cubans,” and Cubans in Miami
denigrate marielitos.7 Private memories dictate public policy, and as Berta
Hernández-Truyol discovered in her conversations with Cuban-American
law professors after the Elián crisis, “personal experience is outcome
determinative.”8
4. Alice G. Abreu, Inter-Group Solidarity: Mapping the Internal/External Dynamics of
Oppression: Lessons from LatCrit: Insiders and Outsiders, All at the Same Time, 53 U. MIAMI L.
REV. 787, 800 (1999).
5. Id. at 788.
6. Id. at 788-89.
7. “Marielitos” is an often used derogatory reference to Cubans who emigrated from the
Mariel port during the 1980 boatlift. See B.E. Aguirre et al., Marielitos Ten Years Later: The
Scarface Legacy, 78(2) SOC. SCI. Q. 487, 487 (1997). The exodus brought approximately 125,000
Cubans to U.S. shores. Id. at 488. Fidel used the vast migration to release prisoners and asylum
inmates, forcing boat captains to bring them back to Miami along with their families. See id. at 49192. While later analysis found that only about 1% of these Cubans actually had criminal records,
stories circulated locally and recounted in national news reported a Miami overrun by rapists and
murderers as a result of Mariel. See id. at 493-94.
8. See Berta Esperanza Hernández-Truyol, On Becoming the Other: Cubans, Castro, and
Elián, in which the author examines reactions to the Elián situation among fellow Cuban-American
law professors and finds that “the migration experience itself had an indelible impact on the way
respondents perceived, analyzed, and related to the Elián saga.” Berta Esperanza HernándezTruyol, On Becoming the Other: Cubans, Castro, and Elián-LatCrit Analysis, 78 DENV. U. L. REV.
2003]
271
This Essay will attempt to negotiate this relationship between personal
experience and historical perspective, highlighting the importance of
collective memory in articulating and mediating exile politics. It is
founded on the belief that history and memory share much the same
function in shaping community: both employ imagination and experience
to look into the past; both are subject to revision; and both intermix
personal and public consciousness. Most importantly, both are
indispensable for knowing one’s personal and national identity. My
broader aim throughout this discussion is to explore how conflicts between
Cubans on and off the island boil down to this critical intersection where
personal stories assume historical significance. In imagining a future of
Cubans without borders, I locate 1959 as the dividing line, a border where
history and memories collide. I argue the need for Cubans on all sides of
the divide to extend our historical memories beyond the 1959 border and
locate a shared vision that can connect us through time and space. Such a
project of recovery and recuperation calls for a critical re-examination of
Cuba’s history and a remapping of the political terrain bordered by 1959.
LatCrit scholars can guide the way in this collective effort; this Essay is a
preliminary step towards reclaiming the complexity and breadth of Cuban
history, the voices silenced by dominant discourses or forgotten in exile.
Specifically, this Essay aims to erode the simplistic dichotomy of pre- and
post-Castro scenarios that frame discussions about Cuba’s present
predicament, particularly as it defines Cuba’s struggle to achieve social
justice and equality merely in terms of Castro’s so-called “New Society”
or in terms authorized by so-called representatives of the Miami exile
community.
In the Cuban exile community, univocal versions of history often serve
as borders that buttress ideology and divide members of the “one-and-ahalf” generation from each other. I raise this issue in relation to my
opening comments about the “in-between” generation’s ambivalence and
diversity because history, and its offspring—cultural memory, are among
the most powerful forces shaping our perspective and marking our
boundaries. Here let me distinguish between the concept of history as an
authorized, objectified, and fact-based reconstruction of the past, from
history as a body of communal and personal memories, transmitted
through time and subject to reinterpretation and reconstruction. This
secularized conception of history is certainly more fluid and tricky, more
tangential, anarchic, and subjective. Yet it is no less powerful in its
didactic significance or formative function. Maurice Halbwachs argues
that collective memories form the basis of both personal and cultural
687, 715 (2002). In all cases, the individuals’ personal experiences determined how they judged
events.
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identity and help to define our membership in a particular group.9 These
memories are born in the lived experiences of individuals who then bear
witness to events through storytelling.10 Recounted and remembered,
events are “kept alive” and granted authenticity (if not accuracy); the past
is given shape, accorded value, and preserved.11
Given the primacy of oral histories in the formation of national
identity, it is not surprising that competing groups tinker with the past to
fashion a positive, self-serving collective identity based on history but
creatively embellished by memory. During periods of nation building and
transition, empowered groups interpret and ritualize historical events in
ways that build solidarity in the present and an agenda for the future. As
historian Charles Maier points out, memory “mingles private and public
spheres . . . [and] conflates vast historical occurrences with the most
interior consciousness.”12 This fusion of public and private history
articulates aspects of Cuban exile group identity and contains the seeds for
both discord and solidarity. For it is a richly textured and polyvalent voice
that speaks to us through these collective memories, a chorus of conflicting
and incoherent stories that deny us the comfort of tidy, imperious history.
Personal memories, like the shards of a collective history, can reconfigure
and revitalize the past in ways that help a community reclaim the present.
Through this sharing of memories and telling of stories, we redefine our
sense of community and foster our connection through blood and history.
What I am suggesting is not new; postcolonial theory and criticism has
led the way in this approach by recognizing the importance of cultural
memories in national identity and reunification. While “postcolonialism”
marks a contested theoretical terrain, its critics and authors nevertheless
share a preoccupation with history.13 Postcolonial discourses are engaged
in an ongoing dialogue with “official” history; as Helen Tiffin explains,
postcolonialism seeks to dismantle and demystify European cultural
authority with a view to erecting a systematic alternative to define a denied
or outlawed self.14 This decolonizing project consistently involves a
strategy of dismembering the colonizer’s history of self-definition and
self-critique that reclaims, in Simon During’s words, “an identity
uncontaminated by universalist or Eurocentric concepts and images.”15
9. See generally MAURICE HALBWACHS, THE COLLECTIVE MEMORY 50-55 (Francis J. Dilter,
Jr. & Viola Yazdi Dilter, trans., 1980).
10. See generally id. at 50-87.
12. CHARLES S. MAIER, THE UNMASTERABLE PAST: HISTORY, HOLOCAUST, AND GERMAN
NATIONAL IDENTITY149 (1988).
13. See, e.g., Helen Tiffin, Teaching Post-Colonial Literary Theory, in BRIDGING THE GAP:
LITERARY THEORY IN THE CLASSROOM 41-54 (J.M.Q. Davies ed., 1994).
14. Id. at 42-45.
15. Simon During, Postmodern or Post-Colonialism Today, in TEXTUAL PRACTICE 1.1 32-47
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273
Similarly, the condition of exile separates people from their homeland
and their history. Like colonized subjects, Cuban exiles and their bicultural
sons and daughters carry fragments of a shattered history like baggage.
Forty years of migration and separation have eroded and confused our
communal memories and colonized our history. We are left with
conflicting stories, each account filtered through personal experience and
historical perspective. At the same time, we hear dominant voices
proclaiming their authority to dictate our memories, to view the entirety
of a collective past through narrow and myopic lenses focused on the
speaker’s own interests. Often, these interests conflict with our own
experiences or distort images of self and community. We cling to a thread
of connection even as we feel our grasp slipping with each negative
depiction of Cubans or each public incident of intolerance among our own
people. Like many of my generation of Cubans raised in the United States,
I have regarded my ancestry with mixed feelings, torn between a need to
reject the identity conjured by these dominant perspectives and a desire to
connect to my heritage without shame. As Margaret Ferguson has
remarked, exile is “the metaphorical name for the experience of
ambivalence.”16
Vincent Llorens, himself an exile from Spain, once wrote that “a life
of exile assumes an essentially unstable alteration of human existence
which is paradoxically and tenuously balanced between two opposing
points: the present and the future.”17 Critic Michael Ugarte argues that
“this ‘tenuous balance’ disguises the very existence of the present as it
persists in blending with the past and future. Immediate surroundings have
meaning only in terms of a lost geography, a place that is absent.”18 Thus,
exile defines the present only in relation to the past; it perceives “the world
always in terms of relations: nostalgia, the fictional recreation of better
times in relation to a negative reading of the present.”19 This predicament
sheds some light on an older generation of Cuban exiles who confound the
“in-between” generation with their inability to act upon the present. Many
are caught in this labyrinth of history where all paths lead to the past and
there is no exit to the present. Any vote cast, any position taken, any
alliance formed in the United States seems bound to this obsession with
the past.
Such a preoccupation with the past makes exiled and displaced peoples
(1987).
16. Margaret Ferguson, The Exile’s Defense: Dubellay’s La Deffence et Illustration de la
langue francoyse, PMLA 93, 277 (1978).
17. Vincent Llorens, Literatura, Historia, Politica, in MADRID: REVISTA DE OCCIDENTE 9
(1967).
18. Michael Ugarte, Luis Cernuda and the Politics of Exile, 101 MLN 325, 327 (Mar. 1986).
19. Id.
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particularly keen on storytelling. They seem to sense its profound
influence, its formative and instructive role in shaping identity and
recording cultural memory. Perhaps, as Ugarte remarks, “to be displaced
is to be obsessed with memory.”20 Communal stories of exile are often
preserved and disseminated through autobiographies, testimonials, or
historical fictions. They produce a body of literary texts that expresses its
own poetic, its own language, conceits, and motivations.21 Ugarte’s
analysis suggests that regardless of the specific context, an exile’s voice
records the experiences of loss, absence, separation, and fragmentation that
seem to characterize the migratory experience.22 Most significantly, exile
gives rise to a polemic that “brings into play a series of ideological and
historical disputes whose battle ground includes the new home as well as
the old.”23
In the context of Cuban politics and discourse, Cuba’s history is often
reduced to a dichotomy of simplistic pre- and post-Castro scenarios. On
this side of the border, a dominant version of Cuba’s past sounds like an
echo of Milton’s “Paradise Lost.”24 On the other side, present day Cuba
emerges as “Paradise Found” when compared to selective memories of
Batista, neocolonialism, widespread poverty, and racism. Cuban exiles that
cling to this singular vision, memorialize the past as the moment of
solidarity, and communality; only insiders to this vision may share its
glory. Similarly, dominant voices on the island extol the progress
represented by Castro’s “New Society,” and proclaim themselves the
enlightened ones, the founders of a discourse of equality in Cuba.25 This
polemic, which Frank Valdes aptly locates in elitist Miami and elitist Cuba
factions, is founded on contrasting versions of the past.26 It rejects the
complexity of Cuba’s history in favor of a singular and myopic vision.27
Each side insists on the authenticity of “their” story, refusing the
possibility that the story of Cuba’s struggle for social justice and equality
extends beyond these narrow boundaries. Each constructs a notion of
cubanidad founded on imagined past and present communities. In Alan
Singer’s words, “[d]esire dreams the identity of the one with the many, the
plenitude of truth, the absence of difference.”28 But as Fredric Jameson
20. Id.
21. Id. at 326.
22. See id.
23. Id.
24. JOHN MILTON, PARADISE LOST (1820).
25. See generally Francisco Valdes, Diaspora and Deadlock, Miami and Havana: Coming
to Terms with Dreams and Dogmas, 55 FLA. L. REV. 283 (2003).
28. Alan Singer, Desire’s Desire: Toward an Historical Formalism, 7 ENCLITIC 57 (1984).
2003]
275
reminds us, “[h]istory is what hurts, it is what refuses desire.”29
An exile community’s historical consciousness is deepened by two
kinds of experience: direct participation in the events, or emotional
engagement through oral testimonies, memoirs, autobiographies, familial
lore, and imagination. Since I left Cuba at the age of five, I possessed few
memories borne of my own reality. Instead, I relied on the many stories I
remembered and the diverse people I met who shared their private
memories of Cuba’s past. These shared memories fostered in me the sense
that I belonged to a colorful, sometimes dysfunctional, sometimes
extraordinary extended family. As a carryover of our Cuban heritage,
cultural memories are fundamental to the ideological formation of CubanAmerican identity. Kept alive in exile through stories, myths, hearsay, and
gossip, these memories shape and sustain our collective values, forge a
communal and individual sense of self, and transmit a vision of the past
that can guide us toward the future. Perhaps my position as the only
literature professor among the conference’s many legal scholars leads to
this emphasis on the role of storytelling in my identity formation,
believing as I do that history is simply another twice-told tale. Yet during
LatCrit VI, I was also surprised and delighted by the number of
discussants who used personal anecdotes and family history as the
springboard for analysis during sessions, and by the ways that all of us on
the “Cubans Without Borders” panel crossed borders the day that we
exchanged personal narratives and thus claimed our own bit of history.
Terry Dehay characterizes this collective remembering as “reclaiming and
protecting a past often suppressed by the dominant culture, and in this
sense, as re-envisioning, it is essential in the process of gaining control
over one’s life.”30 During these intimate exchanges, I felt the extent to
which our interpretation and understanding of Cuba’s past—our
experience of cubanidad—grew out of the story of exile, its justificatory
narratives, accusations, and loss.31
Like others of the “in-between” generation, my knowledge of Cuban
history stemmed from secondary, often contradictory sources. It was
29. FREDRIC JAMESON, THE POLITICAL UNCONSCIOUS 102 (1981).
30. Terry Dehay, Narrating Memory, in MEMORY, NARRATIVE, AND IDENTITY 405 (Amriitjit
Singh et al. eds. 1994).
31. I am indebted to Jesus Jambrina, the only discussant in the group who had recently
migrated to the United States, for expressing his perspective as someone born and raised in Cuba.
All of us on the “Cubans Without Borders” panel benefited from Jesus’ reminder that he did not
share our sense of divided identity. As he remarked to us in an earlier email, “les confieso incluso
que, a veces, me siento saturado de cubania y quisiera, cosa imposible claro esta, liberarme un poco
de ella.” [I confess that, at times, I feel saturated by my cubanness and desire, something clearly
impossible, to liberate myself from it.] While my emphasis here is on the development of a
historical consciousness in exile, I in no way mean to exclude Jesus’ contribution. His insights
enriched all of us.
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mediated by my parents and later filtered through an educational system
that measured Cuban history only in relation to its own cultural myths and
perspectives. On those rare occasions when Cuba was mentioned during
my formal schooling, it was as representative of the “Communist Other”
to democratic America—as an island nation defined by loss and lack.
Cuba’s complex history, filtered through this narrow lens, served to affirm
the virtues of capitalism or to admonish young Americans who may be
lured by pop culture images of el Che or Fidel. I was keenly reminded of
this colonized history by Adrian Wing’s cautionary remark during the
LatCrit VI Conference that the U.S. often holds itself up as an example of
democracy and justice against its “Other”: Latin America. Understandably,
my view of Cuba from that perspective was that it had always been a
“banana republic,” its history simply a string of strongmen dictators,
racists, and regressive initiatives. In this version, Cuba’s long war for
independence from Spain is named the “Spanish-American War,”
obscuring the fact that a generation of Cubans, led by a military leadership
comprised of forty percent Afro-Cubans, paid for that victory with their
own blood.32 This script calls for the United States to play the enlightened
democracy to Cuba’s “third world” role. It ignores the U.S. Government’s
role in imposing their own segregationist policies on Cuba’s military
during its occupation, and neglects to mention the fact that, unlike the
United States’ war for independence, Cuba’s war for independence
articulated a vision of racial equality and harmony.33
Yet for years I felt destined to carry these remnants of a tattered and
dishonored heritage like an albatross around my neck.34 Stuart Hall’s
remark that identity is never simple or stable but happens over time and is
“subject to the play of history and the play of difference” suggests that
identity is an ongoing process of identification and association. In this
sense, my cubanidad became as much a political choice as a question of
birthplace or native language. But it was a choice implicated by the stories
I internalized as my own—personal and cultural narratives founded on
family lore, personal experience, and hearsay that complicated my
perspective. As is often the case with children of immigrants, these stories
usurped the role of recorded history. Because I grew up in Miami, the
32. See BETWEEN RACE AND EMPIRE: AFRICAN-AMERICANS AND CUBANS BEFORE THE
CUBAN REVOLUTION 13 (Lisa Brock & Digna Casteñeda Fuertes eds., 1998)
33. See generally Cathy Duke, The Idea of Race: The Cultural Impact of American
Intervention in Cuba, 1898-1912, in POLITICS, SOCIETY AND CULTURE IN THE CARIBBEAN:
SELECTED P APERS OF THE XIV CONFERENCE OF CARIBBEAN HISTORIANS 87-108 (Blanca G.
Silvestrini ed., 1983).
34. In Samuel T. Coleridge’s, Rime of the Ancient Mariner, a sailor is bound to wear a dead
albatross around his neck in penitence for sinning against nature. Samuel T. Coleridge, The Rime
of the Ancient Mariner, in LYRICAL BALLADS (1978). The sailor, doomed to wander endlessly,
repeats his shameful tale to all who will listen. Id. at 38-40.
2003]
277
Mecca of many Cuban exiles, my birthplace remained a living memory.
It was alive on the streets of calle ocho in Little Havana, in the language
we spoke at home, and in the stories that nurtured my childhood. To me,
those tales of home were like a lifeline to my Cuban identity. They
provided a personalized history that helped to counter the less forgiving,
sometimes hostile images reflected by my public world. To my parents,
those stories were the only way they knew to cross the boundaries of time
and place, to unite me—their Americanized cubanita—with her heritage
and her birthplace.
I realize now that my parents’ many stories were meant to safeguard
not only our family’s history, but also the history of an entire culture in
exile. That storytelling was more than an entertaining pastime—that it was
part of an oral tradition linking generations of displaced and fractured
communities across time—was a history lesson that I would learn later.
My parents fled Cuba in 1959, just two months after Fidel Castro and his
Revolutionary Army occupied Havana. Yet year after year of exile had not
faded my father’s memory of his homeland, and his stories were rich in
detail. Although my father’s gratitude to his adopted land was
unquestionable, he never forgot his first love. He yearned for her, idealized
and idolized her; she was his Havana. Eyes full of emotion, he referred to
her as “the Paris of the Caribbean,” a graceful, exuberant city that never
slept. He knew every nook and cranny of her, and she clung to his
senses—her vibrant rhythms, pleasant and familiar smells, sultry breezes,
and gentle sun.
At home and on the street, I heard other stories too—stories fueled by
rage and disappointment. In those stories, Havana was “Paradise Lost,”
and Cuba a nation violated—her people scattered, oppressed, imprisoned,
executed, or lost at sea. She was the Republic whose possibilities had been
cut short by comunistas, by traitors, and despots. Later, my university
studies offered other versions as well. If conditions in Cuba were so ripe
with potential; if the island had sustained a healthy, vibrant economy; if
there was little evidence of discontent—then why did the Revolution
happen? To my adult mind, my father’s stories seemed unreliable, like
memories filtered through the eyes of a lover. I began to question
contradictions, inconsistencies, and partial truths.
In the summer of 1996, I traveled to Cuba as part of a Delegation of
North American Philosophers and Social Scientists. During my seven-day
visit, I exchanged ideas with Cuban professors, met my 83-year-old
godfather, and sought some answers. I wanted to know if the Havana of
my father’s stories still existed. I wondered if it ever had. I hoped that with
this visit, I would finally get “the real story.”
The Conference was held at the University of Havana, a prestigious
university with a long history of revolution. It had been the setting of
student protests against the Spanish colonizers at the turn of the century,
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and where Fidel and his followers rallied fellow students to oppose
Batista’s government. My days were spent at the University, where
students and professors offered stories that differed radically from those
I knew. In their version, the Revolution has made remarkable progress in
health care and education, and its ideals endure despite constant and
powerful opposition from exiled Cubans and the U.S. government.
Through their eyes, I envisioned other, less forgiving images of Cuba’s
past. Their answers to my questions transformed my father’s Havana into
a decadent, impoverished city rife with corruption. Meanwhile, my U.S.
colleagues toured Cuba with University guides who escorted them during
scheduled visits to “collective farms” and health facilities. Sympathetic to
these selected examples of egalitarian incentives, most seemed to accept
uncritically the accompanying grand narrative: according to this version
of history, the 1959 Revolution marks the onset of a vision towards social
justice in Cuba and its discourse holds title to a critique of racism, social
inequality, imperialism and patriarchy. Only the memory of Batista
seemed to speak to Cuba’s history before 1959. During one of my
discussions with a U.S. economics professor, theory and social realities
collided when I persisted in my efforts to understand why these gains
could not have been achieved without sacrificing human rights. Frustrated
by my unwillingness to accept the embargo, U.S. policy, and “Miami
Cubans” as definitive justification, he finally responded that Latin
American history shows that “we” seem to need a “more heavy-handed”
type of leader to achieve our national goals. This remark, coming from
someone with whose progressive politics I identified, disappointed and
saddened me. On what political framework would I rely to understand
Cuba’s history, and in the process, my own? Whose stories would I choose
to remember, whose would I reject?
In the afternoons and evenings, I encountered other, less official
versions of Cuba’s present. I met people who expressed anger and
frustration in whispers. I spoke to many Cubans who had lost their jobs
and been harassed or imprisoned for their discontent. I heard different
answers to my questions. Is it true that the U.S. embargo is to blame for
the people’s hardship? That all decisions affecting labor are made only
after affected workers approve them? That no other developing nation can
boast a higher literacy rate? That Afro-Cubans have achieved social
equality and justice? One woman quipped that the only thing keeping
Cubans on the island alive is the flow of money and goods from Miami.
My cousin, a university-educated “son of the Revolution,” laughed at the
notion that workers in Cuba would dare to oppose any policy or objective
endorsed by Fidel. So much for consensus. And as for literacy, my learned
godfather’s comment tells it own tale: “En Cuba hay mucha
instrucción—pero no hay educación.” [“In Cuba, there is much
instruction—but no education.”]
2003]
279
I did not find the answers I sought, and in fact, found more questions.
But I did see traces of my father’s beloved city. The once majestic colonial
buildings still line the city’s streets, but their walls are crumbling, literally
collapsing into piles of rubble. With those crumbling old buildings, a city’s
rich history is fading. I saw two-by-four wood planks holding up
balconies, layers of peeling paint on walls that revealed years of neglect.
The sea was still deep blue, and the night breeze still cooled the city even
in the dead of summer. Young couples still strolled through shady plazas,
people still gathered at el malecón (the seawall that stretches along central
Havana), and the Tropicana nightclub still entertained tourists. But the city
had lost its luster, and its nightlife catered to tourists paying in dollars.
There were few cars on the road, and weary faces waited in line for a
dilapidated, overcrowded bus that may never arrive.
After my return, I tried to further complicate my notions of Cuba’s
history. I learned that Cuba’s struggle to define both cubanidad and
ciudadanía stretches back generations, and the ideals and discourse of the
1959 Revolution were employed throughout the Island’s history (yes, even
by Batista and others). I recognized the extent to which Cuba’s complex
past had been reduced in my own mind to a clear-cut polarity, its present
evaluated and understood only in relation to 1959 as sole historical marker
and determinant. I discovered new stories that overturned the notion that
Latinos are innately incapable of enlightened self-rule, that the struggle to
build a just nation translates into the “American way of life.” Over the
years, I had engaged in endless debates with Cuban scholars, friends,
family, and colleagues about Cuba in an effort to hear their stories.
Invariably, among Cubans on and off the Island, discussions had led back
to 1959 as the litmus test for Cuba’s alleged progress or deterioration. It
was as if the year of Fidel’s triumph stood as a great wall blocking our
view of Cuba’s past and our vision for its future.
Following the Elián debacle, I read the stories the national newspapers
and television news shows disseminated about Cubans in Miami, where all
of us were neatly lumped into one mass of loud-mouthed, narrow-minded
fanatics. I heard many of my own closest friends disparage and ridicule
“Miami Cubans.” Some participated in the “banana republic” parade held
in Coconut Grove by a predominantly “Anglo” population—a parade in
which a few Confederate Flags waved proudly beside the U.S. flag. One
morning during the Elián protests, I witnessed police officers antagonizing
protestors then pushing a male protestor to the ground and handcuffing
him. I later saw front-page photos featured across the nation that
decontextualized and exaggerated events to such an extent that my best
friend’s parents in Kansas City were under the impression that Miami had
been overrun by a riotous, violent herd of Cubans. Another friend blandly
defended Elián’s armed seizure with the remark, “Well, you know that
most Cubans in Miami carry guns.” As anecdotal and media “evidence”
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continued to characterize the Miami Cuban community as heartless zealots
intent on destroying their compatriots on the Island, I struggled to
reconcile those depictions with my own experiences or with the knowledge
that “reliable estimates put Cuban-American remittances [to Cuba] at close
to $1 billion per year, far exceeding the sum total of private contributions
by charitable organizations to Cuba worldwide.”35
Attending the LatCrit VI Conference marked an important point in my
search for perspective. I had never met any of the panel participants until
I arrived in Gainesville, though we had exchanged warm and lively emails.
Seated among the fellow Cubans who would comprise the “Cubans
Without Borders” panel, I discovered the extent to which all my stories
converged and formed my self-image. As I sat among the wonderful
people who would share their little bit of history and self and thus venture
across borders, I felt like both an insider and an outsider to this group. It
was not a distance created by discipline (I was a literature professor among
a majority of law scholars). The distance I felt stemmed simply from the
fact that I was a “Miami Cuban,” a cubanita who had not moved away or
dissociated herself from the Miami exile community. It seemed that years
of graduate study or personal successes had not erased the negative selfimage projected upon me by that association. I longed to cross the border
imposed upon us by those who would control our history, who insist on
“representing” our views. I wanted to vindicate my community, to
humanize the demonized, to share stories that spoke of individual acts of
generosity, courage, or forgiveness. And most of all, I felt an absurd desire
to redeem our history, to recall a dream of economic, social, and racial
equality that links us across generations.
I expressed my discomfort to the group, and we exchanged personal
memories, reaching across differences and finding that we shared
intellectual, political, and emotional bonds. On that day, we aired our dirty
laundry; we looked critically at notions of cubanidad that disappointed,
divided, or alienated us. We expressed our rage and our hopes. Our
exchange did not produce a coherent narrative of Cuban identity. Nor did
it seek to deny the ugly aspects of our collective history or to supplant
them with idealized and nostalgic personal musings. I do believe that our
familial dialogue served to remind us, again, of the truism, “there are more
than two sides to every story.” It may also have achieved some “historical
consciousness raising.” Most importantly, it allowed us to see, reflected in
our differences, traces of familiarity; it reaffirmed the need to engage
relentlessly in a process of self-critique and self-reconstruction, of
historical deconstruction and recovery. Such a process will doubtless
35. Alejandro Portés, Morning in Miami: A New Era for Cuban Americans, 9 AM. PROSPECT
28 (1998).
2003]
281
produce more ambivalence, a more tentative and open-ended view of our
own Cuban “Others.” But as Cubans struggling to come to terms with our
differences and yet longing for connection, we can live with ambiguity. In
fact, we can make it home.
DIASPORA AND DEADLOCK, MIAMI AND HAVANA: COMING
TO TERMS WITH DREAMS AND DOGMAS
Francisco Valdes*
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
A. Division and Corruption: Dueling Elites, the Battle
of the Straits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 287
B. Arrogation and Class Distinctions: The Politics of
Tyranny and Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 297
C. Global Circus, Domestic Division: Cubans as Sport
and Spectacle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
D. Time and Imagination: Toward the Denied . . . . . . . . . . . . . . 305
E. Broken Promises and Bottom Lines: Human Rights,
Cuban Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
F. Reconciliation and Reconstruction: Five LatCrit
Exhortations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 313
II. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
I. INTRODUCTION
The low-key arrival of Elian Gonzalez in Miami on Thanksgiving Day
1999,1 and the custody-immigration controversy that then ensued shortly
afterward,2 transfixed not only Miami and Havana but also the entire
* Professor of Law and Co-Director, Center for Hispanic & Caribbean Legal Studies,
University of Miami. I thank the participants in the Faculty Seminar at Quinnipiac School of Law
and in the Colloquium at Harvard Law School, where drafts of this Essay were presented. I thank
also Carmen Gonzalez, Evelio Rodriguez, Ricardo Camara, Robert Westley, and Lisa Iglesias for
feedback that helped to develop the thoughts presented here. Finally, I thank the organizers,
participants and attendees of the Sixth Annual LatCrit Conference, and the editors and contributors
of this symposium, for providing a fitting venue and community for this rather personal Essay. All
errors are mine.
1. The arrival was reported in the local paper as yet another dramatic example of escape
from the island, with no inkling of the greater drama to follow. See Lisa Arthur et al., 5-Year-Old
Survivor Clung to Inner Tube, Two More Rafters Rescued, But 11 Other Cubans May Have Died
at Sea, MIAMI HERALD, Nov. 26, 1999, at 1A; see also Melissa Leavister, Ambiguity Equals
Authority: The Immigration and Naturalization Service’s Response in the Elian Gonzalez Case, 31
GOLDEN GATE U.L. REV. 219 (2001). Elian’s case is not an isolated occurrence, although it has
been the most chronicled. See, e.g., Marika Lynch & Alfonso Chardy, Mother Indicted for Taking
Son to Cuba, MIAMI HERALD, Feb. 24, 2001, at 1B. Elian’s notoriety apparently continues in Cuba,
despite Cuba’s criticism of the U.S. media circus surrounding Elian’s story. Elian Featured in
Museum of Castro Doctrine, MIAMI HERALD, July 15, 2001, at 5A.
2. This drama concluded with the Supreme Court’s anticlimactic pronouncement, which
simply ratified the outcome already determined through public relations campaigns and federal
283
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world,3 thereby bringing into sharp relief the condition of the Cuban
nation. As his case mushroomed, that photogenic boy came to personify,
and to embody for the entire world, the image of a nation and
people—indeed, a family—divided by decades of passionate polarities.
That tragic image, unfortunately, does capture a significant portion of
Cuban realities, both on the island and throughout the diaspora. Elian’s
fate exemplifies one human tragedy of the Twentieth Century on both
micro- and macro-levels of human experience and existence. But that
image also reifies a grossly simplistic, and increasingly inapt,
understanding of Cuba and Cubans—again, both on the island and
throughout the diaspora.
It is a reification with which I have struggled my entire life—and which
Elian’s protracted predicament put squarely in front of me like no other
event had ever before. Born in Cuba to middle-class working parents a few
years before Fidel and his comrades wrested control of the government
from their predecessors, I recall that particular transition of power from the
perspective of a child the age of Elian. What I recall most, however, is
how my father and mother argued about it: he in support of the Revolution
as a means of social justice and she warning against an elegant but
deceptive appeal to his and others’ utopian longings. After some scary
brushes with the forces of revolution, I found myself on a plane at the age
of five with my cousin (aged six), headed first to Miami and eventually to
an orphanage in Pueblo, Colorado. I recall still the curiosity and anxiety
I felt then about going to a place where, I inferred, everything—people,
trees, cars, houses—would be in red. “Pueblo colorado” means, in
Spanish, literally, red town.
After nearly two years of greenery and snow—only the bricks and the
Garden of the Gods were red—my mother, aunt and sister arrived from
Cuba. My cousin and I were dispatched to them, in Miami, and then we all
lived on a daily basis around the expectation of eventual family reunions
and on the clock of erratically periodic telephonic contacts. Over the next
several years my uncle and my father arrived, creating a gradual sense of
familial reunion and restoration. During all of that time, my mother
showered my sister and me with many expressions of maternal care,
executive decisions. See generally Gonzalez v. Reno, 530 U.S. 1270 (2000); Manny Garcia, Seized
Raid Returns Elian to Father as Angry Protests Dwindle, Strike Called for Tuesday, MIAMI
HERALD, Apr. 23, 2000, at 1A.
3. See, e.g., What Next?, ECONOMIST, Apr. 29, 2000, at 27. See also Joe Carroll, Cuban Boy
Returns Home as Miami Saga Ends, IRISH TIMES, June 29, 2000; Cuba to Honor Migratory Accords
with U.S., XINHUA GEN. NEWS SERVICE, June 29, 2000, available at LEXIS, News Library, AFP
file; Brian Knowlton, Reno Rejects Florida Ruling on Cuban, INT’L HERALD TRIB., Jan. 13, 2000;
Elian ready to head home Wednesday: supporter, AGENCE FR. PRESSE, June 28, 2000, available
at LEXIS, News Library, Xinuah file.
2003]
285
including lectures about the beauty of Cuba and the evil of Fidelismo. As
I grew into adolescence, perhaps in knee-jerk fashion, I rebelled at the
continuing anti-Fidel tirades and critiqued her sentimentalism for preFidelista Cuba as self-serving defensiveness.
Those were heated times for us. But, even as I countered my mom’s
lectures, it seemed plain enough that oppressive regimes are contemptible
and, in the long run, untenable enterprises—I could sense this basic point
personally in the unjust realities of everyday life in Miami (and
elsewhere). I sensed, also clearly, that Fidel’s regime was among these
forms of enterprise (and, not because of my mother’s rants).
Because Fidel, and his allies and acolytes, have not ever been willing
to risk a loss or diminution of their power and status, no matter what,4 I
never have found myself able to accept their extended, indefinite and
totalitarian monopoly on all power, information, and wealth in Cuba. At
the same time, I have been repeatedly disappointed and repelled by the
rigid and unrelenting authoritarianism of Miami’s exile politics—an
Orwellian authoritarianism that is perpetrated in the name of political
pluralism and freedom of expression.5 Having been raised amidst the
ugliness created between these two poles—my two hometowns—I have
been unable to come to terms with either.
In many ways, therefore, this Essay is about the difficulty of
establishing a grounded identity and social space for children who have
come from Cuba to the United States—like Elian—at a very early age and
in the context of stalemated polarization. These children have been forced
to develop a personal and national identity not only in the midst of a
skeptical and alien culture but also in the face of high-pitched ideological
conflict between the bipolarized world views of Havana’s and Miami’s
elites, the dueling camps that have instigated and fueled so much hostility
among and between Cubans for so many years. Perhaps not surprisingly,
Elian’s case brought this all to the fore for me.6
One day, a guest arriving at my home picked up the dozen or so
newspapers that had piled up by the front door and handed them to me
when I opened the door for him. “Do you want to throw these away?” he
4. See generally THEODORE DRAPER, CASTRO’S REVOLUTION: MYTHS AND REALITIES
(1962) (discussing the tight hold Fidel Castro and his allies have on Cuba).
5. See generally MARIA DE LOS ANGELOS TORRES, IN THE LAND OF MIRRORS: CUBAN EXILE
POLITICS IN THE UNITED STATES 140-48 (2002).
6. The flight of children has been a continuing story, including the now-fabled “Operation
Pedro Pan” that facilitated the travel of thousands of children from Cuba to Miami. This operation
is the only time in United States history that the federal government has delegated its “plenary
power” over immigration to the sole discretion of private individuals, who were empowered to
grant visas in the name of the United States government. This operation accounts for my travel and
entry to this country. See generally YVONNE M. CONDE, OPERATION P EDRO PAN: THE UNTOLD
EXODUS OF 14,048 CUBAN CHILDREN (1999).
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queried. I took them and set them down in a corner, but I soon afterward
started to concentrate on why I recently, and suddenly, had begun to avoid
reading the newspaper. After a while, I realized that I simply could not
deal with my reactions to Elian’s story, as it was in some ways reminiscent
of my own trajectory through life. After some time, as Elian’s case
dragged on, I decided that I had to read the stacked-up newspapers, even
if only to be minimally prepared for the daily conversations from which
references to Elian’s situation regularly erupt(ed). One day, alone, I went
through them one by one, and then threw them all away. Since then, I have
focused myself more than previously on transcending the inflammatory
rhetoric of “both” sides, as well as the limitations of my intellectual and
personal knowledge, to find ways of identifying as Cuban. Since then, I
have intensified an ongoing, life-long struggle with the facts and forces
that have recreated the leading city of the state in which we meet this
year—as well as the land and people who, in great measure, have
catalyzed that recreation: Cuba and Cubans.7
During the past two years, this effort has taken the form mainly of a
research project in which I have sought to understand, in comparative and
critical terms the worlds offered to us—to me—by the versions of Cuba
and Cubans emanating without relent from Havana and Miami. This
research project, along with my origins and experience, provide the
backdrop for my opinions both of Elian’s story and the larger national
tragedy that it represents. This venture is, for me, a personal, political, and
jurisprudential project: as a Queer, Latino law professor in Miami
committed to social justice, I seek to cohere myself in part by composing
a LatCrit and QueerCrit position toward the reconciliation of Cubans and
the reconstruction of Cuba as a postsubordination society. I therefore
approach this Essay, as well as my larger study of Cuba and Cubans, from
a “LatCrit” and a “QueerCrit” perspective.8 It is from this perspective and
with this motivation that I invite you to join me, and Cubans on both sides
7. See, e.g., SHEILA L. CROUCHER, IMAGINING MIAMI: ETHNIC POLITICS IN A POSTMODERN
WORLD (1997); ALEJANDRO PORTES & ALEX STEPICK, CITY ON THE EDGE: THE TRANSFORMATION
OF MIAMI (1993). The Cuban influx and its ramifications have attracted more Latinas/os to Miami
in recent years. See, e.g., Amy Driscoll & Tim Henderson, Many Lands Give Florida Its Latin
Flavor, MIAMI HERALD, July 25, 2001, at 17A; Andres Viglucci, Census Shows Increase in
Hispanics’ Diversity, MIAMI HERALD, May 10, 2001, at 1A.
8. Both LatCrit Theory and Queer Legal Theory are evolving discourses and subject
positions that emerged within the legal academy of the United States in the mid-1990s to study the
place and prospects of multiple diverse Latinas/os and sexual minorities, respectively, in
inter/national law and society. Like other strands of outsider jurisprudence, LatCrit Theory and
Queer Legal Theory bring an antisubordinationist stance to the study of legal and social issues. See
generally Francisco Valdes, Theorizing “OutCrit” Theories: Coalitional Method and Comparative
Jurisprudential Experience—RaceCrits, QueerCrits and LatCrits, 53 U. MIAMI L. REV. 1265
(1999).
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287
of the Florida Straits, in an effort to transcend the invidious bifurcation
that Havana’s and Miami’s elites have co-constructed and co-directed
since 1959.
A. Division and Corruption: Dueling Elites,
the Battle of the Straits
Since 1959, with the ascension of Fidelismo and the subsequent outflux
of refugees, Cuba and Cubans have been understood mostly through the
unidimensional lens of political ideology in the context of the Cold War.9
But, at the time of their ascension, Fidel and his comrades most likely
possessed, and certainly professed, a vision with integrity of social
transformation.10 Looking to the bottom of Cuban society, they rightly saw
the condition of Cuba and Cubans as Twentieth Century subalterns, a
people and nation held down by the weight of colonial histories and their
enduring capitalist legacies—the joint bequest of Spanish and North
American imperialism.11 While their immediate predecessors in Havana’s
corridors of power had cared mostly about simple wealth and might,12
Fidel and his cohorts focused, at the beginning, on the centrality of
national sovereignty, and on social-economic rights, in the design and
achievement of a post-subordination Cuban society.13 Though a difference
of opinions continues to prevail on this subject,14 it probably is a crude
essentialization of Fidel and his original comrades to insist that they were
merely power-hungry and ethically corrupt from the beginning.
At the same time, the early exiles and their families—those who
comprised the “first” wave of post-Fidel Cuban exodus—also were most
likely motivated by a vision—and by fears—that they possessed and
professed with integrity.15 The early (as well as later) exiles were, from all
appearances, motivated by a genuine belief in political as well as economic
9. For a recent and incisive critical account, see MARIFELI PEREZ-STABLE, THE CUBAN
REVOLUTION: ORIGINS, COURSE, AND LEGACY (2d ed. 1999).
10. See GEOFF SIMONS, CUBA: FROM CONQUISTADOR TO CASTRO 65-164 (1996).
11. Id.
12. Id. at 303-10.
13. For a selection of Fidel’s writings, see FIDEL CASTRO, REVOLUTIONARY STRUGGLE 19471965, at 2-25 (Rolando E. Bonachee & Nelson P. Valdés eds. 1972).
14. In particular, anti-communist Cuban activists insist that Fidel was corrupt and
hypocritical from the beginning of his professedly egalitarian movement. See generally DRAPER,
supra note 4, at 115-72. For various news accounts, see Leslie H. Gelb, The Boiling Point, N.Y.
TIMES, July 24, 1983, § 4, at 1; Rick Kogan, Sorry story: ‘Last Communist’ a solid portrait of Fidel
Castro, CHI. TRIB., Feb. 11, 1992, at 7C; Charles Krauthammer, The Great Dictator, WASH. POST,
Dec. 14, 1986, at H7; John T. Skelly, The Men Who Left the 26th of July Movement, MIAMI
HERALD, July 26, 2001, at 9B.
15. See RICHARD R. FAGEN ET AL., CUBANS IN EXILE: DISAFFECTION AND THE REVOLUTION
75-98 (1968).
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agency; they foresaw and feared not only economic centralization but also
political dictatorship.16 They feared the loss of not only property, but also
liberty—and they were right, for the dictates of political and economic
centralization have meant that everyday people in Fidel’s Cuba cannot
aspire to customize and self-direct their individual lives, either in political
or in economic venues.17 Thus, it probably is an equally crude
essentialization of Cuba’s exiles to insist that they were merely a petty and
trenchant bourgeoisie from the beginning. Instead, from the beginning,
Cuba and Cubans on both sides of the Florida Straits have been caught
amidst a complex tangle of noble aspirations and well-founded reactions
that nevertheless have devolved since then—both in Havana and in
Miami—into arrogant systems of social control while giving rise to selfrighteous, materially comfortable and mean-spirited elites.
The “Havana elites” encompass primarily the circles of power that
control the two overlapping institutions that authoritatively and forcefully
supervise all life within Cuba: the government and the party, including
perhaps most notably those officials with the power to conduct economic
and political relations with the world external to the island.18 The “Miami
elites” encompass a loose assemblage of businesspersons—mostly but not
exclusively men—and politicos and politicas (again, mostly men) who
have amassed money or position in this country, and who use their
socioeconomic influence strategically and methodically to promote their
political struggle against the social, economic, and political monopoly of
16. See id. See generally CROUCHER, supra note 7, at 121. Interestingly, in this particular
respect, these exiles mirrored the concerns of this country’s “founders” in the 1770s and 1780s. See,
e.g., THE FEDERALIST No. 10, at 18 (James Madison) (Roy P. Fairfield ed. 2d ed., 1966) (discussing
property and democracy in the construction of the federal constitution and government). In both
instances, then, these groups were concerned both about personal property and political power. This
ideological similarity perhaps accounts at least in part for the powerful connections forged between
Miami’s elites and Washington’s elites during these years of diaspora and deadlock.
17. See DRAPER, supra note 4, at 128-33; see also THOMAS M. LEONARD, CASTRO AND THE
CUBAN REVOLUTION 1-18, 33-66 (1999); U.S. DEPARTMENT OF STATE (CUBA: Country Reports
and Human Rights Practices 2000) (Feb. 2001), available at
http://www.state.gov/g/drl/rls/hrrpt/2000/wha/751.htm (last visited Oct. 17, 2002). See generally
CUBA’S REPRESSIVE MACHINERY: HUMAN RIGHTS FORTY YEARS AFTER THE REVOLUTION (June
1999), available at http://www.hrw.org/reports/1999/cuba (last visited Oct. 17, 2002).
18. See PEREZ-STABLE, supra note 9, at 180-83; GOVERNMENT AND POLITICS OF CUBA: A
COMPREHENSIVE RESOURCE OF CUBA’S GOVERNMENT STRUCTURE, POLITICS, AND ACTORS (July
2001), available at http://www.cubapolidata.com/gpc/gpc_institutional_order.html; LEONARD,
supra note 17, at 3-50. See generally Papers and Proceedings of the Ninth Annual Meeting of the
Association for Study of the Cuban Economy, 9 CUBA IN TRANSITION 1 (1999), available at
http://lanic.utexas.edu/la/cb/cuba/asce/cuba9. See also Domingo Amuchastegui, Cuba’s Armed
Forces: Power and Reforms, 9 CUBA IN TRANSITION 109 (1999), available at
http://lanic.utexas.edu/la/cb/cuba/asce/cuba9; Armando F. Mastrapa, III, Evolution, Transition and
the Cuban Revolutionary Armed Forces, 9 CUBA IN TRANSITION 115 (1999), available at
http://lanic.utexas.edu/la/cb/cuba/asce/cuba9 (1999).
2003]
289
Havana’s elites.19 Both elites cloak themselves in nationalistic fervor, and
invoke it to mobilize their foot soldiers. But, while both elites speak of
“the people of Cuba,” neither is willing to bear the possibility that Cuba
and Cubans might prefer life without them. On the contrary, they
effectively conspire with each other to disenfranchise Cuba and Cubans.20
As these observations make plain, Havana’s and Miami’s elites are
very differently structured and positioned. In Havana, the elites depend on
their monopoly over the prerogatives that accompany sovereignty in this
world: they control a state recognized globally as an independent country,
and therefore the apparati of nationhood. Havana’s elites have at their
disposal tools that range from a diplomatic corps to armed and espionage
services to the tax and police powers of formal statehood.21 In Miami, the
elites depend on their focused influence over the policy of the world’s sole
superpower on one particular issue—relations with Cuba;22 though they do
19. See John F. Stack, Jr. & Christopher L. Warren, The Reform Tradition and Ethnic
Politics: Metropolitan Miami Confronts the 1990s, MIAMI NOW! 160, 160-85 (Guillermo J. Grenier
& Alex Stepick III. eds., 1992); CROUCHER, supra note 7, at 133; Understanding the Cuban Model:
Cuban-Americans in Miami Politics, CUBAN-AMERICAN P OLITICAL EMPOWERMENT (Dr. Wilbur
Rich ed.), available at http://www.fiu.edu/~morenod/scholar/empower.htm; see also Karen BranchBrioso et al., Power Shift Seen for Dade Experts Predict Hispanic Gains, MIAMI HERALD, Sept. 4,
2000, at 1A. See generally Guillermo J. Grenier & Max J. Castro, Triadic Politics: Ethnicity, Race,
and Politics in Miami, 1959-1998, 68 HIST. REV. 273 (1999); Dan Sewell, Cubans Have
Transformed Miami Into an Island of Opportunity Immigrants: The Exiles and Their Children
Dominate the Economy, Government and Culture. The new order worries some black leaders, L.A.
TIMES, Dec. 23, 1990, Pt. A, available at 1990 WL 2290507; Jan Nijman, Globalization to a Latin
beat: the Miami growth machine, ANNALS AM. ACAD. POL. & SOC. SCI. 164 (1997).
20. See, e.g., TORRES, supra note 5, at 143.
21. See infra note 25 and sources cited therein on political repression in Cuba. While bringing
fiercely to bear the attributes and apparati of sovereignty to club down nonconforming persons who
threaten their dictatorial domination, the Havana elites have reveled in and cultivated the romantic
image of themselves as a heroic David slaying—or at least defying—the menacing Goliath of the
North, especially when the United States has brought to bear the same attributes and apparti of its
sovereignty against them; in both instances, ironically, sovereignty serves oppression. The use of
statehood extends to espionage operations designed to “infiltrate” and destabilize the Miami elites,
which Fidel and his minions label a “mafia” in intentionally pejorative ways. See, e.g., Ellis Berger,
INS Official Convicted in Spy Case: Federal Jury Rules Exile Passed Secrets to Cuba, SUNSENTINEL, May 31, 2000, at 1A.; Alfonso Chardy & Elaine De Valle, The New Cuba Crisis:
Havana Has Spied on Exiles for Years, MIAMI HERALD, Feb. 28, 1996, at 13A; David Kidwell,
Three More Accused Spies Agree to Plead Guilty, MIAMI HERALD, Oct. 9, 1998, at 4B; Associated
Press, 5 Cubans Convicted in Plot to Spy on U.S., N.Y. TIMES, June 9, 2001, at A12; Gail Epstein
Nieves & Alfonso Chardy, Cuban Spies Convicted: Sweeping Espionage Verdicts Include Murder
of Fliers: Exiles Call Castro’s Indictment in Air Deaths, MIAMI HERALD, June 9, 2001, at 1A;
Situation of Human Rights in Cuba, Comm’n on Human Rights Res. 16, U.N. ESCOR, 57th Sess.,
U.N. Doc. E/CN.4/RES/2001/16 (2001).
22. The “embargo” and its recent intensification via the Helms-Burton Act is one apt example
of this influence. See, e.g., Maya Bell, Powerful Foundation Focuses Fight to Free Cuba,
ORLANDO SENTINEL, Sept. 25, 1994, at A1, available at 1994 WL 4722917. See also Robert E.
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not “own” a country outright, as do the Havana elites, Miami’s elites have
shown a singular capacity (at least until the Elian affair) to manipulate
American policy toward all things Cuban (and, in turn, to be manipulated
by American policymakers23). Thus, in limited but crucial instances
Miami’s elites indirectly can activate the attributes and apparati of
American sovereignty to destabilize the Havana elites and to assert their
own interests.24 Without doubt, then, both sets of elites ground their power
in formidable structures and leverage them shrewdly. They are caught in
a mutual death grip because both have enough might to survive and
struggle endlessly, but neither has enough to triumph definitively. Though
positioned very differently in their sources and instruments of power, the
two elites have co-constructed a world of tensions suspended indefinitely
between their bipolar entrenchment.25 Despite the internal complexities
Freer, Jr., Helms-Burton Myths and Reality, 5 CUBA IN TRANSITION 429 (1995), available at http://
lanic.utexas.edu/la/cb/cuba/asce/cuba5; Digna B. French, Economic Sanctions Imposed by the
United States Against Cuba: Thirty-Nine Year Old Embargo Culminating with the Cuban Liberty
and Democratic Solidarity (Libertad) Act of 1996, 7 U. MIAMI INT’L & COMP. L. REV. 1 (19981999); Andreas F. Lowenfield, Agora: The Cuban Liberty and Democratic Solidarity (Libertad)
Act Congress and Cuba: The Helms-Burton Act, 90 AM. J. OF INT’L L. 419 (1996); Robert L. Muse,
International Symposium on the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1966:
A Public International Law Critique of the Extraterritorial Jurisdiction of the Helms-Burton Act
(Cuban Liberty and Democratic Solidarity (Libertad) Act of 1966), 30 GEO. WASH. J. INT’L L. &
ECON. 207 (1996-1997); Mercy B. Pina, Comment: Despite the Controversy Surrounding the
Helms-Burton Act Its End is Far From Becoming a Reality, 4 ILSA J. INT’L & COMP. L. 1259
(1998); Alejandro Portes, Morning in Miami; A New Era for Cuban-American Politics, AM.
PROSPECT, May-June 1998, at 28. This race-sex hierarchy of course reflects—and
perpetuates—historic hierarchies established by European colonization. See generally BETWEEN
RACE AND EMPIRE: AFRICAN-AMERICANS AND CUBANS BEFORE THE CUBAN REVOLUTION (Lisa
Brock & Digna Castaneda Fuertes eds., 1998), avaiable at http://www.netlibrary.com/
ebook_info.asp?product_id=51296.
23. The Bay of Pigs fiasco and missile crisis are ready examples of this mutual manipulation.
See HUGH THOMAS, CUBA, OR THE PURSUIT OF FREEDOM 1355-1419 (1998 ed.).
24. The Elian affair is a prime example of a failed effort. See Juan O. Tamayo, Saga of Elian;
Raid and Reunion, MIAMI HERALD, Apr. 25, 2000, at 9A. The Helms-Burton Act is a prime example
of a successful effort. See also supra note 22.
25. While both elites operate cohesively, as past and present experience—including the Elian
affair—amply confirm, they are not necessarily monolithic congregations of groups, persons, and
institutions. Havana’s and Miami’s elites do not always operate smoothly, or have all their foot
soldiers marching neatly in unison to the beat of the master drummers. In Havana, reports surface
periodically of political purges that reflect internal fissures. See, e.g., Rey Moseley, Drug
Crackdown Spurs Cuba Purge, CHI. TRIB., June 30, 1989, at 4M; Juan O. Tamayo, Cuba Toughens
Crackdown: ‘Biggest Wave of Repression So Far This Year,’ MIAMI HERALD, Nov. 11, 1999, at
1A; Juan O. Tamayo, Havana Tries to Stem Wave of Boat Escapes, MIAMI HERALD, July 22, 1999,
at 1A; Cuban Dissidents Complete Human Rights Fast, MIAMI HERALD, July 17, 1999, at 1A. See
also infra note 35 regarding political repression in Cuba. In Miami, in the meantime, intergenerational transitions are causing similar splits within the Cuban American National Foundation
(CANF), which oftentimes is described as the crucible for Miami’s Cuban elites. See, e.g., Rafael
2003]
291
and comparative differences, on both sides of the Straits, these dual elites
exist and operate as interconnected groups, persons, and institutions
actuated by a common formal platform of political ideology. On both sides
of the Straits, the adherents of these sometimes unruly factions can be, and
are, disciplined forcefully in various ways by their respective commanders
and comrades for straying too far from approved dictates.
These elites, however, do not represent—they do not even try to—the
multiple diverse communities that they profess to care so much about.
Indeed, both Havana and Miami house elites that represent the worst of
colonialism’s contemporary legacies. Both sustain racist, sexist, and
homophobic premises and structures of subordination.
In Cuba, for instance, positions of power both in the government and
in the party overwhelmingly still are held, controlled, and dispensed by
openly straight white men.26 Ditto in Miami’s Cuban enclave27—as
Lorente & Tamara Lytle, Trade Demands, Loss of Leader Sap Clout of Anti-Castro Cubans in U.S.,
CHI. TRIB., June 21, 2000, at 8; Christopher Marquis, Cuban-American Lobby on the Defensive,
N.Y. TIMES, June 30, 2000, at A12; Luisa Yanez, CANF Board Ponders Future Amid Public Rift,
MIAMI HERALD, July 22, 2001, at 3B. See also Cynthia Corzo et al., Foundation riven by dissent
among Miami Cubans, MIAMI HERALD, July 21, 2001, at 1A; Elaine De Valle & Carol Rosenberg,
Ex-CANF Member Explains Resignation, MIAMI HERALD, July 24, 2001, at 1B; Elaine De Valle
& Carol Rosenberg, CANF Ignites Cuban Media, MIAMI HERALD, July 25, 2001, at 3A; Fabiola
Santiago, CANF leader claims his late father’s legacy but says he doesn’t walk in his shadow,
MIAMI HERALD, July 29, 2001, at 1A.; Robert L. Steinback, CANF Rift May Open New Doors,
MIAMI HERALD, July 29, 2001, at 1B. Nevertheless, and in spite of their various differences, both
bipolar elites have shown themselves over time to be cohesive forces and formations, even if only
by their increasing interest in self-perpetuation and self-aggrandizement above all—certainly above
the protection or advancement of the principles they loudly tout(ed).
26. See generally LOIS M. SMITH & ALFRED PADULA, SEX AND REVOLUTION: WOMEN IN
SOCIALIST CUBA 45-187 (1996); Julie Marie Bunck, Women and the Post-Cold War Socialism: The
Cases of Cuba and Vietnam, 7 CUBA IN TRANSITION 21, 26-27 (1997), at
http://lanic.ulexcs.edu//a/Cuba/ asce/Cuba7/bunck.pdf; Debra Evenson, Women’s Equality in Cuba:
What Difference Does a Revolution Make?, 4 LAW & INEQ. 295 (1986). See also STATISTICAL
RECORD OF WOMEN WORLDWIDE 605-606 (Linda Schmittroth ed., 1991); Nadine T. Fernandez, The
Color of Love: Young Interracial Couples in Cuba, 23 LATIN AM. PERSP. 99 (1996); Alejandro de
la Fuente, Race, National Discourse, and Politics in Cuba, 25 LATIN AM. P ERSP. 43 (1998);
Alejandro de la Fuente, The Resurgence of Racism in Cuba, 34 NACLA REP. ON AM. 29 (2001);
Tanya Kateri Hernandez, Multiracial Matrix: The Role of Ideology in Enforcement of
Antidiscrimination Laws, A United States-Latin America Comparison, 87 CORNELL L. REV. 1093,
1133-44 (2002) (analyzing race and White supremacy in Cuba); Sheryl L. Lutjens, Reading
Between the Lines: Women, the States, and Rectification in Cuba, 22 LATIN AM. PERSP.100, (1995);
National Assembly of the People’s Power, Government and Politics of Cuba: A Comprehensive
Resource of Cuba’s Government Structure, Politics, and Actors (July 2001), available at
http://www.cubapolidata. com/gpc/gpc_institutional_order.html (last visited Oct. 18, 2002). As with
male and White supremacy on the island, today’s Cuba similarly retains its historic hetrosexism.
See, e.g., IAN LUMSDEN, MACHOS, MARICONES AND GAYS: CUBA AND HOMOSEXUALITY (1996).
27. See generally U.S. CENSUS BUREAU, CURRENT POPULATION REPORTS, SERIES P23-205,
Population Profile of the United States: America at the Close of the 20th Century (U.S. Government
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throughout the United States, more generally.28 And, both camps are elitist
and classist—though they differ on their choice of political or ideological
pivots for the erection of their elites, classes, and hierarchies. Thus,
Havana’s elites favor the straight white men who espouse their pet slogans
while Miami’s elites do likewise; and, in both instances, these are the
persons who tend to reside in the nicest homes and neighborhoods of their
respective domains. In both instances, these post/neo/colonial elites use
Law to buttress their control of Society, and embed personal predilection
in Law to safeguard their arrogated privileges and reproduce the structural
predominance of their kind in Law and throughout Society. While
apologists on both sides of the Florida Straits are quick to issue
impassioned defenses of the ultimate intentions that justify present
shortcomings, the fact remains that in nearly a half century neither
Havana’s nor Miami’s elites have shown much interest in social
transformation when it might disturb their preferred positions at the apex
of their respective heaps.
Euroheteropatriarchy still governs hegemonically in the worlds and
agendas constructed both by Havana’s and Miami’s elites:29 both sides of
Printing Office, 2002); U.S. CENSUS BUREAU; POPULATION PROJECTIONS OF THE UNITED STATES
BY AGE, SEX, AND HISPANIC ORIGIN: 1995 TO 2050, available at
http://www.census.gov/prod/www/titles.html#popest; THE CUBAN AMERICAN NATIONAL COUNCIL,
A DEMOGRAPHIC P ROFILE OF CUBAN AMERICANS (1994) [hereinafter DEMOGRAPHIC PROFILE OF
CUBAN AMERICANS]; Anthony DePalma, For Haitians, Voyage to a Land of Inequality, N.Y.
TIMES, July 16, 1991, at A1; Lydia Martin, Lifting the Burden of Machismo More Women Speaking
Out Against Hispanic Tradition of Patriarchy, MIAMI HERALD, Feb. 13, 1994, at 1J; Government
& Elections, HISPANIC AMERICANS: A STATISTICAL SOURCEBOOK, 108-09 (2001); Mireya Navarro,
Black and Cuban-American: Bias in 2 Worlds, N.Y. TIMES, Sept. 13, 1997, at A3; Mirta Ojito, How
Race is Lived in America, N.Y. TIMES, June 5, 2000, at A1; Schmittroth, supra note 26, at 600 &
612. See also Karen Branch-Brioso et al., The Real Power in Dade Despite Hispanic Majority,
White Non-Hispanics Hold Sway Control of Key Public, Private Positions Contradicts Image,
Herald Survey Finds, MIAMI HERALD, Sept. 3, 2000, at 1A.
28. See generally BUREAU OF CENSUS, 1992 CENSUS OF GOVERNMENTS, 1 GOVERNMENT
ORGANIZATION, NUM. 2, POPULARLY ELECTED OFFICIALS 20-21 (1995).
29. Euroheteropatriarchy describes a Eurocentric fusion of androsexist and heterosexist biases
and prejudices producing over time the systematic privileging of humans, groups, norms and values
that are identified, among other things, as white, masculine and heterosexual. See Francisco Valdes,
Symposium, Intersections: Sexuality, Cultural Tradition, and the Law: Unpacking HeteroPatriarchy: Tracing the Conflation on Sex, Gender and Sexual Orientation to Its Origins, 8 YALE
J.L. & HUMAN. 161 (1996) (describing some of the sex/gender and sexual orientation norms that
underlie and animate androsexism and heterosexism to produce the patriarchal form of
homophobia—heteropatriarchy—that still prevails in Euroamerican societies, including the United
States, today). As elaborated here, it is prevalent in Cuba and among Cubans, both on the island and
throughout the Diaspora. It is rooted in the normativities introduced and imposed by Iberian and
other European conquistadors. It is supported by the cultural and political preferences of American
imperialism throughout this hemisphere during the past century or two. Today, both sets of elites
reproduce Euroheteropatriarchy in the act of re/producing themselves and their hierarchies;
2003]
293
the Florida Straits remain anchored to a preference for openly straight
white men as the leaders and principal beneficiaries of their inter/national
projects. White supremacy, male supremacy, and straight supremacy reign
still over Cubans, whether in Havana or Miami.30
These dueling elites thus represent little more than sanitized competing
political ideals to which they once might have aspired authentically, but
to which they no longer bow. Both sides of the Straits now connive to foist
on Cuba and Cubans the worn, sugarcoated slogans that serve mainly to
maintain their personal positions and mutually self-interested politics. This
devolution today shows that Havana’s elites would rather sell the country
to opportunistic and ravenous neocolonial capitalists from Canada and
Europe—most noticeably, and some would say ironically, the old colonial
master, Spain—and to accommodate the growing prostitution and sex
tourism on the island generated from the “decadent” societies with which
Havana elites choose to conduct “business,” than to accept even a
modicum of political or economic decentralization.31 For their part,
Miami’s elites would rather destroy the country’s infrastructure and,
apparently, starve every single person on the island than take even a first
tiny step toward negotiated resolution to the embargo they erected with a
regardless of the emphasized differences in political ideology, the same social profile comes out
“on top” while the same marginalized identities are pushed to “the bottom”—both in Havana and
in Miami.
30. Of course, Fidelismo has enabled the betterment of living conditions for some segments
of the population: some women and nonwhites have risen in the ranks of Cuba’s hierarchies while
the oppression of sexual minorities waxes and wanes according to the pulse of Havana’s elites. See
generally ALEJANDRO DE LA FUENTE, RECREATING RACISM: RACE AND DISCRIMINATION IN CUBA’S
“SPECIAL PERIOD” (1998); FAGEN, supra note 15, at 39-47 and 121-42; Phillip Geyelin, Fidel’s
Cuba: Castro Hangs Onto His Big Following Despite Rising Economic Woes, WALL ST. J., Aug.
14, 1964, at 1; James C. McKinley, In City of Castro’s Triumph, Most Still Back Him, N.Y. TIMES,
Jan. 2, 1999, at A3. See also supra note 26 and sources cited therein on race, sex, and sexual
orientation in Fidel’s Cuba. The same is true in the United States generally. See U.S. CENSUS
BUREAU, CURRENT POPULATION REPORTS, MONEY INCOME IN THE UNITED STATES: 1999 (U.S.
Government Printing Office), P60-209 pg. xi, available at http://www.census.gov/hhes/
www/income99.html; U.S. CENSUS BUREAU, HISTORICAL INCOME TABLES: CURRENT POPULATION
SURVEY (2002), available at http://www.census.gov/hhes/income/histinc/histinctb.html.; and
specifically among the exile enclave in Miami. See, e.g., PORTES & STEPICK, supra note 7, at 12349. See also DEMOGRAPHIC PROFILE OF CUBAN AMERICANS, supra note 27. Both over there and
over here, some social and legal conditions indeed have been made “better” in material terms for
some Cubans, including some identified with traditionally oppressed outgroups. Yet the privilege
and dominance of straight white men remains structurally entrenched.
31. See, e.g., Julia O’Connell Davidson, Sex tourism in Cuba, 38 RACE & CLASS: J. FOR
BLACK & THIRD WORLD LIBERATION 39-49 (1996); Paul Cullen, Tourism Corrodes Soul of Cuban
Revolution, IRISH TIMES, Jan. 8, 2001, at 14 (World News); Isabel Garcia-Zarza, Restricted Access,
available at http://abc.go.com/sections/travel.DailyNews/cubatourism000302.html (last visited
Aug. 8, 2001); Ron Howell, In Cuba, Old Racial Attitudes Revived; Critics Say Tourism Has
Brought Bias Back, NEWSDAY, May 13, 2001, at A04;.
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complicitous United States.32 Both sets of elites, in short, remain uniformly
committed first and foremost to their own reproduction in both ideological
and demographic terms.
Each camp has failed in ultimate and substantive terms, for neither has
cared enough about its proclaimed communities and original principles,
and both have cared too much about the pursuit and perpetuation of their
supremacy; both have opted for personal gain over principled nationbuilding. On the island, Fidel certainly has not honored his early words
and promises of egalitarian reformation with actions and policies designed
consistently to fulfill them.33 His regime has, instead, cultivated a cultist
centralization of power in his person; while Fidel does not (and humanly
cannot) control every act or abuse that takes place in his revolution’s
name, he wields virtually absolute influence over any particular decision
of policy or practice in his government, and he has shown himself ready,
willing, and able to order unilaterally, and at will, acts of violence or
intimidation directed against the Cuban people.34 Today, his government
increasingly misuses and abuses national sovereignty and its attributes to
oppress, rather than to empower or liberate, Cuba and Cubans.35
Fidelismo’s early promise consequently does not match its actual
record—even before the embargo and even in matters that cannot, by any
stretch of the imagination, be imputed by rote to “the embargo.” In the
enclave, Miami’s elites on the whole have shown a stalwart interest in
“freedom of expression” and “democracy”—but only when they liked
what they saw and heard.36 And when not, exile elites have whipped up
32. See, e.g., Peter G. Bourne, The Impact of the U.S. Embargo on Health and Nutrition in
Cuba, 8 CUBA IN TRANSITION 213 (1998), available at http://lanic.utexas.edu/la/cb/cuba/
asce/cuba8; Maria C. Werlau, The Effects of the U.S. Embargo on Health and Nutrition in Cuba:
A Critical Analysis, 8 C UBA IN T RANSIT ION 219 (1998), available at
http://lanic.utexas.edu/la/cb/cuba/ asce/cuba8; Guy Gugliotta, Hard-Liners Dig in on the Issue of
Embargo; Cuban American Foundation Is Determined Not to Founder After Loss of Its Leader,
WASH. POST, Jan. 21, 1998, at A16; Juan O. Tamayo, Ex-U.S. Official to Lead Pro-Embargo Drive,
MIAMI HERALD, June 30, 2000, at 1A. See generally UNITED STATES INTERNATIONAL TRADE
COMMISSION, THE ECONOMIC IMPACT OF U.S. SANCTIONS WITH RESPECT TO CUBA, Investigation
No. 332-413 (2001), available at ftp://ftp.usite.gov/reports/studies/pub3398.pdf. But cf. Ken
Guggenheim, Embargo’s Impact Slight, Report Says Cuba’s Trade Seen as Limited by Own
Politics, MIAMI HERALD, Feb. 16, 2001, at 1A.
33. See generally LEONARD, supra note 17, at 85.
35. See, e.g., Castro Abuses Crime Crackdown to Muzzle Political Dissidents, FORT
LAUDERDALE SUN-SENTINEL, Feb. 23, 1999, at 22A; Howard W. French, Castro Meets Dissent
With an Iron Hand, N.Y. TIMES, Dec. 8, 1991, at 3; Colin McMahon, Castro’s Crackdown, CHI.
TRIB., Mar. 1, 1996, at 1N. See also supra notes 17, 18 and 25 and sources cited therein on Fidel’s
political dictatorship.
36. For example, one of Miami’s most established and prominent restaurants in Little
Havana—Centro Vasco—was bombed and driven out of business when it dared to allow a Cuban
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outrageous reactions, including acts of violence and intimidation, from
misinformed and excitable constituencies.37 In sum, the dominant elites on
both sides of the Straits have resorted to vicious disinformation, social
suppression and physical violence for the sake of power, preferring to
“win” their petty but destructive battles at any cost—especially when
“winning” has become tantamount to personal power and privilege. In
their reciprocal craving for status, comfort and triumph, both have
deformed or eclipsed their original sense of ethics and have rendered
themselves into caricatures of their early, and perhaps once authentic,
impulses.
Nonetheless, or perhaps consequently, since 1959 Cubans both on the
island and throughout the diaspora increasingly have been situated by
themselves and others as “for” and “against” the two different and
powerful political camps that emerged contemporaneously in Havana and
Miami from the ascension of Fidelismo and the outflux of refugees.38 In
Havana, time has enabled a bold, if corrupt, experiment that still defies the
homogenizing pressures of rapacious capitalism and, most recently,
neoliberal embrace of corporatist globalization; despite its fundamental
flaws, this soiled experiment provides some hope that a concrete
alternative to this newest, transnational hegemony-in-the-making may yet
become vital.39 From Miami, time has permitted the formation and
singer from the island to perform on its premises. See Armando Correa, Restaurant Cancels Cuban
Singer’s Performances Centro Vasco Had Been Firebombed, MIAMI HERALD, July 13, 1996, at 1B;
Frances Robles, A Landmark’s End: Centro Vasco Falls Prey to Exile Politics, MIAMI HERALD,
Oct. 27, 1996, at 1B. This example is neither unique nor rare. See Heating up Cuba: Anti-Castro
Exiles Plot New Raids, Aim to Win Stronger U.S. Support, WALL ST. J., Sept. 18, 1962, at 1; All
Things Considered, Analysis: Cuban-American Radio Stations Influence the Cuban Community
(Nat’l Pub. Radio Broadcast), Apr. 18, 2000, 2000 WL 21468835; David Adams, Bombs Do Not
Destroy Miami’s New Tolerance, ST. PETERSBURG TIMES, Aug. 5, 1996, at 1B; Pamela Constable,
New Voices of Exile Although the Cuban-American Political Establishment Remains Conservative,
Democrats and Socialistic Iconoclasts Are Gaining Ground. “For The First Time in This
Community,” Says One Party Leader, “There Is A Legitimate Debate Going On,” BOSTON GLOBE,
July 25, 1993, at 10; Shelley Emling, Miami Politics Bar Cuban Musicians From Festival,
ATLANTA J. & CONST., Aug. 31, 1997, at 8A; Lydia Martin, Violence, Dialogue In a Year of
Tumult, MIAMI HERALD, Dec. 29, 1996, at 1I.
37. See, e.g., Liz Balzameda, Emilio Milián, Broadcaster Who Denounced Terror, Dies,
MIAMI HERALD, Mar. 16, 2001, at 1A; Liz Balsameda, Milián a Symbol of Courage, MIAMI
HERALD, Mar. 19, 2001, at 1B; Castro Foe Injured in Miami Car Blast, N.Y. TIMES, May 1, 1976,
at 42. See also Cuban Hit Squad: Anti-Castro ‘Omega 7’ Evokes Terror in U.S. With Murders,
Bombs, WALL ST. J., Dec. 30, 1981, at 1; ALPHA 66, available at http://www.alpha66.org/; Luisa
Yanez, Hundreds Mourn ‘Man of Honor,’ MIAMI HERALD, Mar. 18, 2001, at 4B.
38. See generally TORRES, supra note 5.
39. This possibility attracts support for Fidel despite his political totalitarianism. See, e.g.,
Richard Boudreaux, Mandela Lauds Castro as Visit to Cuba Ends; Diplomacy: ANC Leader Cites
the Communist Revolution and Says “We, too, want to control our own destiny,” L.A. TIMES, July
28, 1991, at A4; Castro’s Anti-U.S. Message Is Welcomed By a Malaysian Leader Critical of
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flourishment of an “exile” community that, despite its regular fits of
intolerance and vitriol, still vaunts within Cuban inter/national discourse
and politics the importance to human wellbeing of individual agency and
freedom of expression in economic and political matters; this rancorous
experiment has prevented a quiet consolidation of both tyranny and social
justice within the island’s confines.40 During this time, as the Elian case
has illustrated, both camps have done a superlative job in propagating and
legitimating their world views. Both sets of elites have constructed
discourses, regimes, and communities that give political, intellectual, and
material spectacle to the hierarchies that they signify and valorize. Both
sets of elites, in tandem, have enabled each other’s clamp on their
respective levers of power and privilege, as opposing cosmologies that
coexist primarily, if not exclusively, as a result of the high-tension
stalemate that they have managed to cocreate before a rapt and dazed
world.
Increasingly, then, it has become clear that Havana and Miami
represent, for Cuba and Cubans, a choice between a rock and a hard place.
Havana, like a rock, has insisted that its bold experiment can exist only if
“the people” agree to forfeit political agency on both individual and
national levels—and in effective perpetuity.41 Miami, like a hard place, has
insisted that human agency and freedom of expression can exist only if
“the people” accept the unjust precepts and vagaries of rampant capitalism,
including social inequality and extreme poverty—also in effective
perpetuity.42 With increasing absolutism, inspired in part by the demands
and dynamics of bipolarization, these two capitals of Cuba and Cubans
have preached and practiced ideologies that construct politically
“different” yet strikingly similar hierarchies of privilege and
power—arrangements that structurally and substantively benefit the
neocolonial few at the expense of the multiply diverse many. Despite their
tangible successes as measured in narrow and selfish terms, time is not on
their side.
Globalization, Cuban Salutes His Hosts as Fellow Rebels, ST. LOUIS POST-DISPATCH, May 13,
2001, at A5; At Castro’s Invitation, Aristide Visits Havana, MIAMI HERALD, July 18, 2001, at 14A;
Castro Uses Forum of Poor Nations to Attack Capitalism, CHI. TRIB., Apr. 13, 2000, at N23; Roger
Simon, Mandela Commends Clinton, Defends Ties to Libya, Cuba, CHI. TRIB., Mar. 28, 1998, at
N3; Richard Sine, Castro Looms Over Meeting: Cuba Questions Fill Air As IDB Members Debate,
NEW ORLEANS TIMES-PICAYUNE, Mar. 29, 2000, at C01.
40. See generally TORRES, supra note 5 (recounting and analyzing the waves of Cuban
immigration since Castro’s victory over Batista’s dictatorship, and the sociopolitical implications
of these migrations).
41. See generally DRAPER, supra note 4, at 42-48.
42. See generally TORRES, supra note 5, at 155-200.
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B. Arrogation and Class Distinctions: The Politics of
Tyranny and Money
One of Fidel’s principal methods of imposing “justice” and
disempowering his “enemies” upon seizing power in 1959 was ruthlessly
to concentrate control over all property in himself and his cronies.43 This
sweeping dispossession of the Cuban people was not a nuanced or orderly
project. And it extended not just to grand plantations, or even street-corner
pharmacies, but to everything of every kind, including personal
possessions. Though Fidel’s rules on property ownership and use have
shifted with the winds of need and strategy,44 his centralized control over
the disposition and reallocation of all forms of property, and of their
commercial or personal uses, has been the crucible for the construction of
“rich” and “poor”—those who eat well and those who do not, those who
travel and those who do not, those who live comfortably and those who do
not. Thus, in Cuba, Havana’s elites control the party that controls the state
43. See generally STEVEN E. HENDRIX, TENSIONS IN CUBAN PROPERTY LAW, 29 (1996);
Nicolas J. Gutierrez, Jr., Esq., The De-Constitutionalization of Property Rights: Castro’s Systematic
Assault on Private Ownership in Cuba, 5 Y.B. OF INT’L L. 51 (1996/1997); Jose A. Ortiz, The
Illegal Expropriation of Property in Cuba: A Historical and Legal Analysis of the Takings and a
Survey of Restitution Schemes for a Post-Socialist Cuba, 22 LOY. L.A. INT’L & COMP. L. REV. 321
(2000); Eduardo Moises Penalver, Redistributing Property: Natural Law, International Norms, and
the Property Reforms of the Cuban Revolution, 52 FLA. L. REV. 107 (2000). See also infra note 44
on Fidel’s property take-overs.
44. See generally LEONARD, supra note 17, at 85. The reports of the news media over the
years reflect these policy shifts. See, e.g., Joie Chen & Lucia Newman, Bad Business: Cuba Cracks
Down on Private Enterprise, (CNN Television Broadcast, Mar. 9, 2001), available at LEXIS, News
library, CNN file; A Crash Course in Economics: The Belated Discovery of Profit and Loss,
ECONOMIST, Apr. 6, 1996, at 5; Robert D. Cruz & J. Antonio Villamil, Sustainable small enterprise
development in a Cuban transition economy, 34 STUD. COMP. INT’L DEV. 100 (2000); Business
Group Wants Private Sector in Cuba, ORLANDO SENTINEL, Dec. 2, 1999, at A18; Cuba’s Economy:
Mala Vista Social Club, ECONOMIST, Oct. 23, 1999, at 37; Open for Business? Cuba’s Economy,
ECONOMIST, Dec. 4, 1993, at 71; Cuba’s Economic Repression, Mar. 16, 2001, available at
http://www.ibb.gov/editorials/09186.htm; Cuba Promotes Oil Business in Exclusive Economic
Zone, BBC WORLDWIDE MONITORING, (BBC Television Broadcast, Aug. 11, 1999), available at
LEXIS, News library, BBCMIR file; Laurie Goering, The Hazards of Enterprise, ECONOMIST, Apr.
6, 1996, at 7; Laurie Goering, Cuba’s Small Capitalists Face Less Friendly Future: They Helped
the Nation Weather an Economic Low, But the Government is Making Things Much Tougher Now,
CHI. TRIB., Jun. 20, 2001, at N1, available at CUBANEWS, http://www.cubanet.org/Cnews/y01/
jun01/20e9.htm; Hispanics-Cuba/Spain (1st Lead) Spaniards and Cubans Pledge More Business,
EFE NEWS SERVICE, July 7, 2001, available at LEXIS, World library, 6NW file; Lucia Newman,
Cuba squeezes private business as economy grows, CNN, Mar. 11, 2001, available at CUBANEWS
http://www.cuabmet.org/ Cnews01/mar01/12e6.htm; Marta Beatrice Roque, A Cuban Economist
Calls for Less Official Meddling, WALL ST. J., Nov. 24, 2000, at A17; Cuba Slows Free Market
Changes, May 1, 1996, available at http://www.sn.apc.org/wmail/issues/ 960501/BUS17.html.
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that controls all property.45 In this way, the governing cliques retain
effective control over the attributes of “ownership” of all property and its
uses via their strict control of the party and government—due to their prior
deployment of “the state” to “nationalize” property, thereby arrogating
personal control (and, if desired, personal possession) of any given asset.
In this manner, Havana’s elites arrogate and dispense the best of
everything to themselves, their courtiers, and their foot soldiers.
In key and ironic ways, the Fidelista construction of personal economic
security or wellbeing is very similar to Cuba’s colonial structuring, in
which personal material comforts, or socioeconomic status, are linked to
the personal favors of the king or jefe—or of his designated
agents—based, typically, on demonstrated levels of political servitude and
utility.46 This construction is similar, in fact, to the days immediately
preceding Fidel’s revolution, when another corrupt dictatorship controlled
the state and the people—and their personal properties or fortunes—with
brute force.47 In today’s Cuba, as in yesterday’s, access to economic
advancement remains structurally correlated to manifest political
allegiance to the Havana elites’ self-serving agendas. Today as before, the
loyalists live well—and it is no coincidence that Cuba’s ruling class
continues to consist mostly of White men; the rest, for the most part, do
not.48 In this ongoing scheme, both possession and dispossession are
45. See generally supra note 44 and sources cited therein on Cuba’s changing policy on
property, trade, and private enterprise.
46. See SIMONS, supra note 10, at 102-13 (discussing colonial arrangements).
47. The followers of Fidel’s predecessor, Fulgencio Batista, continue to live in the United
States and abroad. See Michael Bowning, The Cuban Revolution, 40 Years Later: For Batista’s
Dwindling Band, Each New Year Dawns Somberly, PALM BEACH POST, Jan. 1, 1999, at 1A.
48. See generally supra note 26 cited therein on the identity politics of Cuban society and
government. The material dimensions of these power/status disparities have been exacerbated by
the “dollarization” of the Cuban economy—an ironic act for a socialist state, and one that has
spawned a “dual economy” on the island, vividly illustrating both how far Havana’s elites have
compromised their original principles as well as that they effectively have abandoned their formal
revolutionary aspirations. See generally CARMELA MESA-LAGO, ARE ECONOMIC REFORMS
PROPELLING CUBA TO THE MARKET? 24-30 (1994). In this dual economy, the Havana elites’ control
over jobs—and over coveted access to the dollar—freely use their control over such access to
practice politics, and to shore up their elite status and power, as illustrated in the political
maneuvering over the “Varela Project.” One woman, for example, expressed the fear of job loss
if she did not publicly subscribe to the party line on questions of political reforms, saying “Don’t
you realize? I work in a dollar store.” Another was quoted as saying that, “You know what is
expected of you . . . so you go and get it over with.” See Anita Snow, Associated Press, Cubans
Want to Know Text of Varela Project, ORLANDO SENTINEL, June 24, 2002, at A11. At a recent
academic conference on Cuba’s economy, Cuba scholars widely reported the existence of a highly
centralized economic order controlled directly by the party elites through the structures and apparati
of government—a centralization of control that ensures control over the nation’s (non)productivity,
wealth and potential in part by adopting capitalist techniques in highly strategic ways. See Time
Johnson, Castro has Chokehold on Private Sector, Scholars Say, MIAMI HERALD, Nov. 21, 2002,
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decided from above—centrally and potentially immediately—in economic,
social, and political terms.
Also in keeping with colonial times, this political monopoly over the
“good things in life”—ranging from private residences to international
travel, and from shoes to vegetables—is the scheme through which not
only class hierarchies are constructed in today’s Cuba but also through
which political allegiance is induced strategically. This monopoly both
entrenches the Havana elites’ political power and determines class position
for everyone on the island. This unchecked power over material conditions
and comforts, now as then, has served mightily to help Havana’s elites
entrench political control over the people and economy of the island.
Today, under Fidelismo’s tightly centralized systems of control, persons
deemed ideologically unreliable simply have no chance of personal
security, much less success, either in social or economic terms.49 The
Havana elites’ complete control and shrewd manipulation of their unjust
monopoly, which gives them the power to determine socioeconomic status
for every single individual on the island, is a mighty source of tyranny
because it manipulates and exploits human needs and wants.
Fidelismo, of course, has not erased the need to acquire food, shelter,
and other material necessities and luxuries of corporeal human existence.
But, despite its longstanding monopoly on power, Fidelismo has not erased
stratification based on distinctions in access to, enjoyment of, and control
over socioeconomic goods and opportunities. Class construction thus
occurs in Cuba, albeit differently than in Miami or other capitalist
contexts. Fidelismo, in other words, has not erased the existence of “class”
in Cuba or material inequalities among “classes” of Cubans. Under
Fidelismo, where “the state” holds dominion over all property, and where
“the state” in fact amounts to a small self-anointed clique of straight white
men that rule by the force of the gun, the social and economic fortunes of
multiply diverse individuals are decided by those men in reference to their
own perceived self interests, and at the expense of all others, including
society as a whole. Fidelismo, then, simply has reconfigured the politics
of class construction between and among Cubans in Cuba.
In Miami, as one might expect, class is constructed in the typical
capitalist ways of these times, as practiced generally in the United States
at 9A. See also supra note 18 and sources cited therein on power structures, relations, and dynamics
on the island. The bottom line generated through these intersections of identity, ideology, class, and
status is that the formally supreme political body on the island, the party Politburo, remains a
bastion of White men—none of them openly gay. See PABLO ALONSO, LOS ULTIMOS CASTRISTAS
(1998) (describing the individual members of this ruling group).
49. See generally Andres Oppenheimer, Free Four Dissidents, Europe Tells Cuba, MIAMI
HERALD, Mar. 18, 1999, at 1A; Cuba Law Cracking Down on Dissidents Passed, MIAMI HERALD,
Feb. 17, 1999, at 10A. See also supra notes 25 and 35 on Fidel’s political monopoly.
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and, increasingly, globally: human exploitation for short-term profit
maximization and personal material enrichment. But the Miami elites also
have carved out their well-publicized socioeconomic “enclave” in Miami,
an ethnic universe that in many ways parallels the local traditional Anglo
establishment and that serves as a springboard both to economic
enrichment and inter/national political influence.50 In this enclave’s highly
politicized environment, politics, ideology, and class also intersect
relentlessly; although the overarching (dis)incentive structure is organized
around contemporary capitalism, and although Miami elites do not enjoy
the centralized and nearly absolute political power of their Havana
counterparts, access to opportunity and comfort in Miami, and especially
in the enclave, oftentimes is linked to politics and ideology—more
specifically, political allegiance to, and ideological conformance with, the
Miami elites and their interests. It is no coincidence that the rich and
famous produced by the enclave are time and again elite-identified in both
ideological and demographic terms;51 in this circular process, allegiance
begets recognition and reward, while opposition attracts the ostracism and
oppression—removal from the corridors of opportunity, status, and
influence.
Thus, both in Miami and in Havana, the elites use ideology to design
and engineer class construction. Both here and there, the elites strive to
control individuals’ access to personal advancement and enrichment in a
manner designed principally to shore up their own political agendas and
personal status. Both are unjust because both elevate in structural terms the
personal gain of a powerful few at the expense of social equity and
progress for the many.
C. Global Circus, Domestic Division: Cubans as
Sport and Spectacle
While Havana’s and Miami’s elites are the principal antagonists in this
tragedy, the colossus to the North—the United States, its government and
its public—represents an omnipresent set of factors that exert a powerful
force on the dynamics of Cubans’ bifurcated state. “Yanquis” are both the
audience and actor in myriad and interlacing ways. The government of the
United States, like the Havana and Miami elites, is integral to this
stalemated status quo; Cuba remains a uniquely sore point for the United
50. See supra note 7 on Miami’s “Latinization.”
51. The Cuban power structure in Miami tends to be white, male, capitalist, and conservative.
See generally LEONARD, supra note 17, at 67-78 (describing the “angry exiles” of Miami).
Relations between Miami’s Cuban elites and the local Black community generally are distant, or
worse. See PORTES & STEPICK, supra note 7, at 177-202 (discussing Miami’s Black communities
since the Cuban influx). See also supra note 27 on Cuban demographics in Miami and the United
States.
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States because it is one of the few “little” countries that ever had the
audacity and capacity to stand up, successfully, to the United States and
its elites while under their shadow, literally, and because it did so in the
midst of a larger bifurcation: the Cold War. The Miami elites and their
foot soldiers thus have served a dual role for the government of this
country and its ruling elites: while exercising great and sometimes
definitive influence over the Cuba policy of the United States government,
they also have been used as pawns or surrogates when the United States
and its elites have elected to manipulate the exiles’ rigid views of Cuba for
their own—and sometimes base—purposes.52 It is no coincidence, after all,
that we find Miami Cubans involved in everything from the Watergate
burglary in Washington D.C. to the Contra campaign in Nicaragua.53 Thus,
the role of the United States—as represented by its formal government
agencies and driven by its Left and Right wings—has been less than
positive or benign; these North American forces lend legitimacy to their
favored camps and thereby create significant impediments to any effort
that seeks to transcend the Havana-Miami axis of conflict.
The Left in the United States, still in a hangover from the heady days
of now-broken revolutionary promises, has romanticized Havana’s elites
for years. This romance effectively occludes the horrors the Havana elites
perpetrate on the people of Cuba, in particular those who seek to express
a dissenting sense of self. As a corollary, the North American Left
demonizes not only Miami’s elites in ideological terms, but also in racial
and other essentialist and essentializing terms: in the Left’s “progressive”
mindset, Cubans in Cuba are imagined and constructed as socially just and
principled, and their “mistakes” are unfortunate but due only to the
embargo, while Miami’s Cubans are depicted as a crazy bunch of White
and spoiled members of Cuba’s pre-Fidelista ruling classes.54 At the same
time, the Right in the United States conversely romanticizes Miami’s elites
52. See generally TORRES, supra note 5, at 127.
53. See, e.g., Alfonso Chardy, Cuban Fugitive Tied to Contras’ Supply Delivery, MIAMI
HERALD, Aug. 26, 1987, at 18A; Alfonso Chardy, Mas Canosa Helped Cuban Exile Contact
Contras, Testimony Says, MIAMI HERALD, May 19, 1988, at 6A; Sandra Dibble, Who’ll Help Our
Cause? Cubans Ask Debate Contra Aid, Anti-Castro Battle, MIAMI HERALD, Nov. 2, 1986, at 15A;
David Lawrence, Jr., The Man From Watergate, MIAMI HERALD, June 15, 1997, at 3L; Lourdes
Merluza, Cuban Contras Recruited in Miami, MIAMI HERALD, June 26, 1986, at 11A; Carol
Rosenberg, Plotter of Bay of Pigs, Watergate Conspirator: ‘File and Forget’ Castro, MIAMI
HERALD, June 28, 2001, at 4A; Andres Viglucci, Watergate Thief Denies Portrayal in Exile’s Book,
MIAMI HERALD, Nov. 20, 1999, at 3B.
54. See generally Susana Barciela, Bashing the Cubans: The Elian Saga Prompted Open
Season on Exiles, 13 HISPANIC 128, (2000); Victor M. Diaz, Jr., The Few Liberal Voices Don’t
Represent Views of Most Cuban Americans, MIAMI HERALD, May 15, 2000, at 7B; Andres
Oppenheimer, Media Bias, Dismissive Labels Anger Cuban Exiles, MIAMI HERALD, Apr. 6, 2000,
at 6A; Fabiola Santiago & John Dorschner, Outside Image Bewilders Exiles, MIAMI HERALD, Apr.
23, 2000, at 4B.
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as brave freedom fighters while demonizing Cuba and Havana in similarly
essentialist and essentializing ways: Cubans in Cuba are uniformly cast as
dictatorial devils with not even a scintilla of principle or vision. In this
way, both the Right and the Left prop up the stalemate that divides Cuba
and Cubans; for this reason, both the Left and the Right share
responsibility with Miami’s and Havana’s elites in the fanatical
maintenance of this tense bifurcation.
“International public opinion” similarly has helped to construct an
unproductive framework for the dueling elites ensconced in Miami and
Havana. The resolutions and reports of entities ranging from the United
Nations to Amnesty International have shown the same tendencies as the
forces within the United States: Leftist groups help to promulgate the
propaganda of Havana’s elites and their allies55 while Rightist groups help
to promulgate the propaganda of Miami’s elites and their allies.56 Many
around the world therefore continue romanticizing Fidel’s regime as the
“victim” of the colossus to the North and its Miami puppets, while many
others around the world romanticize the exile Cuban community and their
North American patrons as valiant upholders of democracy, freedom, and
liberty. By valorizing their respective “side” of Cuba’s forced bifurcation,
they reinforce the ossified viewpoints and tensions of both Havana and
Miami—and thus help to prop them up despite their corrosive and corrupt
ways.
Thus, both “domestic” political factions and “international public
opinion” abet the Miami and Havana elites’ co-construction of this
antagonistic discourse, impelling these dueling elites both with substantive
and symbolic supports that, in effect, help to drive a destructive wedge
between Cubans and other Latinas/os in the United States. Both from the
Left and the Right, the Miami elites have been encouraged structurally and
pressured politically to digress from progressive agendas on issues ranging
from affirmative action, to social welfare, to immigration policy. The
confluence of pressures from all sides has been baneful.
The Left belittles the Miami elites with ignorant indulgence and
reckless acceptance of simplistic race-class stereotypes while slighting
legitimate demands for political pluralism and personal liberty on the
island, thereby confirming and cementing diasporic fears that only the
Right will help in the vindication of these basic human rights—of course,
in exchange for the Miami elites’ support of the Right agenda more
generally.57 Rather than extend to the Miami elites a principled reason to
55. For one example, see SIMONS, supra note 10, at 33-34 (acknowledging, albeit grudgingly
but immediately exculpating the repression of human rights in Cuba by Havana’s elites).
56. For one example, see HOWARD HUNT, GIVE US THIS DAY (1973) (giving a personal
account of his involvement in CIA Cuba-related activities by the Watergate burglars).
57. An apt example is the cultivation of Cuban voters by right-wing Republicans since
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align with progressives and people of color in this country’s raging culture
wars, the Left has provided many reasons for the Miami elites’ (ultimately
misguided) alliance with the Right.58 Moreover, the Left’s internalization
of its own dichotomous stereotypes about Cuba and Cubans has caused it
to overlook the existence and significance specifically of diasporic Cubans
who seek to transcend the internal and international politics of divide-anddestroy pursued relentlessly both from Miami and Havana. The
longstanding “progressive” essentialization and demonization of the
Miami elites in racial and class terms, coupled with the absurd valorization
of the Havana elites in political terms, thereby helps to generate and
sustain a general sociolegal climate within the United States that solidifies
the Miami elites’ Rightist “domestic” tilt. This, in turn, helps to undermine
intra-Latina/o solidarity and truncate coalitional possibilities among people
of color, in myriad equality struggles that remain significantly affected by
this (mis)alignment of social groups and interests in the inter/national
politics of the United States.
Contemporaneously, the Right’s essentialization and valorization of the
Miami elites as a hard-working “model minority” led by courageous
freedom fighters, coupled with the reductionist demonization of the
Havana elites as merely typical tyrants, complements this farcical yet
serious state of affairs. It is no coincidence, after all, to find Jesse Helms
and his ilk squarely in the Miami elites’ ideological corner.59 Thus, from
both the Left and the Right, Miami’s (and Havana’s) elites receive external
aid and comfort that effectively undercut antisubordination struggles in
this country (and beyond it—including on the island itself). While the
resulting domestic divisions that alienate Cubans and Cuban Americans
from Latinas/os and other people of color in this country may make sense
from the selfish and ideological perspective of the Right, it is sheer folly
to do so from the principled and progressive perspective of the Left. In
both cases, however, it wreaks human havoc and is wrong.
Not surprisingly, the ripple effects of the Left’s and Right’s
interventions in this tragedy have had the same or similar effects in Cuba.
The Right’s romance with Miami and disdain of Havana have helped to
engineer the embargo that today provides the Havana elites with a handy
pretext to disclaim responsibility for every failure or brutality that they
Ronald Reagan decided to target the Cuban vote as the only “minority” camp vulnerable to
Republican blandishments. See generally William Schneider, Elian Gonzalez Defeated Al Gore,
33 NAT’L J. 1274 (2001).
58. Whether “cause” or “effect,” the Miami Cuban community generally is described as
“conservative,” especially when compared to other Latina/o communities. See, e.g., Mark Falcoff
& Elliot Abrams, The Other Cuba, 47 NAT’L REV. 34 (1995). See generally Gerald P. Lopez,
Symposium, Learning About Latinos, 19 UCLA CHICANO-LATINO L. REV. 363 (1999).
59. See TORRES, supra note 5, at 144-47 (discussing the effects of the American right).
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perpetrate, and which makes credible to some “observers” the lame
excuses offered by Havana elites for their stubborn, decades-long
suppression of political diversity on the island.60 Over time and into the
present, the Right’s promotion of measures to leverage and tighten the
embargo has helped to enable the Havana elites’ concoction of a paranoid
siege mentality on the island that has provided the chief excuse for their
unending infliction of dictatorship.61 While the Right decidedly bears
partial responsibility for the misery and suffering they have licensed on the
island, the Left’s romance with Havana also has provided the trappings of
credibility for the Havana elites’ blatant tyranny. The Left’s willingness
to justify unabashed oppression as an operational necessity of a revolution
long ago dead has made it complicit in the Havana elites’ systematic and
barbaric mistreatment of Cubans on the island seeking only to claim,
secure, and enjoy basic rights and options similar to those that progressives
regularly demand for themselves as well as for “subordinated groups”
around the globe. Thus, both from the Left and the Right, Havana’s elites
have been encouraged politically and pressured structurally to
compromise, and effectively to abandon, the progressive agendas they
mapped for their revolution four decades ago.
In sum, the Left’s romance with Havana and disdain for Miami have
produced the same net effect here as the Right’s romance with Miami and
disdain for Havana have produced over there: the Right’s partisan
promotion of the Miami elites’ agenda nonetheless has allowed the Havana
elites to exacerbate and exploit the fears and concerns of Cubans on the
island as a means of maintaining their corrupt control, while the Left’s
partisan promotion of the Havana elites’ agenda ironically has allowed the
Miami elites to excite and exaggerate diasporic fervor and fanaticism. In
both cases, the Right and the Left have incited and consolidated the elites’
60. See id.
61. See Georgie Anne Geyer, Ending the Cuban Embargo Would Perpetuate Castro’s
Totalitarian Control, CHI. TRIB., July 7, 2000, at N15; see also Holger Jensen, After Four Decades,
Has Embargo Against Cuba Worked?, CAPITOL HILL BLUE, Mar. 13, 2001; AMERICAN
ASSOCIATION FOR WORLD HEALTH, “DENIAL OF FOOD AND MEDICINE: THE IMPACT OF THE U.S.
E MBARGO ON H EALTH AND NUTRITION IN CUBA,” March 1997, available at
http://www.CubaSolidarity.net/ aawh.html; U.S. Department of State: Washington File, Text: Bush
Announces Strengthening of Measures Dealing with Cuba (July 13, 2001), available at
http://www.usinfo.state.gov/regional/ar/us-cuba/bush13.htm; James Cox, U.S. ponders more
aggressive Cuba policy if Helms-Burton law is invoked, lawsuits, troubles with trading partners
could increase rapidly, USA TODAY, Apr. 18, 2001, at 3B; U.S. Department of State: Washington
File, Powell says Cuban Sanctions Should Remain in Place (Mar. 15, 2001), available at
http://www.usinfo.state.gov/regional/ar/us-cuba/powell15.htm; U.S. Department of State:
Washington File, U.S. Ambassador Cunningham Remarks on Cuba Embargo at U.N. (Nov. 9,
2000), available at http://www.usinfo.state.gov/ regional/ar/us-cuba/cuba9.htm; Deborah Kalb, 3
Cuban-American lawmakers stand firm against loosening embargo on Cuba, GANNETT NEWS
SERVICE, Mar. 13, 1998.
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worst fears and regressive political tendencies, simultaneously enhancing
both camps’ moral and material resources to wage, year after year, decade
after decade, their unjust war against each other and most importantly, at
the expense of the Cuban people’s human rights and historical aspirations.
The net effect of these interventions, both over here and over there, is to
reinforce rigidity, license impunity, and inflame conflict. It is way past
time to recognize that both kinds of essentialization, valorization, and
demonization are false, exploitative, and destructive.
D. Time and Imagination: Toward the Denied
Despite the patent falsity of the dichotomy that island and diasporic
elites have co-created and propped up since 1959, their ruthless tactics
have helped them both to establish and enjoy their social, legal, economic,
and political prerogatives over their respective preserves. They have
accumulated and marshaled tremendous resources of all kinds, which they
now activate and orchestrate to wage their respective parts of this global
public relations campaign. Through their respective resources and
positioning they have occupied center-stage in public discourse, centering
themselves in the public eye as (re)presenting “Cuba” and “Cubans.”
Through their resources, and because of their converging interests in
stalemate, they opportunistically have co-produced suspenseful displays
of life and death, of law and society, and of politics and passion, that from
time to time have entertained and riveted the world. The Bay of Pigs in
1961, the Pedro Pan Airlift of the 1960s, the Freedom Flights of the 1970s,
the Mariel Exodus of 1980, the Venceremos Brigades, Fidel’s fantastical
orations at the Plaza de la Revolucion, the Brothers-to-the-Rescue
dogfights and shootdowns, the Elian immigration controversy of 19992000: these inter/national moments of Cuban struggle present but a few of
the instances that constitute this long-running, high-ratings coproduction
of Havana’s and Miami’s elites.62 Through these opportunities for
theatrics, both camps and their political allies in the United States and
internationally, slowly but surely have choreographed skewed perceptions
that they have hoped, as they still do, eventually will yield favored
realities. The high drama and visibility accorded to these bipolar elites and
their skirmishes have ingrained their images as the dualistic parameters of
national choice in the imagination of Cubans here and there, as well as
among the inter/national public more generally. Today, Cuba and Cubans
effectively are pushed to choose between these two “communities” and
their structures of oppression as all-or-nothing alternatives frozen in time.
62. For a good overview and analysis of this period, see FELIX ROBERTO MASUD-PILOTO,
WITH OPEN ARMS: CUBAN MIGRATION TO THE UNITED STATES (1988).
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The push remains powerful, but time stands still for no one and
nothing. While today’s elites were consolidating their power and positions,
Cuba and Cubans caught in the riptides of their bipolar extremes also have
dared to resist and reject both. They—we—have dared to imagine
possibilities denied both from here and there.
Indeed, Cuba and Cubans never have limited our visions of the possible
to the options offered by these two camps: from the inception of today’s
bipolar paradigm, Cubans have dared to imagine a future plagued neither
by political oppression nor by economic exploitation—I know so because
it was precisely this capacity for imagination, and yearning to make it real,
that caused my father both to support Fidelismo initially and to flee its
tightening grip as a political and economic refugee just a few years later.
I have learned since then that his example, while personal to me, was
neither unique nor rare in the early days of Fidelismo—nor now.63 Yet, the
vision harbored by my father and others like him has been overshadowed
during these years, as the elites of Havana and Miami entrenched
themselves and eliminated systematically the immediate visibility or
viability of any intermediate approach to the project of building a Cuba
that, for the first time in Cuban history, would repudiate substantively the
traditional stratification of Cuban society and combat proactively the
perpetuation of post/neo-colonial subordination under
Euroheteropatriarchy.64
In so doing, these elites effectively have collaborated on a project in
which both are fundamentally invested: the denial of the possibilities,
imagined by persons like my father, that evoke the ideals imagined by the
earlier revolutionaries in Cuba—those who fought to tear away Spain’s
imperial yoke and to replace it with an egalitarian society, and those who
even later sought to conclude Cuba’s historic waves of uprisings with the
establishment of the 1940 Constitution.65 In their joint project to deny this
possibility, Havana’s elites long have imprisoned anyone who sought
seriously to articulate a vision of Cuba in which everyday people enjoyed
personal and political freedoms as part of the project of building a
postcolonial nation-state, while Miami elites long have harassed anyone
who sought seriously to pursue social justice rather than gross economic
enrichment as the endgoal of the nation-state.66 Both elites intolerantly
have labeled as “enemy” and targeted for vicious attacks anyone who has
sought to delineate a vision in which all three generations of human rights
63. See FAGEN ET AL., supra note 15, at 62-97.
64. In some ways, this would vindicate the original revolutions against Spain, which were
fought in the name of egalitarian reforms. See generally LEONARD, supra note 17, at 81-83, 153-54;
SIMONS, supra note 10, at 157-59.
65. See CARLOS M. PIEDRA Y PIEDRA, LA CONSTITUCION Y EL TRIBUNAL SUPREMO (1943).
66. See, e.g., supra notes 36 and 37 on the use of political violence in Miami.
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would be respected not only formally, but also in fact. Both on the island
and throughout the diaspora, ideologically opposed elites insist selfrighteously, but increasingly unconvincingly, that either Cuba and Cubans
go their way or no way. The selfish interests of both elites have converged,
perversely, in the joint construction and maintenance of today’s conflicted
and polarized status quo, a scenario that protects little else than the two
elites’ own creature comforts and their status systems and symbols.
But, in this, their sole collaborative project, the two elites have failed,
and it remains only for time to confirm their joint and ultimate failure. The
elites on both sides of the Florida Straits have failed because they have not
been able to erase the vision of, or still the yearning for, social justice and
personal liberty, both on the island and throughout the diaspora. Both on
the island and throughout the diaspora, Cubans are working toward
principled yet aspirational projects, awaiting and inviting the day in which
the joint project of today’s dominant elites will crumble of its own weight.
And for this reason, the self-serving fantasies and politics of both sets of
elites are doomed. Neither time nor knowledge favors them: though both
elites have managed to suppress or occlude the manifestation of these
visions and yearnings, dissidents on both sides of the Straits continue to
show us that repression from both sides has succeeded in neither.
On the island, for instance, a group called “La Patria Es de Todos
Cubanos” (The Whole Land Belongs to All Cubans) only recently issued
a manifesto that rejects the “deal” imposed by Fidelismo, insisting instead
that Cuba and Cubans need not forsake—should not and cannot
forsake—political pluralism and individual agency in exchange for social
and economic justice.67 They insist, instead, on a national pursuit both of
social justice and political freedom. And these dissidents clearly are not
alone.68 In refusing submission, these and other dissenters have incurred
67. See The Homeland Belongs to Us All, CUBANET NEWS, Aug. 1, 2001. See also supra
notes 17, 18, 25, and 35 on political control and dissidence under Fidel’s government.
68. A prime example of another dissident movement is the Varela Project, which collected
a sufficient number of petitions calling for democratic decentralization of power in claimed
satisfaction of the Cuban Constitution’s procedure for presenting petitions to the government for
legislative consideration. The Varela Project gained attention when Jimmy Carter mentioned it
during his visit to the island in 2002; previously, the government had suppressed news of the
dissidents’ petition drive. See Cubans Want to Know Text of Varela Project, supra note 48
(describing the Varela Project and Carter’s visit). In a response that effectively serves as a
caricature of the Havana elites, the government promptly reported that 99% of the entire
population—over eight million people—had turned out to vote on a counter petition proposed by
the political machines of Havana’s elites. This turnout was described as “spontaneous” despite the
government’s public orchestration of this spectacle. And in a coincidence that might be described
as miraculous, all eight million Cubans voted the same way: as their elites had proposed, the
island’s masses agreed that the status quo should be declared “untouchable” as a matter of formal
law. See Vanessa Bauza, Cuba’s Pro-Socialist Petition Drive Steamrolls Varela Project, ORLANDO
SENTINEL, June 24, 2002, at A11. Within a week, in a move reminiscent of corrupt rulers enacting
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personally the wrath of Havana’s elites and their apparati of brute
oppression.69
In Miami, in similar fashion, a new generation of Cubans and Cuban
Americans has begun to emerge, and to dissent from the orthodoxies of the
local elites.70 This generation comprises Cuban children who, like me,
arrived in the diaspora while very young, as well as Cuban Americans
born in the diaspora after their parent’s flight from the island; like our
counterparts on the island, we view the politics and trajectories of “being
Cuban” from a broader and more critical perspective, and we decidedly do
not see ourselves—or our nation—as necessarily invested in the outcome
of the Cold War still being waged from Havana and Miami. As our island
counterparts, this new generation does not envision human rights and
social policy as a zero-sum game, in which we are forced to elect between
some rights and forego other freedoms—or to buy into an Orwellian
mindset where rights and violations are transposed by fiat.71 We do not
see, and affirmatively reject, the proposition that humans are unable to
pursue, simultaneously and as a nation-state, all three generations of
human rights in authentic and concrete terms. As in Cuba, this
nonconformance to prevailing orthodoxies instigates their repressive
retaliations, ranging from social exclusion and public vilification to
personal denigration and physical intimidation. On both sides of the
Florida Straits, the dominant elites do their best to keep a tight lid on
things, using whatever means of power they can grab at the moment.
This assessment is neither facile nor partisan. In naming the fate of this
perverse strategic collaboration I do not seek to invoke simplistic notions
of Fidel’s death or fall followed by a quick and happy return to a false
desperate measures in the shadow of their reign’s imminent end, the national Assembly had duly
amended the Constitution’s text to formally declare the current elites’ status perpetually
“irrevocable.” See Vanessa Bauza, Government Responds to Varela Project with Show of Unity,
ORLANDO SENTINEL, July 1, 2002, at A11. This response, however, has not stifled dissent; on the
contrary, dissident groups continue to proliferate despite the “unity” and apparent unanimity
claimed by the Havana elites. See Vanessa Bauza, New Opposition Document Comes Soon After
Varela Project, ORLANDO SENTINEL, Aug. 26, 2002, at A13.
69. See The Right to Dissent Nonexsitent in Cuba, MIAMI HERALD, Mar. 22, 1999, at 20A;
Anita Snow, With tough sentences, Cuban attacks dissent, BOSTON GLOBE, Mar. 16, 1999, at A15;
Juan O. Tamayo, Cuba Takes Aim at Dissent, Crime Legislation Casts a Wide Net, MIAMI HERALD,
Feb. 16, 1999, at 1A; Juan O. Tamayo, Crackdown on Dissent Raises Questions About Castro’s
Motives, MIAMI HERALD, Feb. 19, 1999, at 16A. See also supra notes 17, 18, 25, and 35 on tyranny
in Cuba.
70. See Anne Moncreiff Arrarte, The quiet rise of the ‘yucas’ in America, 106 U.S. NEWS &
WORLD REP. 41 (1989); Constable, supra note 36; LEONARD, supra note 17, at 88. See also supra
note 25 on generational shifts within CANF.
71. One relevant indicant of this “new generation” is the participation of Cuban and CubanAmerican scholars in LatCrit Theory. See, e.g., Berta Esperanza Hernández-Truyol, On Becoming
the Other: Cubans, Castro and Elian—LatCritical Analysis, 78 DENV. U.L. REV. 687 (2001).
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halcyon. The future of Cuba and Cubans is bound to be complex and
volatile—and both elites are striving mightily to make sure it is so. On the
one hand, Miami’s elites busy themselves with new charters and model
codes to effectuate their version of a transition to a conventionally
capitalist democracy—having been dispossessed in both political and
material terms, they seek a return on both levels and on their terms, as if
time had stood still, or could be rolled back.72 On the other hand, Havana’s
elites brace themselves for the day when they no longer can depend on the
mystique of their supreme leader to buttress the hierarchies that privilege
them—having long ago abandoned the principles of their revolution to
real-world pressures and self-interested agendas, this mystique and its
strategic activation, backed up of course by ever-efficient policing, are key
to holding their morally and fiscally bankrupt regime together. In some
respects, Havana’s elites must be fearing the inexorable passage of time
most of all.73 Both camps, seeking to use time to their advantage, now are
working feverishly to retain, and perhaps expand, their positions of status
and accumulations of wealth as they prepare for the inevitable death of the
man who has engineered so much of this tension and tragedy.
However, I also do not seek with this forecast to validate the equally
simplistic notion that Fidel’s inevitable date with mortality will leave his
cultist orthodoxy and its apparati of social control substantially unaffected.
Removing Fidel from the equation can make all the difference in the
worlds of the island and the diaspora. Fidel, like other original leaders,
commands a unique veneration and obedience within the island because
of his unique role in the history of the rise to power of Havana’s dominant
elites and their installation in government. Because of this history and
positionality, Fidel’s words do carry a unique force on the island—for
better or worse.74 But Fidelismo has been internalized by many Cubans
throughout the island over the years, and as an ideology it does have a
certain substantive coherence: while it cannot justify his cultist
dictatorship, Fidel’s critique of neoliberal corporate globalization is
cogent, and it can serve as an insightful contribution to antisubordination
72. See generally Ian Ball, US Forces on Standby for Castro’s Death, SUNDAY TEL., July 15,
2001, at 29; Dana Canedy, On Land and Sea, Florida Plans for Turmoil After Castro’s Death, N.Y.
TIMES, July 2, 2001, at A1. See also LEONARD, supra note 17, at 87.
73. This point was driven home recently, when Fidel fainted during one of his multi-hour
harangues, drawing attention to the unease on the island and among its rulers over the fate of their
jefe. See Reuters, Castro Wilts under the Sun, N.Y. TIMES, June 24, 2001, § 1, at 6; Vanessa Bauza,
Castro’s Fainting Spell Stirs Speculation About Cuba’s Course, Next Leader, CHI. TRIB., June 25,
2001, at 3; Charles Piggott, What if Castro Died?, 12 WORLD LINK 112 (1999), available at
http://www.backissues.worldlink. co.uk.articles/101199171232.htm.
74. See LEONARD, supra note 17, at 88; Envision Cuba Without Castro, CHI. TRIB., July 25,
2001, at 18.
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discourse and inter/national policymaking.75 Thus, Fidel’s unavoidable
demise is unlikely to mean the automatic dissolution of Cuba’s
governmental infrastructure and disappearance of its reigning ideology,
but it does close a singular chapter in the continuing history of Cuba and
Cubans—a chapter that, given the mutual intransigence of Havana’s and
Miami’s elites, apparently cannot be concluded until then. After that point,
I hope, believe, and trust that the following chapters of this continuing
story will be written, in part, by Cubans on the island and Cubans in the
diaspora, both equally and mutually devoted to Cuban reconciliation on
egalitarian, antisubordination, and anti-essentialist principles.
E. Broken Promises and Bottom Lines: Human Rights,
Cuban Rights
Cuba and Cubans face a Hobson’s choice, and both “alternatives” look
alike—literally, and demographically. Moreover, both demand abject
subordination in social, economic, and political terms to self-anointed
elites. Ultimately, both “choices” are fundamentally flawed in common yet
different ways: both promise to Cuba and Cubans the vindication of
important human rights for the forfeiture of others. Neither promises a
post-subordination society.
In some key respects, this Hobson’s choice conceptually reflects the
structure of human rights as they generally have been conceived and
organized internationally during the second half of the Twentieth
Century—roughly the same period of time during which Havana and
Miami have erected themselves as the mirror images through which Cuba
and Cubans are gazed. During this time, international covenants have
recognized “three generations” of human rights: (1) “civil and political”
rights that, like due process, freedom of conscience, and freedom of
association, generally require governments to refrain from interfering with
an individual’s right to participate in civil society or the political process;
(2) “economic, social, and cultural” rights that seek to secure the elemental
components of basic individual well-being and development, such as
access to food, housing, education, health care, employment, and
participation in the cultural life of the community; and (3) “solidarity and
self-determination” rights, which focus on the collective needs of
individuals as groups and that include principally the right of a people to
choose their own government and, additionally, rights to development,
peace, and a healthy environment.76 Their precise contents of course
75. See supra note 13 on Fidel’s political critique of global power arrangements.
76. See Natsu Taylor Saito, Beyond Civil Rights: Considering “Third Generation”
International Human Rights Law in the United States, 28 U. MIAMI INTER-AM. L. REV. 387 (1997).
See also Elizabeth M. Iglesias, Foreword—International Law, Human Rights and LatCrit Theory,
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311
remain indeterminate and contested, and to a large extent these rights are
honored globally mostly in the breach.77 Nevertheless, these rights are
conceived as “indivisible” and “interdependent”—they not only are not
susceptible to a cherry-picking approach but they positively depend
mutually on each other for their social efficacy.78 This general framework
thus provides a ready point of departure for a critical and comparative
assessment of the Cuba promised to Cubans both by Havana’s and
Miami’s Cuban elites.79
When we step back from the rhetoric of self-justification that envelopes
the thinking of both camps’ adherents, we can begin to see how island
elites effectively demand that Cuba and Cubans forsake “first generation”
human rights in exchange for “second generation” human rights while
diasporic elites demand the exact opposite. Neither is overtly cognizant of,
nor overly friendly to, third generation group rights—especially those
relating to the right of self-determination. Indeed, the totalitarian and
authoritarian Cuban regimes in Havana and Miami violate in spirit and in
fact the right of the Cuban people to self-determination as a nation, for
neither set of elites has shown any serious disposition to let Cuba or
Cubans get them out of power and off our backs.
In this scheme, Havana’s elites continue pointing to their health and
education initiatives, as if bringing better health and expanded awareness
to people—a laudable accomplishment—could substitute for, be
reconciled with, or justify the simultaneous denial of a people’s right or
ability to employ that health and awareness for personally chosen rather
than bureaucratically dictated endeavors or projects. Havana’s elites, in
effect, boast of their selectively displayed commitment to a more educated
and healthy population as if such a population then could not be trusted to
28 U. MIAMI INTER-AM. L. REV. 177 (1997); Berta Esperanza Hernández–Truyol, Building Bridges:
Bringing International Human Rights Home, 9 LA RAZA L.J. 69 (1996). See generally
INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS (Henry J. Steiner & Philip
Alston eds., 1996).
77. See generally Bureau of Democracy, Human Rights, and Labor, U.S. Department of
State, 1999 Country Reports on Human Rights Practices 6-7 (2000), available at
http://www.state.gov.www/global/human-rights/1999.hrp.report/99hrp.toc.html.
78. See supra note 76 on international law and human rights.
79. Of course, the human rights framework is not the only—perhaps not even the
best—template to use in deconstructing—and escaping—the dead-end view each camp has of the
other, and that both foist on Cuba and Cubans. This formal, imperfect template cannot capture
every nuance relating to Cuba and Cubans—nor do I seek to do so in this Essay. Rather, the human
rights framework serves here, simply, as one useful lens through which we might access in
relatively concrete terms the possibility of another, or alternative, way toward the reconciliation
of Cubans and the reconstruction of Cuba on positively egalitarian, antisubordination principles.
In this Essay, I use the human rights template only as an example that partially illustrates how and
why the two doctrinaire visions of Cuba pushed by the two sets of dominant elites are substantively
wanting—and fatally so.
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manage its own affairs in a politically plural and economically
decentralized social order. Miami’s elites, meanwhile, rely on neoliberal
capitalist platitudes about “hard work” and “opportunity” to justify
structural neglect of poverty and related social ills, including lack of
proper education and health care based on economic class, as if political
or expressive “freedom” could cure or comfort the sick and starving.
Miami’s elites, in effect, have been content to go along with the
quintessentially elitist blame-game that pities the poor but finds the cause
for their lot in their own individual failures—after all, “they” like “us” are
“free” to “work hard” and “get ahead” in this “land of opportunity.” Cuba
and Cubans thus are under coercive pressure from both elites to relinquish,
indeed to renounce and forget about, basic rights that international
agreements recognize and promise to all humans. While this nutshell
description necessarily oversimplifies, it also captures a fundamental
aspect of the current stalemate between Havana’s and Miami’s vision of
Cuba: both visions explicitly compromise the indivisibility of human
rights and, as applied, both visions also methodically subvert their
interdependence. The Hobson’s choice offered by both elites is distilled to
social justice versus personal freedom, but never both.
Nonetheless, both camps indeed do proffer compelling goals and
values. Both camps exude not only fear and insecurity, but also idealistic
aspirations. And no intellectually honest reason exists for denying it. No
good reason exists to deny or denigrate either the incisiveness of Fidel’s
anti-capitalist analysis in the pursuit of international social justice or the
importance of the exiles’ insistence on political freedom as a fundamental
condition of post-subordination society.80 But neither Fidel’s social justice
insights nor the exiles’ focus on personal and political freedom can justify
their subordinationist transgressions “at home”: on Fidel’s part, this
objection includes the brutal oppression of dissenting voices and systemic
acquiescence to Euroheteropatriarchy, and on the exiles’ part, it includes
their ready acceptance of “free enterprise” gospels to justify similarly
Euroheteropatriarchal structures, precepts, or legacies. In this stalemated
scheme, each set of elites offers to Cuba and Cubans something
compelling, but both attach unconscionable—and unacceptable—strings:
both camps adamantly insist that the vindication of preferred rights must
mean the formal and actual surrender—even wholesale violation—of other
human rights; or, in the alternative, they demand from us an Orwellian
pretension that violations are rights, and that lies are truths.
This stalemated scheme neither concedes, tolerates, nor wishes Cuba
and Cubans to imagine the possibility of a social and legal order in which
80. For an excellent example, see Berta Esperanza Hernández-Truyol, Out in Left Field:
Cuba’s Post-Cold War Strikeout, 18 FORDHAM INT’L L.J. 15 (1994).
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Cuba and Cubans forsake no human rights but secure and protect them
equally for all. Showing themselves decidedly more interested in selfpreservation than in national reconciliation, both camps righteously
continue to sow the seeds of enduring suspicion and discord on both sides
of the Florida Straits among Cubans already conditioned (poisoned?) by
both sides’ extended bombardment of hypocritical misinformation and
hyperbolic invective. In the tradition of the “Big Lie,” both have
collaborated in the perpetration of a massive and fanatical campaign to
make us and the world believe that their self-interested versions of Cuba
and Cubans really comprise the only, or best, options toward a
postcolonial, post-subordination reconstruction of Cuban society. While
both pontificate about the benefits they offer, their aim is to consolidate
power and privilege by selling to the Cuban nation an incomplete bill of
human rights as Cuban rights.
F. Reconciliation and Reconstruction: Five LatCrit Exhortations
Many moons may pass before reconciliation and reconstruction come
to pass, but pass they shall. Human mortality, and the enduring limits of
medical magic, ensure it. The challenge for those of us who seek to pursue
a post-subordination order in Cuba is to avoid until then a firm
identification with, or internalization of, the inflammatory propaganda
generated from either camp or its followers. The challenge is to sift
through the records, ideals, and limits of each to learn from both, and to be
duped by the seductions of neither. The challenge is to distinguish the
“good” from the “bad” in both instances—and toward a combination of
both—and more that could provide a principled sociolegal transformation
toward Cuba’s progressive emancipation from all forms of oppression. The
challenge is to lay a solid foundation for the work that will make it
possible for Cuba and Cubans to chart a consensual path toward social
justice and political pluralism once the circumstances permit it, a path cut
by antisubordination principles rather than by the selfish imperatives of
one established elite or another. In this spirit, I conclude with five basic
points offered here as LatCrit exhortations:
1. Stay Independent of the Prevalent Bipolarities and Their
Politics of Oppression. This first point, obviously, restates the
above admonition and provides a basic threshold toward
reconciliation and reconstruction. This admonition bears
exhortation because it is crucial as a method: without a
conscious and conscientious commitment to this
independence, we simply cannot sustain our capacity to
imagine and pursue the possibilities—to imagine and pursue
a post-subordination vision that transcends the limitations
imposed by the bents of Havana’s and Miami’s elites.
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Without independence of viewpoint, we progressively
compromise our ability to attain and sustain a critical (and
self-critical) stance toward the postures and emissions of both
bipolar elites—a stance that is necessary to deconstructing the
status quo as a first step toward imagining a reconstructed
social order.
2. Insist on Critical (and Self-Critical) Approaches to Cuban
Reconciliation and Reconstruction. The second point flows
from the first, and it also relates to method. Rather than
envelop ourselves in sentimental romanticisms about either
of the bipolar narratives of Cuban histories and hopes, we
must insist instead on critical (and self-critical) analysis of
power relations, and of the antisubordination ramifications of
actions and policies undertaken both in Havana and in Miami
(as well as elsewhere). Sentimentalism—fawning over either
set of elites or indulging our idiosyncratic (pre)dispositions
toward them—most likely will impair deconstructive, as well
as reconstructive, analysis and praxis, and thus inhibit our
capacity for envisioning, as capaciously as possible, the
design of a post-subordination, postcolonial era in Cuba.
Without a genuine commitment to criticality and
independence, we cannot hope to pierce through the powerful
and entrenched cosmologies that have been concocted and
enacted on both sides of the Florida Straits so assiduously
since 1959.
3. Frame Reconciliation and Reconstruction Around
Egalitarian Vindication of the “Three Generations” of
Human Rights. This point relies on the broad assortment of
international convenants, and their ultimate human rights
aspirations, as a general—even partial—but nonetheless
substantive source for the development of a postcolonial,
post-subordination social and legal order in Cuba. While
patently limited and breached routinely worldwide, this
formal international human rights model repudiates as a
substantive matter key demands of both elites: that the Cuban
people effectively and formally abandon the hope and pursuit
of a national community dedicated in principle, as well as in
fact, to all three of the rights “generations” conceived thus far
by humanity. This third LatCrit exhortation instead affirms
the global notion that all human rights are “interdependent”
and “indivisible” and asserts that a principled and actual
vindication of all human rights for all humans is the only path
toward a post-subordination, postcolonial Cuba. And because
it provides an approach to reconstruction that is independent
of either elites’ ideological delimitations, this international
rights framework also helps to provide a substantive anchor
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2003]
for the first point—this third exhortation, in other words,
shifts from method to substance, and does not preclude in any
way the use of other substantive sources for the design of
Cuban reconciliation and reconstruction along antisubordinationist lines. Substantively, then, this third
exhortation points to a forthright rejection of both elites and
their agendas; an egalitarian vindication of human rights visá-vis Cuba and Cubans calls for the elimination both of the
embargo and of Fidel’s monopoly on social, economic, and
political life in the island. This point beckons Cuba and
Cubans to take a substantively independent approach toward
national reconciliation and reconstruction based on
international sources and developments that transcend the
Miami-Havana scripts for our common future.
4. Commit to the Project of Reconciliation and
Reconstruction and to the Proactive Social and Legal
Dismantling of Euroheteropatriarchy. The fourth exhortation
takes the substantive commitment of egalitarian
reconciliation and reconstruction further, calling for a specific
commitment to the dismantlement of a particular sociolegal
ideology, which has been and continues to be hegemonic in
Cuban society and culture. While the national reconciliation
project beneficially may be framed, at least partially, around
the three generations of human rights as a general and
independent grounding, the project must be focused
specifically on the dismantlement of Euroheteropatriarchy
because the structures, imperatives, and agents of this
particular ideology are, in Cuba and among Cubans, key and
pervasive sources of subordination that systematically deny
rights to nonconforming persons and projects while
systematically promoting conforming persons and projects.
Because this pernicious ideology still accounts for so much
of Havana’s and Miami’s sociolegal architecture, the antisubordination reconstruction of Cuba as a post-subordination
society requires us to focus consciously and explicitly on the
material dismantlement and social disablement of
Euroheteropatriarchy.
5. Demand Disgorgement of Unjust Riches and Reallocation
of Social Goods as Integral to Cuba’s Reconstruction as a
Post-subordination Society. This fifth and final exhortation
presents perhaps the most difficult hurdle, but it flows
directly from the prior four. This point recognizes a bottom
line learned from prior antisubordination experience: that
social justice, if it is to be more than a cynical platitude,
hinges on social transformation—even if orderly and
incremental. Transformation, in turn, denotes and requires an
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actual reallocation of social goods; transformation without
disgorgement and reallocation is but another “Big Lie.” The
disgorgement of unjust past gains, and the reallocation of
existing and future social goods, no doubt will entail a long
and arduous process of national dialogue as part of the
reconciliation project. These redistributive efforts also will
require creative negotiation of myriad interests and conflicts.
But without confronting the past and present maldistribution
of social goods and economic assets on the island as a
structural source of widespread misery, the resilient legacies
of Euroheteropatriarchal colonialism will continue to bedevil
Cuba and Cubans. The objective—and challenge—is to
ground our approach to and resolution of these issues in
egalitarian antisubordination principles and communitybuilding values. Though exceedingly difficult to accomplish
due to the perpetual problem of entrenched and reactionary
interests, this final LatCrit exhortation nonetheless is
indispensable to reconstructing Cuba as a post-subordination
society that repudiates in fact, rather than merely in words,
the enduring material and cultural manifestations of its
post/neo/colonial histories and legacies.
These five points obviously are not, and are not proffered here as, a
panacea. On the contrary, these exhortations serve only as a point of
departure for a reciprocal and open dialogue toward reconciliation and
reconstruction. As a set, they identify some difficult issues that, for some
time, may even be intractable—especially if the dominant elites continue
to have their way most of the time.
These five LatCrit exhortations recognize the daunting nature of the
enterprise and work, therefore, to root it in substantive social justice
commitments that usefully may help to inform the conception and
negotiation of reconciliation and reconstruction. Rather than posit a
nebulous ideal or ultimate fantasy, these points and exhortations can serve
as one antisubordinationist and anti-essentialist basis with which Cubans
collaboratively may begin to delineate an agenda for a “reunion” of the
island and the diaspora without structurally or ideologically preadvantaging any subset of “Cubans”—or the unilateral customs that may
have been instilled amongst us during this nearly half century of division
and divisiveness. Though susceptible to manipulation, these points and
exhortations can provide some common ground for a discourse of
reconciliation, and the project of reconstruction, among and between
Cubans there, here, and elsewhere around the globe. If pursued earnestly
and cooperatively, these points may yet provide a sturdy platform and
flexible framework for the development of a postcolonial society built on
substantive and principled antisubordination commitments rather than on
broken promises or selfish interests.
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II. CONCLUSION
My father is now ninety-one years old and declining steadily. Bemused
at having witnessed the dawn of a new millennium, my father knows that
he never will see his vision of a “free” Cuba materialize in his homeland.
But he and others like him, whether on the island, here, or elsewhere on
the globe, have planted seeds of principle and vision that continue to
flower and blossom. The future is not his, nor is it Fidel’s or his
adversaries’—it is, instead, ours: Cubans at the margins of this century’s
dichotomies, who are captive neither to Miami nor to Havana, and who
seek instead a principled alternative to both.
If ever you visit either of my two hometowns during this era of
diaspora and deadlock—and as you enjoy their local delights, including
their respective versions of Cuban cuisine and culture—look around you
for subtle signs of the histories and hopes sketched above, and you will see
them. In this way, you may begin to navigate for yourself the slivers of
unoccupied space that exist stubbornly between the bipolar narratives
urged upon you from Miami and Havana. In this way, and over time, you
may become able to help us—Cubans there and here—to navigate
successfully the treacherous shoals of contention and manipulation that
have co-enabled the elites here and there jointly to keep Cubans apart
while we remain a nation.
CLUSTER III
INTRODUCTION
Angela P. Harris
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
II.
RACE AND CRIMINAL PROCEDURE . . . . . . . . . . . . . . . . . . . . . . 324
III.
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337
I. INTRODUCTION
In this cluster, Alfredo Mirandé, Christopher Slobogin, and Kevin
Johnson provide a LatCrit view of the jurisprudence of criminal procedure.
Mirandé, examining recent Supreme Court decisions, argues that there is
convincing evidence that the Fourth Amendment proscription on
unreasonable searches and seizures has a “Mexican exception,”1 and
wonders “whether non-resident aliens have sufficient connection to the
United States to be considered one of ‘the people.’”2 Slobogin, examining
the same set of cases as Mirandé, suggests that the decisions better support
the existence of an “illegal alien”3 exception rather than an exception
specific to Mexicans.4 Slobogin then speculates that another—perhaps the
most likely—impetus for the Court’s criminal procedure jurisprudence is
a tone-deafness to the hardships of poverty.5 Finally, Kevin Johnson points
out the similarities between racial profiling in domestic law enforcement
and in immigration enforcement, and identifies the common interest that
Latinas/os and African Americans have in challenging these practices
despite the obstacles that stand in the way of a political alliance.6
Criminal procedure in the United States is a field so inextricably
intertwined with race that Charles Ogletree has described it as a branch of
American race law.7 Yet it differs markedly from antidiscrimination law,
1. Alfredo Mirandé, Is There a “Mexican Exception” to the Fourth Amendment, 55 FLA.
L. REV. 365 (2003).
2. Id.
3. Christopher Slobogin, The Poverty Exception to the Fourth Amendment, 55 FLA. L. REV.
391 (2003).
4. Id.
5. Id. at 392.
6. Kevin R. Johnson, The Case for African American and Latina/o Cooperation in
Challenging Racial Profiling in Law Enforcement, 55 FLA. L. REV. 341 (2003).
7. Gary Peller, Criminal Law, Race, and the Ideology of Bias: Transcending the Critical
Tools of the Sixties, 67 TUL. L. REV. 2231, 2245 (1993) (citing Charles Ogletree, Lecture at the
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that body of law that most explicitly addresses issues of race and racism.
Students of the law of antidiscrimination in employment, voting, and
education are familiar with the Supreme Court’s increasingly emphatic
pronouncements of the dangers of racial classification. We are told that
state racial classifications are inherently politically divisive and socially
damaging; that they create psychological trauma and lasting stigma; that
state racial classifications constitute racial discrimination in and of
themselves; and that explicitly race-based state action must always receive
the strictest judicial scrutiny.8 Racialization of the law, in short, is an
extremely dangerous thing.
The authors in this cluster all agree that the American criminal justice
system is dramatically racialized.9 The statistics are shocking and yet
utterly familiar. As Johnson notes, African Americans constitute more than
fifty percent of the population of prisons and jails in the United States,
despite the fact that they constitute only twelve percent of the population;
Latinas/os make up one-third of the prison populations in California and
New York, despite the fact that they constitute only twenty-seven and
thirteen percent of the population, respectively.10 Yet, in stark contrast to
American Association of Law Schools Annual Meeting (Jan. 1990)).
8. See, e.g., Shaw v. Reno, 509 U.S. 630, 643 (1993):
Classifications of citizens solely on the basis of race “are by their very nature
odious to a free people whose institutions are founded upon the doctrine of
equality,” . . . . They threaten to stigmatize individuals by reason of their
membership in a racial group and to incite racial hostility . . . . “[E]ven in the
pursuit of remedial objectives, an explicit policy of assignment by race may serve
to stimulate our society’s latent race consciousness, suggesting the utility and
propriety of basing decisions on a factor that ideally bears no relationship to an
individual’s worth or needs.”
Id. (citations omitted); see also Rice v. Cayetano, 528 U.S. 495, 515 (2000) (defining “‘racial
discrimination’ [as] that which singles out ‘identifiable classes of persons . . . solely because of their
ancestry or ethnic characteristics’”); Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 224 (1995)
(concluding the Court’s precedents establish that “any person, of whatever race, has the right to
demand that any governmental actor subject to the Constitution justify any racial classification
subjecting that person to unequal treatment under the strictest judicial scrutiny”).
9. See generally Mirandé, supra note 1; Slobogin, supra note 3; Johnson, supra note 6.
10. See Johnson, supra note 6, at 347 n.31 (citing statistics cited by Kenneth Nunn and
Margaret Montoya). As I write this Essay, a study by the Institute for Children, Youth and Families
at Michigan State University has found that Latino youths receive longer terms of incarceration
(and other harsher penalties) than White youths charged with the same offenses. See Latino Juvenile
Offenders Get Harsher Treatment, Study Finds, 32 CRIM. JUST. NEWSL. 13, 2 (2000):
For example, among youths with no prior admissions to state correctional
facilities, Latinos charged with violent offenses were more than five times as likely
as whites to be incarcerated, (as opposed to other . . . sanctions). Latinos charged
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321
the Court’s fears about race-consciousness in education, employment, and
voting, the Court has been reluctant to take seriously the possibility that
state action might be necessary to combat the extreme racialization of
American criminal justice.
Representative in this regard is the Court’s opinion in McCleskey v.
Kemp.11 In that case, the Court considered Eighth Amendment and
Fourteenth Amendment equal protection challenges to Georgia’s death
penalty statute.12 Warren McCleskey, a Black man sentenced to death for
the murder of a White police officer during the course of a robbery, sought
habeas corpus relief with the help of a sophisticated statistical study
conducted by Professor David Baldus and his colleagues.13 The study
revealed, among other things, that persons who murdered Whites were
statistically much more likely to be sentenced to death than were persons
who murdered Blacks, and that Black murderers were more likely to be
sentenced to death than White murderers.14 In its opinion, the Court
affirmed in no uncertain terms its commitment to eradicating racial
prejudice from the criminal justice system.15 Nevertheless, citing the
familiar antidiscrimination principle that racial discrimination must be
with property offenses were nearly [twice] as likely as whites to be
incarcerated . . . . [F]or drug offenses, the admission rate for Latinos was 13 times
the rate for white youths, [and] . . . the average term . . . was more than double that
of whites . . . .
Id. at 2-3. Overall, incarcerated Latino youths served an average of 305 days, compared to 193 days
for White youths, and Latino youths were found to be “incarcerated in adult jails and prisons at far
higher rates than white youths . . . rates two to three times higher in nine states, three to six times
higher in eight states, and seven to 17 times higher in four states.” Id. at 3.
11. 481 U.S. 279 (1987).
12. See id.
13. Id. at 283, 286-87.
14. See id. at 286. For example, Baldus and his colleagues found that, even after taking into
account thirty-nine nonracial variables, defendants charged with killing White victims were 4.3
times more likely to receive a death sentence than were other defendants. Id. at 287. The study also
found that prosecutors sought the death penalty in 70% of the cases involving Black defendants and
White victims; 15% of the cases involving Black defendants and Black victims; and 19% of the
cases involving White defendants and Black victims. Id. at 286-87.
15. See id. at 309-10:
Because of the risk that the factor of race may enter the criminal justice process,
we have engaged in “unceasing efforts” to eradicate racial prejudice from our
criminal justice system. Our efforts have been guided by our recognition that “the
inestimable privilege of trial by jury . . . is a vital principle, underlying the whole
administration of criminal justice.” Thus, it is the jury that is a criminal
defendant’s fundamental “protection of life and liberty against race or color
prejudice.”
Id. (citations omitted) (footnotes omitted).
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conscious and deliberate to violate the Equal Protection Clause, the Court
rejected McCleskey’s claim because he could not prove that the
prosecutors, the jury, or the Georgia Legislature had acted, in his particular
case, with a discriminatory purpose.16 Although the Court accepted Baldus’
statistical findings as accurate for purposes of deciding the claim, the Court
made equally clear that these findings, although shocking, did not
constitute proof of discriminatory purpose:17 “Because discretion is
essential to the criminal justice process, we would demand exceptionally
clear proof before we would infer that the discretion has been abused.”18
The Court expanded on this position in its Eighth Amendment discussion:
McCleskey’s argument that the Constitution condemns the
discretion allowed decisionmakers in the Georgia capital
sentencing system is antithetical to the fundamental role of
discretion in our criminal justice system. . . .
Where the discretion that is fundamental to our criminal
process is involved, we decline to assume that what is
unexplained is invidious.19
In their now-classic book, Racial Formation in the United States,20
Michael Omi and Howard Winant treat political activity as “the continuous
process of formation and superseding of unstable equilibria.”21 In this
view, “the state” is best understood not as a unity, but as an unruly field of
institutions and individual and collective entrepreneurs, pursuing various
16.
17.
18.
19.
at stake:
Id. at 298-99.
Id. at 297.
Id.
Id. at 311-13. In the last section of its opinion, the Court expressed its view on what was
McCleskey’s claim, taken to its logical conclusion, throws into serious question
the principles that underlie our entire criminal justice system. The Eighth
Amendment is not limited in application to capital punishment, but applies to all
penalties. Thus, if we accepted McCleskey’s claim that racial bias has
impermissibly tainted the capital sentencing decision, we could soon be faced with
similar claims as to other types of penalty. Moreover, the claim that his sentence
rests on the irrelevant factor of race easily could be extended to apply to claims
based on unexplained discrepancies that correlate to membership in other minority
groups, and even to gender.
Id. at 316-37 (citations omitted) (footnotes omitted). Justice Brennan, in his dissent, described this
concern, ironically, as a “fear of too much justice.” Id. at 339 (Brennan, J., dissenting).
20. MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM
THE 1960S TO THE 1990S (2d ed. 1994).
21. Id. at 84 (citing ANTONIO GRAMSCI, SELECTIONS FROM THE PRISON NOTEBOOKS 182
(Quentin Hoare & Geoffrey Nowell Smith eds., 1971)).
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material and ideological projects.22 Some of these projects conflict, and
some are consistent with one another; some projects gain strength over
time, while others diminish in their political support.23 At the same time,
Omi and Winant claim that in the United States, “the state is inherently
racial,”24 by which they mean that “[f]ar from intervening in racial
conflicts, the state is itself increasingly the preeminent site of racial
conflict.”25 Putting these insights together, they argue:
Every state institution is a racial institution, but not every
institution operates in the same way. In fact, the various state
institutions do not serve one coordinated racial objective; they
may work at cross-purposes. Therefore, race must be
understood as occupying varying degrees of centrality in
different state institutions and at different historical
moments.26
The law, I will argue, plays two important roles in the Constitution and
maintenance of state-centered racial projects. First, since legal rules are
central to the organization of all state action generally, and since race itself
is such a creature of the law in the United States, legal rules are central to
the Constitution and maintenance of racial projects with which state
institutions are involved. Second, legal doctrine and ideology serve a
jurisdictional function, making it possible for state racial projects that are
very different, perhaps even opposed to one another, to coexist.
Recent criminal procedure jurisprudence—the subject of this
Cluster—provides an example of these two functions of the law. While one
type of racialized state project—the social welfare state—has been under
recent attack, another racialized state project—the penal state—is on the
ascendancy. Both the social welfare state and the penal state interact with
various institutions of the capitalist state, which itself is complexly
racialized. Legal rules shape the meaning of race; the meaning of race, in
turn, affects the fortunes of various state projects.
Meanwhile, legal doctrine and legal ideology make it possible for
various state projects to coexist. Opinions like that of the majority in
McCleskey v. Kemp reconcile the egalitarian ideals of the social welfare
project with the racialist practices of the penal state. The jurisprudence of
the Fourth Amendment similarly allows both Mirandé’s “Mexican
Exception” and Slobogin’s race-neutrality to find a place in the law.
22.
23.
24.
25.
26.
Id. at 84-85.
Id. at 83.
Id. at 82.
Id.
Id. at 83.
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II. RACE AND CRIMINAL PROCEDURE
According to Alfredo Mirandé, “[t]he answer to the question of whether
there is a Mexican Exception to the Fourth Amendment is at once both
complex and at the same time remarkably simple.”27 The complex answer
has to do with the reasoning the Court has offered to explain its holdings.
As Mirandé notes:
While the [Supreme Court and other] courts have consistently
held that in principle Hispanic, or Mexican, appearance is not
sufficient to justify a stop, they have also held that Hispanic
appearance is one of several factors that may, in conjunction
with other articulable facts which, as in Terry, “taken together
with rational inferences from those facts, reasonably warrant
that intrusion.”28
Under current Fourth Amendment jurisprudence, the apparent race of a
suspect alone is not enough to support a stop, but race is a permissible
factor to be considered if it is one among many other factors. For Mirandé,
however, this principle must be understood in terms of how it is actually
applied by law enforcement:
The reality of course is that there is a Mexican Exception.
Mexican appearing persons are routinely stopped with
articulable facts that are consistent with law-abiding behavior
such as driving on a highway within 100 air miles of the
border, driving a late model sedan, wearing a cap, and driving
a car that appears to be weighed down, or has a number of
passengers in it.29
In addition, “either looking at the officers, or not looking at the officers,
may be interpreted as suspicious conduct.”30 If these “other factors” only
justify suspicion when combined with apparent Mexican ancestry, then the
suspect’s race is the controlling factor after all.
Christopher Slobogin challenges Mirandé’s assertion that there is a
Mexican Exception. Carefully examining Supreme Court opinions, he
argues that, with one exception,31 the cases better support an “illegal alien”
27. Mirandé, supra note 1, at 385.
28. Id.
29. Id. at 385-86.
30. Id. at 386.
31. Slobogin concedes that United States v. Martinez-Fuerte, 428 U.S. 543 (1976), seems
to support the existence of such an exception, but condemns the decision. Slobogin, supra note 3,
at 399.
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exception.32 As Slobogin points out, the Court has never limited its
analysis or holdings in such a way as to restrict its relaxed judicial review
to cases involving Mexicans.33 The mere fact that many of the case names
are Mexican does not suggest that other undocumented immigrants are
immune to prosecution, nor have any of the Justices suggested that
Mexican origin makes any difference to the analysis.
Whether Slobogin is really in disagreement with Mirandé, however, is
not clear. Mirandé’s argument may not be that the Supreme Court has
created a doctrinal, “law on the books” Mexican Exception, but rather that
the Supreme Court has created the rhetorical and practical space for law
enforcement officials to create their own “law in action” Mexican
Exception. If this is so, Slobogin’s analysis does not really contradict
Mirandé’s. Slobogin is concerned not with what the police and the INS
actually do, but with what the Supreme Court says can be done. On this
level, he is persuasive that the Court’s Fourth Amendment jurisprudence
supports a much broader underlying principle than a Mexican Exception.
Yet, as Slobogin concedes, at the Mexican border, phenotypical race is
relevant, perhaps central, to the project of identifying suspected
undocumented immigrants.34 Since it is the United States border with
Mexico, and not with Canada that is most politically charged and,
therefore, most intensively policed, the “illegal alien” exception and the
Mexican Exception are largely contiguous. One way, then, to think about
the seeming conflict between Mirandé and Slobogin is to think of it as the
difference between “law on the books” and “law on the ground.” Another
way is to see their conversation as reflecting the juxtaposition of two
different racialized projects of state power.
It would be surprising, indeed shocking, if there were a Mexican
Exception at the level of constitutional doctrine. Since Plessy v.
Ferguson,35 the Supreme Court has interpreted the Fourteenth Amendment
to require that the state act in a race-neutral manner. Moreover, Plessy’s
interpretation of the equality principle served as a legal foundation for the
American social welfare state, a loose set of institutions including not only
the components of the “social safety net” (unemployment insurance, Social
Security, AFDC), but also, in the wake of Brown v. Board of Education,36
a federal administrative apparatus that manages employment, education,
public family law, collects data, and issues statistics according to strict
rules set forth by the judiciary. These rules prohibit malignant raceconscious “state action” in an ever-widening number of arenas, while at the
32.
33.
34.
35.
36.
See id. at 392-99.
See id.
See id. at 398.
163 U.S. 537 (1896).
347 U.S. 483 (1954).
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same time keeping track of people by racial classification for the purpose
of administering antidiscrimination law. Even while the Court’s
understanding of race-consciousness gradually broadened and its
understanding of invidious state action narrowed, the Court was able, as in
Adarand Constructors, Inc. v. Peña,37 to insist that its Fourteenth
Amendment jurisprudence was unified by the suspect nature of state racial
classifications.38
Defenders of this racialized social welfare state have pointed out that
the ideal of equal citizenship has permitted an ever widening group of
those formerly excluded from national citizenship to claim legal, political,
and social rights.39 Leftist critics of this project have condemned the
project’s focus on the individual and its failure to recognize the ways in
which the values and privileges of elites are taken as the standard for those
later to be “included.”40 Nevertheless, the liberal project remains home
base for most lawyers concerned with racial justice. Indeed, in some ways
liberal legalism is synonymous both with “the state” (as contrasted to “the
market”) and with “the rule of law” itself. Liberal legalism is also
inextricably interwined with a mode of governance that gives legal
professionals, social science professionals, and other “experts,” great
authority and influence in the making of government policy. Austin Sarat
and Jonathan Simon argue that this mode of governance has been focused
on managing the “social” sphere:
For more than a century of “reform,” which culminated in the
“welfare state” of the 1950s, 1960s, and 1970s, the liberal
rationality of government associated with laissez faire
capitalism41 and methodological individualism was generally
37. 515 U.S. 200 (1995).
38. Id. at 223-24 (identifying “skepticism,” “consistency,” and “congruence” as the unifying
principles of equal protection jurisprudence).
39. See, e.g., KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE
CONSTITUTION (1989). Karst defines the “principle of equal citizenship” thusly: “Each individual
is presumptively entitled to be treated by the organized society as a respected, responsible, and
participating member. Stated negatively, the principle forbids the organized society to treat an
individual as a member of an inferior or dependent caste or as a nonparticipant.” Id. at 3.
40. See Angela P. Harris, Beyond Equality: Power and the Possibility of Freedom in the
Republic of Choice, 85 CORNELL L. REV. 1181, 1185 (2000).
41. I disagree with Sarat and Simon’s characterization of the economy in this period as
“laissez faire capitalism.” Rather, I would argue that the dominance of “the social” as the paradigm
of governance is strongly associated with the so-called economic “Golden Age,” during which
growth was high and economists confident of their ability to smooth out the highs and lows of the
business cycle and to control inflation with fiscal and monetary policy. In economics during this
period, as in the other social sciences, the prestige and confidence of experts in their ability to
manage large-scale institutions and forces was at a maximum. See MICHAEL PERELMAN, THE
PATHOLOGY OF THE U.S. ECONOMY REVISITED: THE INTRACTABLE CONTRADICTIONS OF ECONOMIC
2003]
327
reordered around the social as a terrain for positive
knowledge and effective governmental intervention . . . . In
the twentieth century, . . . [t]he space of legal constructs was
colonized and occupied by “facts” generated by social
scientists.
Law and government came to rely heavily on the
methodologies and constructs of the social sciences in order
to shape the exercise of governmental power in areas as
diverse as prisons, schools, and labor . . . . Thus, whether we
look to government policy, legal doctrine, or social science,
the residue of the era of social liberalism remains a powerful
fusion of law, social science, and government.42
More recently, however, as Sarat and Simon recognize, governance by
reliance on experts on “society” has come under attack. In the late 1960s
and early 1970s, a long economic boom period gave way to a steady
decline in prosperity. By the late 1970s and early 1980s, right-wing
political activists and politicians, reinventing themselves as
“neoconservatives,” were using the economic crisis as an opportunity to
attack government policies and programs associated with the “left,” such
as affirmative action and programs like Aid to Families with Dependent
Children; to reject Keynesian economics in favor of new laissez-faire
corporatist, “supply side” economic policies; and more broadly to attack
“Big Government,” or the ideal of governance through management of “the
social,” itself.43 Legally, the project of dismantling the social welfare state
has been associated with the capture of the federal judiciary by
neoconservatives and libertarian sympathizers, and with the concomitant
moves to restrict civil rights and liberties, to cut taxes, and to expand
corporate and property rights as they have been traditionally understood.44
Even in the heyday of the social welfare state, however, the
government’s commitment to racial egalitarianism was always sharply
limited by its relatively narrow scope. As I have discussed elsewhere,
Plessy45 inaugurated an era in which White supremacy, though banished
from official state policy, was allowed to thrive in the realm of “custom”
and “the social”—a realm that included employment, education, industrial
POLICY 15-17 (2002).
42. Austin Sarat & Jonathan Simon, Beyond Legal Realism?: Cultural Analysis, Cultural
Studies, and the Situation of Legal Scholarship, 13 YALE J.L. & HUMAN. 3, 5-6 (2001).
43. Emblematic here is Margaret Thatcher’s famous statement, “There is no society. There
are only individuals and families.” Jon Margolis, Market Versus Family Values; GOP Debate Cut
to Core About Conservatism’s Vision, CHI. TRIB., Mar. 24, 1996, at C7, available at 1996 WL
2655294.
44. See generally Frank Valdes, Culture, ‘Kulturkampf,’ and Beyond: The Antidiscrimination
Principle Under the Jurisprudence of Backlash (unpublished manuscript on file with author).
45. 163 U.S. 537 (1896).
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production and exchange, and residential housing patterns.46 The
revolution marked by Brown v. Board of Education47 and the
antidiscrimination statutes passed during the “Second Reconstruction”
brought housing, employment, and education into the realm of “the
public,” but cases such as Milliken v. Bradley48 and Washington v. Davis49
thereafter indicated that nonconscious action and “market forces” would
remain shielded from the mandate of racial equality. Moreover, the
egalitarianism required by the Fourteenth Amendment was always limited
by that amendment’s limitation to citizens. Noncitizen residents of the
United States, including most Asian American immigrants before 1952 and
many Mexican immigrants, remained subject to color-conscious state
policy.50
Despite their egalitarian aspirations, the institutions of the welfare state
were deeply “raced” and “gendered” from the beginning, as policymakers
took race into account in their efforts to distinguish between the deserving
and the undeserving poor.51 As welfare was increasingly marked as African
American, welfare policies grew more punitive until “welfare as we know
it” was finally abolished altogether.52 The familial administrative state, as
Dorothy Roberts has documented, has also been racialized:53 nonwhite
women and children are disproportionately subject to stunning levels of
neglect and brutality in the adoption and foster care system.54 Gabriel Chin
has examined the ways in which administrative governance served to
enforce the federal policy of Asian exclusion in the late nineteenth and
early twentieth centuries.55
Finally, governance in the name of “the social” generally, and the social
welfare state in particular, never completely displaced older forms of
governance. Kevin Johnson’s essay in this cluster explores the parallels
between the contemporary state projects of immigration enforcement and
46. See generally Angela P. Harris, Equality Trouble: Sameness and Difference in TwentiethCentury Race Law, 88 CAL. L. REV. 1923 (2000).
47. 347 U.S. 483, 495 (1954) (concluding that racial segregation in public elementary schools
is inconsistent with the Equal Protection Clause).
48. 418 U.S. 717, 745 (1974) (noting that federal courts lack the power to impose interdistrict
remedies for school segregation absent an interdistrict violation or interdistrict effects).
49. 426 U.S. 229, 238-43 (1976) (noting that violations of the Equal Protection Clause
require proof of discriminatory intent, not merely of discriminatory effect).
50. See Harris, supra note 46.
51. DOROTHY ROBERTS, KILLING THE BLACK BODY: RACE, REPRODUCTION, AND THE
MEANING OF LIBERTY 204 (1997).
52. Id. at 208-09.
53. See id. See generally DOROTHY E. ROBERTS, SHATTERED BONDS: THE COLOR OF CHILD
WELFARE (2002).
54. See ROBERTS, supra note 51, at 273.
55. Gabriel J. Chin, Regulating Race: Asian Exclusion and the Administrative State, 37
HARV. C.R.-C.L. L. REV. 1, 37 (2002).
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329
domestic criminal law enforcement from the perspective of racial
exclusion.56 These state activities can be linked to a more generalized state
project: the penal state.
Governments are responsible not only for “law” but for “order” as well;
if liberal legalism represents the “law” in this equation, then the penal
state—also sometimes referred to as the sovereign state—represents
“order.” The areas controlled by the state in its role as sovereign include
domestic policing, immigration and naturalization matters, foreign policy,
including treaty making, and war making.57 Violence is a prominent feature
of the sovereign state: domestic law enforcement and immigration, for
example, are areas in which state officials are explicitly authorized to use
violence against lawbreakers.58 Additionally, in the sense in which “law”
56. See generally Johnson, supra note 6.
57. Family law can be understood as a project related to the project of the sovereign state.
Like penal law, family law traditionally has provided generously for the exercise of White
supremacy. More recently, the racial norms of the liberal project have slowly begun to infiltrate
family law, in the wake of Loving v. Virginia, 388 U.S. 1 (1967) (holding that antimiscegenation
statutes are unconstitutional under the Equal Protection Clause). Yet, explicit racial management
has been slow to disappear. For example, in the context of the Multiethnic Placement Act, a federal
statute intended to foster transracial adoptions, Rachel Moran explains:
Although the law is designed to establish a norm of colorblindness, enforcement
officials continue to acknowledge the social and cultural relevance of race to
family formation. Race is considered in evaluating parental competency at two
levels. In the first place, the placement process can accommodate a prospective
parent’s preference for a child of the same race . . . .
After personal preferences are ascertained, race enters the process again when
adoption agencies make objective evaluations of parental fitness. Because culture
is presumptively relevant even though race is not, federal law leaves considerable
room for same-race placements to persist out of concern that adoptive parents are
not competent to raise children from a different background. By failing to define
culture yet forbidding its use as a proxy for race, official interpretations hardly
clarify which parenting strategies are desirable and which are disqualifying.
Federal officials do not say whether colorblind parenting is culturally insensitive
or racially neutral. Nor do they tell adoption agencies whether color-conscious
parenting is culturally competent or racist. Far from making a norm of
colorblindness clear, current federal law leaves the mystery of what constitutes
healthy racial socialization unsolved.
RACHEL F. MORAN, INTERRACIAL INTIMACY: THE REGULATION OF RACE AND ROMANCE 143 (2001).
58. The practices of military, police, and immigration officials often overlap. Domestic police
forces were developed on the model of the military, and the arm of the Immigration and
Naturalization Service (INS) concerned with enforcement is organized similarly. In fact, critics have
regularly complained about the “militarization” of both police and immigration practices,
particularly in light of the various civil “wars” that presidential administrations have declared, first
on drugs and more recently on terrorism. For one critique of the militarization of border control,
see Timothy J. Dunn, Border Militarization Via Drug and Immigration Enforcement: Human
330
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is commonly opposed to “politics,” political strategy is at the forefront of
the workings of the sovereign state. The liberal legal state of rights where
the rule of law holds sway is a place of reason and argument; the sovereign
legal state is a place where might makes right, and power, rather than
reason, settles disputes.
Where the liberal state treats its citizens as lacking in bodies, the penal
state manages power through the marking and management of bodies. For
Machiavelli, sovereign power is the “register in which sexuality and
political purpose are thoroughly entwined.”59 As feminist scholars have
demonstrated in detail, the exercise of sovereign power, whether by the
military, the police, or border officials, is thoroughly masculinist: hostile
to both women and sexual minorities as a matter of principle as well as
practice.60 Race also has long been central to the exercise of sovereign
power in the United States. American history suggests that the social
projects of creating the nation, and of creating the idea of “whiteness,”
have long been intertwined.61 This is perhaps the most profound sense in
which Omi and Winant are correct that the United States is a “racial state.”
As Ian Haney López points out, the very first federal naturalization
statute specified that prospective citizens of the United States be “White.”62
The post-Civil War amendment of this statute to permit naturalization by
persons of African descent left in place the power of the national
government to exclude other nonwhite groups, a power that has been
treated as “plenary.”63 From this perspective, the “Mexican Exception” of
which Mirandé speaks is only one of the most recent manifestations of the
continuing political project that historian Rogers Smith describes as
“ascriptive Americanism.”64
Rights Implications, 28 SOC. JUST. 7 (2001).
59. Wendy Brown, Finding the Man in the State, in STATES OF INJURY: POWER AND FREEDOM
IN LATE MODERNITY 186 (1995).
60. See, e.g., CYNTHIA H. ENLOE, MANEUVERS: THE INTERNATIONAL POLITICS OF
MILITARIZING WOMEN’S LIVES 37 (2000); CYNTHIA ENLOE, BANANAS, BEACHES AND BASES 65-92
(1989); Sylvanna Falcon, Rape as a Weapon of War: Advancing Human Rights for Women at the
U.S.-Mexico Border, 28 SOC. JUST. 31 (2001); Madeline Morris, By Force of Arms: Rape, War, and
Military Culture, 45 DUKE L.J. 651, 690-91 (1996).
61. See, e.g., MATTHEW FRYE JACOBSON, WHITENESS OF A DIFFERENT COLOR: EUROPEAN
IMMIGRANTS AND THE ALCHEMY OF RACE (1998); ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING
VISIONS OF CITIZENSHIP IN U.S. HISTORY (1997).
62. IAN F. HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE 1 (1996)
(citing Act of March 26, 1790, ch. 3, 1 Stat. 103).
63. See Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the
Constitutional Law of Immigration, 46 UCLA L. REV. 1, 6 (1998) (“The cases that created the
plenary power doctrine . . . not only continue to be cited but, in the words of one distinguished
authority, ‘said nearly everything the modern lawyer needs to know about the source and extent of
Congress’s power to regulate immigration.’”).
64. See SMITH, supra note 61, at 36 (proposing that “ideologies of ascriptive Americanism
2003]
331
In contrast to the activities regulated by the welfare state, where race is
thought to be a difference that makes no difference, the penal state both
actively manages racial difference (in the form of people’s racialized
bodies) and actively constructs it (in the form of symbolic resources).
Sovereign power is “about race” in the most obvious ways: law
enforcement officials look for racial differences among people and direct
violence against them based on what they find. As scholars have noted in
exhaustive detail, United States prisons and jails are disproportionately full
of African American and Latina/o bodies. As Mirandé emphasizes,
immigration enforcement activities target Mexican-looking people, people
who appear to be of Indio-Hispanic racial ancestry.65 Kevin Johnson’s
essay describes the practices of racial profiling both at the border and on
the streets.66
In addition, the sovereign state actively draws on racialized meanings
and images to justify its actions. Sovereign power is a register in which the
protection of abstract national and social bodies is understood as allimportant, and to make these imaginary bodies seem real, elites appeal to
the rhetoric of physical bodies. Immigration law protects the integrity of
the national body; criminal law protects the integrity of the domestic body.
Both areas of law are subject politically to “moral panics” in which the
language of contagion, corruption, and impurity—rhetoric that uses bodily
metaphors of health and disease to describe the nation—become
prominent.67 In both areas of the law, the task of protecting the fantasized
purity of legal-social bodies from contagion is identified more or less
explicitly with the task of controlling (actual) racialized bodies. From the
nineteenth-century panic about the “Yellow Peril” to present-day fears
about Arab Americans, dark bodies are associated with threats to national
and social integrity.68 As Gabriel Chin has made clear, since the Chinese
Exclusion Cases, the Supreme Court has granted nearly plenary power to
immigration officials to protect the national body, a protection that is
have always done some of the work that civic myths do more effectively than liberalism or
democratic republicanism, despite the mythical components that those traditions also possess”).
65. See generally Mirandé, supra note 1.
67. On the rhetoric of health, disease, and pollution in criminal justice policy, see, e.g, Martha
Grace Duncan, In Slime and Darkness: The Metaphor of Filth in Criminal Justice, 68 TUL. L. REV.
725, 751 (1994); Mona Lynch, Pedophiles and Cyber-Predators as Contaminating Forces: The
Language of Disgust, Pollution, and Boundary Invasions in Federal Debates on Sex Offender
Legislation, 27 LAW & SOC. INQUIRY 529, 530 (2002). On the dehumanizing of immigrants in
public discourse, even by immigrant rights activists, see John S.W. Park, Race Discourse and
Proposition 187, 2 MICH. J. RACE & L. 175, 176 (1996).
68. For a historical examination of both racialized and gendered moral panics in the history
of United States drug policy, see NANCY D. CAMPBELL, USING WOMEN: GENDER, DRUG POLICY,
AND SOCIAL JUSTICE 11, 32 (2000).
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permissibly race-conscious.69 It is not surprising, therefore, that both police
and immigration officials engage in racial profiling as a means of
protecting the nation from disorder.70 As Mirandé points out, protection of
the nation from the “other” often means defending the Mexican border.71
Johnson adds that police engage in an everyday, domestic version of this
ethnic cleansing when they profile African American suspects.72
The contrast between these explicitly racialized state projects and the
rhetoric of equality, in which state racial classifications are forbidden,
could not be more stark. Yet, in practice, there is much less conflict
between sovereign and liberal power than one might expect. Judges, who
administer the liberal “rule of law,” typically grant extreme deference and
a high degree of discretion to state actors when those actors cite reasons of
national security and public order. McCleskey v. Kemp73 is only one
example; another might be the infamous Supreme Court decision in
Korematsu v. United States.74 Deference and discretion to the state actors
charged with the business of exercising sovereign power provides a cover
for racial and ethnic cleansing activities that would otherwise be
considered anathema in an egalitarian society.
The jurisprudence of criminal procedure is a paradigmatic example of
this co-dependent relationship between liberal rights and sovereign power.
As many legal scholars have complained, although criminal procedure is
highly constitutionalized, the Court has, especially in recent years, gone out
of its way to show deference to the customary practices of police and other
law enforcement officials. In the “salad days” of the Warren Court, the
Supreme Court showed a willingness to disrupt business as usual in the
name of protecting individuals accused of crime from police abuse, and the
Court acknowledged the strong possibility that such abuse might not be
arbitrary but rather discriminatory in character.75 Since that time, as
69. See Chin, supra note 63.
70. Indeed, at least one commentator argues that domestic law enforcement officers
subjectively experience their jobs as a kind of racialized colonial adventure. See generally James
M. Doyle, “It’s the Third World Down There!”: The Colonialist Vocation and American Criminal
Justice, 27 HARV. C.R.-C.L. L. REV. 71 (1992).
71. Mirandé, supra note 1, at 388-89. Other times, it means defending the United States
against Asian “spies.” See Miriam Kim, Discrimination in the Wen Ho Lee Case: Reinterpreting
the Intent Requirement in Constitutional and Statutory Race Discrimination Cases, 9 ASIAN L.J.
117, 152 (2002). Recently, it came to mean protecting the United States against Arab “terrorists.”
See Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. REV. 1575, 1576-81 (2002).
72. Johnson, supra note 6, at 349-51.
73. 481 U.S. 279 (1987).
74. 323 U.S. 214, 216 (1944) (upholding the wartime internment of Japanese Americans,
despite acknowledgment that “all legal restrictions which curtail the civil rights of a single racial
group are immediately suspect”).
75. See DAVID COLE, NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN CRIMINAL
JUSTICE SYSTEM (1999).
2003]
333
Mirandé and Slobogin note, constitutional protections for individual
persons under suspicion of criminal activity and individuals in the custody
of the criminal justice system have been steadily eroded by the emergence
of a series of ad-hoc “exceptions” to general protections.76 These
exceptions provide, once again, an excellent cover for the targeting of
persons according to their perceived race. In this way, McCleskey stands
for more than the intent requirement of the Fourteenth Amendment and
how it applies to the criminal justice system; it stands for the complicity of
liberal and sovereign power.
At the end of his essay, Slobogin develops the intriguing idea that a
“poverty exception” underlies Fourth Amendment jurisprudence.77 As he
points out, “[s]everal Court decisions define expectations of privacy in a
way that makes people who are less well-off more likely to experience
warrantless, suspicionless government intrusions.”78 Moreover, Slobogin
continues, “[e]ven in those situations where the interior of the home is not
viewable from a public space, the homes of poor people are more likely to
receive little or no Fourth Amendment protection.”79 The Court grants less
Fourth Amendment protection to apartments, cars, and containers located
outside a dwelling than to single-family homes;80 has held that public
arrests do not require a warrant, as opposed to arrests taking place in a
private space;81 has ruled that “brief police-citizen encounters on the street
and on public transportation are ‘consensual,’”82 and most recently, has
permitted custodial arrests even for very minor crimes.83 Constitutional
protection, in criminal procedure, is tied to the concept of a reasonable
expectation of “privacy;” but privacy is tied to the ability to control access
to private property.
Whereas the social welfare state and the penal state are centrally
concerned with race—making sure that it does not matter or making sure
that it does—the capitalist state is structurally indifferent to race. Indeed,
the capitalist mode of power is, at least in principle, opposed to all status
hierarchies because it obeys the single principle of economic efficiency or
wealth maximization, under which all areas of social life should be subject
to markets and within which all participants in markets are presumed
equal, even fungible, with one another. This does not mean, however, as
some have argued, that racial discrimination has been or will soon be
76.
77.
78.
79.
80.
81.
82.
83.
Mirandé, supra note 1, at 367-68; Slobogin, supra note 3, at 391, 393.
Slobogin, supra note 3, at 408-12.
Id. at 400.
Id. at 402.
Id.
Id. at 403-04.
Id. at 405.
Id. at 405-06.
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driven out by market forces.84 Because capitalism both generates and
thrives on inequality, and because markets are imperfect and not separate
from politics, racial inequalities are perpetuated and often magnified by the
market practices of production, exchange, and consumption, and by the
processes of market creation.85
The criminal procedure cases Slobogin discusses are in accord with
decisions in other areas of constitutional law concerning wealth and
poverty.86 It is uncontested that government “wealth classifications” in
general do not receive heightened scrutiny.87 Rather, as the Court reasoned
in Dandridge v. Williams,88
[f]or this Court to approve the invalidation of state economic
or social regulation as “overreaching” would be far too
reminiscent of an era when the Court thought the Fourteenth
Amendment gave it power to strike down state laws “because
they may be unwise, improvident, or out of harmony with a
particular school of thought.” That era long ago passed into
history.89
Although the Court has mandated that government spend resources on poor
people when access to legal counsel is at stake, that mandate is extremely
narrow.90 The general rule that the Constitution does not create “positive”
but only “negative” rights remains. In practice, this means that access to
84. See, e.g., Richard A. Epstein, Standing Firm, on Forbidden Grounds, 31 SAN DIEGO L.
REV. 1, 1 (1994) (“[T]he best set of overall social outcomes would come from a legal order that
tolerated any form of private discrimination or favoritism, whether practiced by the most vicious
and ardent white supremacist or the most dedicated proponent of diversity or affirmative action.”);
James E. Macdonald & Caryn L. Beck-Dudley, A Natural Law Defense to the Employment Law
Question: A Response to Richard Epstein, 38 AM. BUS. L.J. 363, 399-400 (2001) (describing
Epstein’s position on Title VII that rational racial discrimination should be permitted and that
irrational racial discrimination will be driven out by market forces).
85. The discussion that follows focuses on initial allocations of property rights and systematic
transfers of wealth according to political rules that link race strongly to class. However, it has also
been suggested that another mechanism for the maintenance of racial discrimination in markets is
that individuals have a preference or “taste” for discrimination because discrimination is a means
by which social groups produce status for their members. See generally Richard H. McAdams,
Cooperation and Conflict: The Economics of Group Status Production and Race Discrimination,
108 HARV. L. REV. 1003 (1995). If this is true, then even successful “reparations” programs that
attempted to undo unjust transfers and creation of wealth would soon be stymied by continuing
racial discrimination.
86. See generally Slobogin, supra note 3.
87. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 102 n.61 (1973).
88. 397 U.S. 471 (1970).
89. Id. at 484-85 (citations omitted).
90. See COLE, supra note 75, at 92 (describing the Court’s moves to alleviate inequality as
“more ceremonial bows than actual reforms”).
2003]
335
constitutional rights may be conditioned on the ability to pay for their
exercise. The inability of the homeless and the poor to control access to
property not only prevents them from exercising basic constitutional rights;
but it also means that, to the extent they cannot enjoy all the rights and
privileges of liberal citizenship, they are subject to the regulation and
control of the administrative arm of the social welfare state, an apparatus
that, as Jill Elaine Hasday explains, functions “to manage the dependency
of poor people in a wage labor economy.”91 Thus, the law of government
benefits, family law, and housing is bifurcated, with one set of rights for
those who have access to property through income or wealth, and another
set of rights (often couched in the legal terms of “privilege” rather than
“right”) for those who do not.92 In the new era of privatization and erosion
of the welfare state, responsibility for these “dependents” has increasingly
been transferred to the penal state.93
Race, gender, and class are historically interrelated in the United States.
At the founding of the nation, certain groups of people were excluded by
law from full participation in capitalist activity: African Americans, as
slaves, constituted property and thus could not hold property or make
contracts themselves; married women, subject to the law of coverture,
could not hold property or make contracts in their own names but were
persons only indirectly, through their fathers and husbands; indigenous
Americans were considered incapable of holding full title to land under the
doctrine of discovery.94 The Plessy95 era, as we have seen, gave
91. Jill Elaine Hasday, Parenthood Divided: A Legal History of the Bifurcated Law of
Parental Relations, 90 GEO. L.J. 299, 301 (2002); see also NANCY FRASER, JUSTICE INTERRUPTUS:
CRITICAL REFLECTIONS OF THE “POSTSOCIALIST” CONDITION 121-44 (1997) (discussing
“dependency” as a keyword of the welfare state that labels individuals as targets for bureaucratic
social control). For a philosophical exploration of the lack of freedom of the homeless in a society
based on private property, see Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA
L. REV. 295 (1991).
92. See generally Hasday, supra note 91; see, e.g., Dept. of Housing v. Rucker, 535 U.S. 125
(2002) (upholding against a due process challenge a federal statute giving local public housing
authorities the discretion to terminate the lease of a tenant when a member of the household or a
guest engages in drug-related activity, regardless of whether the tenant knew, or should have
known, of the drug-related activity); William E. Forbath, Constitutional Welfare Rights: A History,
Critique and Reconstruction, 69 FORDHAM L. REV. 1821 (2001) (describing the ultimately failed
effort by constitutional scholars to have the Court recognize welfare rights as property).
93. In the process, Malcolm Feeley and Jonathan Simon argue, the penal state itself takes on
some of the characteristics of the bureaucratic state, although now based on principles of risk
management rather than on social services. Feeley & Simon call this “the new penology.” See
Malcolm M. Feeley & Jonathan Simon, The New Penology: Notes on the Emerging Strategy of
Corrections and Its Implications, 30 CRIMINOLOGY 449, 449 (1992).
94. See Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823) (describing the doctrine of
discovery).
95. 163 U.S. 537 (1896).
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constitutional sanction to the economic exploitation and to the exclusion
of African Americans, Asian Americans, and other nonwhites through
employment discrimination, housing discrimination, and the post-World
War II “suburban-industrial complex,” which was developed with the
intensification of racial segregation and hierarchy in mind.96 These and
other state projects succeeded in obstructing the efforts of racialized groups
to build capital, and systematically transferred wealth from people of color
to Whites. In contemporary times, people of color continue to routinely
experience differential access to credit as well as discrimination in
employment and housing, compounding the effects of past discrimination
and exclusion. The legal and social institutions of capitalism have
absorbed, and now reproduce, and even intensify, the economic
inequalities generated by decades of White supremacy.
Here, again, the jurisdictional function of liberal legalism provides
room for possibly conflicting state projects to co-exist. The social welfare
state has attempted to implement norms of equality and, to a modest
extent, substantive social and economic rights. At the same time,
capitalism operates not to produce equality but inequality, and is
indifferent to questions of distribution. The primary way in which the antiegalitarian tendencies of capitalism are shielded from scrutiny through the
egalitarian lens of the welfare state is through the “public/private
distinction”—first criticized by the Legal Realists, later by Critical Legal
Studies, and finally by mainstream constitutional theorists.97 Despite nearconstant critique, the courts continue to treat common law institutions and
distributions of power, particularly those central to capitalism, as prepolitical and thus as “not state action.” As Lisa Iglesias has put it, the
96. On suburbanization and the role of federal policy in the making of the Black ghetto, see
MELVIN L. OLIVER & THOMAS M. SHAPIRO, BLACK WEALTH/WHITE WEALTH: A NEW PERSPECTIVE
ON RACIAL INEQUALITY 16-18 (1999). For a general discussion of racialized state policies that
blocked Blacks from creating wealth, see id. at 37-45. For a discussion of historical state and
private actions resulting in widespread racial discrimination in housing markets, see DOUGLAS S.
MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE
UNDERCLASS 26-59 (1993). On the importance of home ownership, subsidized for Whites but not
for Blacks, see Phyllis Craig-Taylor, To Be Free: Liberty, Citizenship, Property and Race, 14
HARV. BLACKLETTER L.J. 45 (1998). The post-slavery exploitation of Black labor included the
sharecropping system, id. at 57-59; race discrimination on the part of unions and successful
employer efforts to use African Americans as lower-wage “scabs,” id. at 65; and the convict labor
system. The alien land laws and the Japanese internment also intentionally prevented the
development of Asian American wealth. See Gabriel J. Chin, Citizenship and Exclusion: Wyoming’s
Anti-Japanese Alien Land Law in Context, 1 WYO. L. REV. 497, 505 (2001).
97. See, e.g., CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION 51-54 (describing the Legal
Realist critique of laissez-faire through the recognition that “private” law was necessarily the
product of government action); MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 102-09
(1987) (setting out the Critical Legal Studies critique of the public/private distinction); SUNSTEIN,
supra, at 3-4 (adopting a critique of “status quo neutrality” in constitutional law).
2003]
337
United States subscribes to the idea of an “anti-political economy.”98
Keeping the economy away from politics, of course, makes it possible to
preserve the anti-egalitarian tendencies of capitalism and shield them from
critique.
From this perspective, Slobogin’s suggestion that insensitivity to class,
rather than hostility based on race, drives Fourth Amendment
jurisprudence is again not so much in conflict with Mirandé’s and
Johnson’s focus on race as it might first appear. On the one hand, Slobogin
is surely right to suggest that “class” and “race” are not the same thing;99
the state project of protecting and fostering corporate capitalism involves
different institutions and different forms of power than the state project of
preserving and protecting the imaginary national community, or the project
of managing social welfare. The simple insistence that “it’s all about race”
thus fails to consider the complexities of how White supremacy functions
in different arenas.
On the other hand, it has been my argument, following Omi and
Winant, that each of these quite distinct state projects is nevertheless
racialized.100 Race and political economy are so deeply intertwined in the
United States that class and race can never be fully separated. To this
extent, Mirandé and Johnson are right to focus on White supremacy as a,
if not the, master narrative.
III. CONCLUSION
Johnson’s essay takes us to the point where the rubber meets the road.
The complexities of racial formation in the contemporary United States
mean, as Johnson explains, that Latinas/os and African Americans may
experience short-term benefits from supporting the penal state’s
racialization of criminal law and immigration enforcement.101 Yet, the
long-term interest of both groups is in challenging, rather than
strengthening, White supremacy. As Johnson puts it, “[o]nce race is let out
of the proverbial genie’s bottle . . . it is difficult to limit where and when
it will be considered by law enforcement authorities.”102 The result, as he
acknowledges, is a classic “prisoner’s dilemma”: each player will be far
better off if it cooperates with the other, but neither can trust the other not
to defect and thus seek a smaller but more certain benefit.103
98. See Lisa Iglesias, Structural Violence: Law and the Anti-Political Economy (unpublished
manuscript, on file with author).
99. Slobogin, supra note 3, at 400.
100. See OMI & WINANT, supra notes 20-26 and accompanying text.
101. Johnson, supra note 6, at 360-62.
102. Id. at 361.
103. Id.
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Complicating the prisoner’s dilemma is the fact that there is not one
form of racism, but many. As Robert Chang and Keith Aoki have pointed
out, “nativist” racism operates differently from color racism, and racialized
groups can and do play these differences against each other.104 Indeed, as
Omi and Winant recognize, race itself is not a stable thing but a social
construction always in process.105 We have seen different relationships
between various state projects and racial formation. The social welfare
state has sought to enforce norms of race neutrality in the “legal” sphere
and to permit “social” management on the basis of race. The agencies of
the penal state have entrusted state officials with the power and discretion
to punish actual colored bodies in the name of an imaginary pure White
national body. The institutions of the capitalist state have permitted racial
differentials of political power to be leveraged in the creation and amassing
of wealth. Racialized groups involved in politics in and around Omi and
Winant’s “racial state” face not one, but a multitude, of prisoner’s
dilemmas.
Moreover, we are now also facing potential changes in the organization
of White supremacy, as the social welfare state gives way to both a newly
revitalized penal state concerned openly with racial and cultural policing,
and a newly revitalized “free market” capitalist state being exported around
the world. Traditional civil rights and civil liberties arguments are
uncertain tools in this new environment. McCleskey106 symbolizes the
deference liberal law pays to state forces that promise order and security,
even when the terms of that security seem blatantly in conflict with
egalitarian values. The survival of the public/private distinction represents
the similar deference that protects the anti-political economy.
Although the essays in this cluster were written before the events of
September 11, 2001, they are timely in their focus on the difficulties of
confronting the penal state with liberal values. Slobogin demonstrates the
difficulty in finding racism in the text of the applicable law.107 Mirandé
reminds us of the layers of law not penetrable by courtroom arguments.108
Johnson sets out both the necessity and difficulty (if not impossibility) of
building coalitions among those groups that bear the burden of American
104. Robert S. Chang & Keith Aoki, Centering the Immigrant in the Inter/National
Imagination, 10 LA RAZA L.J. 1395, 1414 (1997) (noting that “[b]ecause of the construction of the
national community as White and Black, Asian Americans and Latina/os are discursively produced
as foreign”).
105. Omi and Winant famously propose that “racial formation”—“the sociohistorical process
by which racial categories are created, inhabited, transformed, and destroyed”—consists of “a
process of historically situated projects in which human bodies and social structures are represented
and organized.” OMI & WINANT, supra note 20, at 55-56.
106. 481 U.S. 279 (1987).
107. See generally Slobogin, supra note 3.
108. See generally Mirandé, supra note 1.
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339
elites’ attempt to secure security for themselves.109 If these essays do not
offer us easy optimism, they at least make clear the difficulty of the path
that lies ahead.
THE CASE FOR AFRICAN AMERICAN AND LATINA/O
COOPERATION IN CHALLENGING RACIAL PROFILING
IN LAW ENFORCEMENT
Kevin R. Johnson*
I. RACIAL PROFILING IN LAW ENFORCEMENT . . . . . . . . . . . . . . . . . 343
A. Criminal Law Enforcement . . . . . . . . . . . . . . . . . . . . . . . . 343
B. Immigration Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . 347
II.
SIMILAR HARMS, COMMON CONCERNS, AND THE
RELATIONSHIP BETWEEN DIFFERENT FORMS OF
RACE-BASED LAW ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . 353
III.
THE EFFICACY OF MULTIRACIAL COALITIONS IN CHALLENGING
RACIAL PROFILING IN LAW ENFORCEMENT . . . . . . . . . . . . . . . 357
IV.
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363
The formal and informal targeting of African Americans, Latinas/os,
and other racial minorities for police stops on account of race, known
popularly as racial profiling, has grabbed national attention.1 Race-based
enforcement of the United States’ immigration laws, which grew in
importance as the U.S. government escalated efforts to deport
undocumented immigrants in the 1990s, has just begun to gain public
* Associate Dean for Academic Affairs at the University of California-Davis School of Law
and Chicana/o Studies; Director, Chicana/o Studies Program (2000-2001), University of California,
Davis. B.A., University of California at Berkeley; J.D., Harvard University. This Essay was
presented in draft form at the University of Florida as part of the Sixth Annual Critical Latina/o
Theory Conference, LatCrit VI, in April 2001. I thank the conference planning committee,
especially Berta Hernández, for organizing a successful conference; Devon Carbado, who asked me
to participate on the panel; and those who attended the presentation and offered comments. This
Essay benefitted from discussions with Richard Delgado and Ken Nunn as well as the comments
of George A. Martínez, Mary Romero, and Sylvia Lazos on a draft.
1. See, e.g., THE PRESIDENT’S INITIATIVE ON RACE, THE ADVISORY BOARD’S REPORT TO THE
PRESIDENT—ONE AMERICA IN THE 21ST CENTURY: FORGING A NEW FUTURE 78 (1998) [hereinafter
THE PRESIDENT’S INITIATIVE ON RACE] (discussing racial profiling in law enforcement as a criminal
justice problem); 60 Minutes: Blacks and Latinos Deal with Harassment from Police (CBS
television broadcast, Feb. 11, 2001).
341
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awareness.2 The two law enforcement practices share a common
thread—both use race as a signal of potential unlawful conduct or status.
This Essay contends that African Americans and Latinas/os share
mutual concerns with governmental reliance on race in the enforcement of
the criminal and immigration laws. Both suffer civil rights deprivations
resulting from the reliance on statistical probabilities by law enforcement
officers. Overlapping interests create the potential for intellectual linkages
and political alliances designed to remove the taint of race from law
enforcement.3 More generally, the criminal justice system in the United
States, which skews enforcement, prosecution, and imprisonment toward
young African American and Latino males,4 represents a legitimate target
for concerted action. The common need and goal of reforming law
enforcement creates the potential for far-reaching alliances.5
Eliminating racial bias from law enforcement through multiracial
coalitions—like all diverse alliances—will no doubt prove to be an
arduous project, marked by setbacks as well as breakthroughs. Formidable
barriers exist to the building of political coalitions between and among
African Americans and Latinas/os, as well as other minority communities.6
Importantly, the various groups may perceive themselves as having
competing interests. Nonetheless, political realities dictate that alliances
are essential to the quest for racial justice in the United States.7
Critical Latina/o Theory has much to add to the analysis of coalitionbuilding. LatCrit theorists contend that, to fully understand racial
subordination in the United States, scholars must study its impact on
African Americans, Latinas/os, and other groups, and how the
subordination of various groups fits into broader patterns of racial and
other discrimination.8 Coalitions designed to combat racial inequality are
2. See, e.g., Susan Sachs, Files Suggest Profiling of Latinos Led to Immigration Raids, N.Y.
TIMES, May 1, 2001, at B1; Jim Yardley, Some Texans Say Border Patrol Singles Out Too Many
Blameless Hispanics, N.Y. TIMES, Jan. 26, 2000, at A17. Similarly, the growing number of deaths
of Mexican citizens resulting from increased border enforcement operations has begun to attract
national attention. See, e.g., James Sterngold, Devastating Picture of Immigrants Dead in Arizona
Desert, N.Y. TIMES, May 25, 2001, at A1; James Sterngold, Rights Groups Urge Change in Border
Policy, N.Y. TIMES, May 26, 2001, at A10. See generally Bill Ong Hing, The Dark Side of
Operation Gatekeeper, 7 U.C. DAVIS J. INT’L L. & POL’Y 121 (2001) (analyzing human toll of U.S.
border enforcement).
3. See, e.g., George A. Martínez, African-Americans, Latinos, and the Construction of Race:
Toward an Epistemic Coalition, 19 CHICANO-LATINO L. REV. 213 (1998).
4. See infra text accompanying notes 10-62.
8. See Elizabeth M. Iglesias, Foreword: Identity, Democracy, Communicative Power,
Inter/National Labor Rights and the Evolution of LatCrit Theory and Community, 53 U. MIAMI L.
REV. 575, 595, 622-29 (1999); Athena D. Mutua, Shifting Bottoms and Rotating Centers:
2003]
343
central to LatCrit Theory.9 Both aspects of LatCrit Theory are implicated
by the potential African American and Latina/o challenge to race-based
law enforcement.
Part I of this Essay sketches the legal problems with race profiling in
criminal and border enforcement, showing how both forms adversely
impact Latinas/os and African Americans. Part II studies the common
interests of Latinas/os and African Americans in eliminating race-based
law enforcement. Part III analyzes the efficacy of coalitions to remedy the
racism at the core of law enforcement in the United States. This Essay
concludes that, difficult as it may be, collective action is essential to bring
about much needed racial reform in law enforcement.
I. RACIAL PROFILING IN LAW ENFORCEMENT
Racial profiling in both criminal and immigration law enforcement
adversely affects African Americans, Latinas/os, and other racial groups.
Unfortunately, misconceptions and stereotypes result in law enforcement’s
excessive reliance on physical appearance as a proxy for legal wrongdoing.
Intellectually and practically, racial profiling in criminal law differs little
in kind and substance from that employed in immigration enforcement.
The reliance on race has proven difficult to eliminate from law
enforcement. This Essay contends that race cannot be removed selectively
from one form of law enforcement but not the other. As history suggests,
once race-based enforcement taints one aspect of law enforcement, it
almost inevitably infects other areas.10 Consequently, the most durable
solution is to seek to remove the impermissible use of race, root and
branch, from all forms of law enforcement.
A. Criminal Law Enforcement
Few dispute that African American men are routinely stopped by police
for “driving while Black.”11 This practice is the tip of the proverbial
Reflections on LatCrit III and the Black/White Paradigm, 53 U. MIAMI L. REV. 1177, 1202-15
(1999); Francisco Valdes, Piercing Webs of Power: Identity, Resistance, and Hope in LatCrit
Theory and Praxis, 33 U.C. DAVIS L. REV. 897, 897-98 (2000); see also Mari J. Matsuda, Beside
My Sister, Facing the Enemy: Legal Theory Out of Coalition, 43 STAN. L. REV. 1183 (1991)
(analyzing the importance of multiracial coalitions because of the interrelationships between all
subordinations).
9. See Francisco Valdes, Foreword: Under Construction—LatCrit Consciousness,
Community, and Theory, 85 CAL. L. REV. 1087, 1094 (1997).
11. See, e.g., Angela J. Davis, Race, Cops, and Traffic Stops, 51 U. MIAMI L. REV. 425, 43132 (1997); David A. Harris, The Stories, the Statistics, and the Law: Why “Driving While Black”
Matters, 84 MINN. L. REV. 265, 275-88 (1999); Tracey Maclin, Race and the Fourth Amendment,
51 VAND. L. REV. 333, 342-62 (1998); David Rudovsky, Law Enforcement by Stereotypes and
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iceberg of discrimination against the African American community in this
nation’s criminal justice system.12 Similarly, police officers stop Latinas/os
for “driving while Brown.”13 Police departments in urban metropolises like
Chicago, Los Angeles, and New York City, for many years have focused
the criminal justice machinery on Latinas/os, just as African Americans
have been targets of law enforcement. 14 Studies show that police “are
stopping . . . blacks, Latinos and Asians approximately eight to ten times
as often as they are stopping whites.”15
Few deny the concrete harms of racial profiling. When criminal
investigation focuses on African Americans and Latinas/os, more members
of these groups will be arrested and convicted of crimes, thereby
Serendipity: Racial Profiling and Stops and Searches Without Cause, 3 U. PA. J. CONST. L. 296
(2001); Katheryn K. Russell, “Driving While Black”: Corollary Phenomena and Collateral
Consequences, 40 B.C. L. REV. 717, 718-19 (1999); David A. Sklansky, Traffic Stops, Minority
Motorists, and the Future of the Fourth Amendment, 1997 SUP. CT. REV. 271; Anthony C.
Thompson, Stopping the Usual Suspects: Race and the Fourth Amendment, 74 N.Y.U. L. REV. 956,
957 (1999).
12. See, e.g., DAVID COLE, NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN JUSTICE
SYSTEM (1999); DAVID A. HARRIS, PROFILES IN INJUSTICE: WHY RACIAL PROFILING CANNOT WORK
(2002); RANDALL KENNEDY, RACE, CRIME AND THE LAW (1997); KATHERYN K. RUSSELL, THE
COLOR OF CRIME: RACIAL HOAXES, WHITE FEAR, BLACK PROTECTISM, POLICE HARASSMENT, AND
OTHER MACROAGGRESSIONS (1998).
13. See, e.g., Chavez v. Illinois State Police, 251 F.3d 612 (7th Cir. 2001) (analyzing claims
of police racial profiling of Latinas/os and African Americans); Martinez v. Village of Mount
Prospect, 92 F. Supp. 2d 780, 781 (N.D. Ill. 2000) (discussing Latina/o racial profiling); Rodriguez
v. Cal. Highway Patrol, 89 F. Supp. 2d 1131, 1134 (N.D. Cal. 2000) (Latina/o and African
American profiling); Nat’l Cong. for Puerto Rican Rights v. City of New York, 191 F.R.D. 52
(S.D.N.Y. 1999) (Latina/o and Black plaintiffs); Chavez v. Ill. State Police, 27 F. Supp. 2d 1053
(N.D. Ill. 1998) (Latinas/os and African Americans); see also Devon W. Carbado, [E]Racing the
Fourth Amendment, 100 MICH. L. REV. 946 (2002) (analyzing Fourth Amendment decisions’,
negative impact on African Americans and Latinas/os); Frank Rudy Cooper, The Un-Balanced
Fourth Amendment: A Cultural Study of the Drug War, Racial Profiling and Arvizu, 47 VILL. L.
REV. 851 (2002) (same).
14. See, e.g., Cruz Reynoso, Hispanics and the Criminal Justice System, in HISPANICS IN THE
UNITED STATES: AN AGENDA FOR THE TWENTY-FIRST CENTURY 277 (Pastora San Juan Cafferty &
David W. Engstrom eds., 2000); see also Robert Garcia, Latinos and Criminal Justice, 14
CHICANO-LATINO L. REV. 6, 7 n.4 (1994) (observing the lack of academic attention to Latinas/os
in criminal justice system); Laura E. Gómez, Race, Colonialism, and Criminal Law: Mexicans and
the American Criminal Justice System in Territorial New Mexico, 34 LAW & SOC’Y REV. 1129
(2000) (investigating impact of race on persons of Mexican ancestry in criminal justice system of
territorial New Mexico); Mary Romero, State Violence and the Social and Legal Construction of
Latino Criminality: From El Bandido to Gang Members, 78 DENV. U.L. REV. 1081 (2001)
(analyzing negative impacts of police classification of Latina/o youth as gang members and
criminals); Reynaldo Anaya Valencia, Latinos and the Criminal Justice System: An Overview of
the Invisible/Visible Minority, 1 HARV. LATINO L. REV. 27 (1994) (analyzing available data on
Latinas/os in criminal justice system).
15. Symposium: Panel V: Promoting Racial Equality, 9 J.L. & POL’Y 347, 365 (2001)
(discussing comments of Professor Deborah A. Ramirez).
2003]
345
contributing to disparate incarceration rates.16 Racial profiles punish,
embarrass, and humiliate innocent people, whose skin color is used as a
proxy for criminal conduct.17 Moreover, as U.S. society becomes
increasingly multiracial, “the possibility for error [when using race in law
enforcement] likewise increases, simply because the diversity of groups
and of individuals within each group makes extrapolations from group
characteristics to individual conduct more tenuous.”18 Unfortunately,
profiling, as part of a long history of discriminatory law enforcement,
fosters a deep cynicism among racial minorities about the criminal justice
system.19 Fearing the police, they may not cooperate in the reporting and
investigation of criminal activity.20 Ultimately, the targeting of African
Americans and Latinas/os for police stops increases the likelihood that they
will suffer police brutality.21
Besides African Americans and Latinas/os, Asian Americans are, at
times, affected by racial profiling. The Wen Ho Lee case, in which an
Asian American scientist was jailed on trumped up espionage charges, is
a well-known example.22 Police in some localities also employ gang
profiles to target Asian American youth.23
16. See infra note 31 and accompanying text.
17. Because of the intersection of race and class in U.S. society, poor and working class
African Americans and Latinas/os suffer the brunt of race-based policing. See generally David A.
Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69
IND. L.J. 659 (1994).
18. Viet D. Dinh, Races, Crime, and the Law, 111 HARV. L. REV. 1289, 1303 (1998) (book
review).
19. See Harris, supra note 11, at 298-300; see also William J. Stuntz, Race, Class, and
Drugs, 98 COLUM. L. REV. 1795, 1797 n.6 (1998) (reviewing survey data reflecting that African
Americans have deeply negative views of the criminal justice system).
20. See Erik Luna, Transparent Policing, 85 IOWA L. REV. 1107, 1118-19 (2000).
21. See DERRICK BELL, RACE, RACISM AND AMERICAN LAW § 9.6, at 478 (4th ed. 2000); see,
e.g., JOHN L. BURRIS & CATHERINE WHITNEY, BLUE VS. BLACK 15-25 (1999) (discussing various
incidents of police brutality); Alan Feuer, Three Are Guilty of Cover-Up Plot in Louima Attack,
N.Y. TIMES, Mar. 7, 2000, at A1 (describing brutal attack by New York police on Abner Louima,
a Black Haitian immigrant); Jane Fritsch, 4 Officers in Diallo Shooting Are Acquitted of All
Charges, N.Y. TIMES, Feb. 26, 2000, at A1 (reporting on acquittal of police officers in the killing
of Black immigrant, Amadou Diallo).
22. See generally Neil Gotanda, Comparative Racialization: Racial Profiling and the Case
of Wen Ho Lee, 47 UCLA L. REV. 1689 (2000). In large part, the U.S. government’s investigation
of Wen Ho Lee was founded on stereotypes of Asians as “foreigners,” see infra text accompanying
notes 61-62, and enemies of the United States. See ERIC K. YAMAMOTO ET AL., RACE, RIGHTS AND
REPARATIONS: LAW AND THE JAPANESE AMERICAN INTERNMENT 464-74 (2001).
23. See Cynthia Kwie Yung Lee, Race and Self-Defense: Toward a Normative Conception
of Reasonableness, 81 MINN. L. REV. 367, 439 n.283 (1996); see also Suzin Kim, Note, Gangs and
Law Enforcement: The Necessity of Limiting the Use of Gang Profiles, 5 B.U. PUB. INT. L.J. 265,
277-78 (1996).
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To comply with the Constitution, police officers ordinarily must have
individualized reasonable suspicion of criminal conduct before conducting
an investigatory police stop.24 Reliance on racial profiles, based on alleged
group propensities, generally violate the law.25 Unfortunately, the courts
have not been particularly effective in removing race and racism from
criminal law enforcement.26 The Supreme Court has repeatedly failed to
recognize the racial context of criminal law enforcement or the raciallydisparate implications of its decisions. Police departments across the
country also have proven to be resistant to reform.27 Consequently,
investigations and reports of racial profiling continue.28
Racial profiling is just one of many discriminatory aspects of the
criminal justice system adversely affecting African Americans and
Latinas/os. Both groups are demonized as criminals, drug dealers, and gang
24. See, e.g., United States v. Sokolow, 490 U.S. 1, 7 (1989); Terry v. Ohio, 392 U.S. 1, 27
(1968).
25. See United States v. Laymon, 730 F. Supp. 332, 339-40 (D. Colo. 1990) (granting motion
to suppress evidence in case in which drug task force focused enforcement efforts on African
Americans and Latinas/os). But see United States v. Weaver, 966 F.2d 391, 396 (8th Cir. 1992)
(allowing law enforcement to rely on drug courier profile, including race, in questioning person);
United States v. Malone, 886 F.2d 1162, 1164-65 (9th Cir. 1989) (affirming conviction in case in
which Drug Enforcement Administration agents claimed that person fit “L.A. gang member”
profile, including that he was Black). Unlawful race profiling differs factually and legally from
investigatory stops of African Americans after a victim has identified a Black person as the
perpetrator of a crime. For example, in Brown v. City of Oneonta, 221 F.3d 329 (2d Cir. 1999),
cert. denied, 534 U.S. 816 (2001), the court of appeals dismissed a civil rights action against police
for stopping African American men because a crime victim had identified the assailant as Black.
Brown, 221 F.3d at 341. For criticism of police reliance on race in this manner, see Richard Banks,
Race-Based Suspect Selection and Colorblind Equal Protection Doctrine and Discourse, 48 UCLA
L. REV. 1075 (2001); Andrew E. Taslitz, Stories of Fourth Amendment Disrespect: From Elian to
the Internment, 70 FORDHAM L. REV. 2257, 2316-27 (2002).
26. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 125-26 (2000) (refusing to disturb
conviction in which police stopped defendant because individual fled upon seeing police patrol area
known for heavy narcotics trafficking, despite fact that innocent minorities might flee police out
of fear for personal safety); Whren v. United States, 517 U.S. 806, 813 (1996) (holding that, even
if traffic stop was pretextual and based on race, Fourth Amendment requirements satisfied so long
as probable cause existed that the driver had committed traffic infraction); McClesky v. Kemp, 481
U.S. 279, 320-21 (1987) (upholding imposition of death penalty on African American man in face
of strong statistical evidence that State of Georgia administered death penalty in racially
discriminatory manner).
27. See, e.g, infra text accompanying notes 74-79 (describing corruption in Los Angeles
Police Department).
28. See Debra Livingston, Police Reform and the Department of Justice: An Essay on
Accountability, 2 BUFF. CRIM. L. REV. 815, 815-17, 816 n.4 (1999) (stating that U.S. Department
of Justice was reportedly investigating several local police agencies for racial profiling and other
civil rights violations).
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347
members,29 are the most likely victims of police brutality,30 and are
disproportionately represented in the prison population.31
B. Immigration Enforcement
Judicially-sanctioned race profiling is central to the U.S. government’s
enforcement of the immigration laws.32 In United States v. BrignoniPonce,33 the Supreme Court stated that “[t]he likelihood that any given
person of Mexican ancestry is an alien is high enough to make Mexican
appearance a relevant factor” to the Border Patrol in making an
immigration stop.34 Given this encouragement, Border Patrol officers
29. See, e.g., United States v. Weaver, 966 F.2d 391 (8th Cir. 1992) (allowing law
enforcement to rely on drug profile including race in questioning person); United States v. Malone,
886 F.2d 1162 (9th Cir. 1989) (allowing law enforcement to rely on drug profile including race in
questioning person); see also Shelan Y. Joseph, Six Flags Magic Mountain: A Family
Entertainment Park, But Only If You Wear the Right Clothes, 16 LOY. L.A. ENT. L. REV. 359
(1995) (analyzing amusement park’s gang screening policy directed at African American and
Latina/o youth employed by amusement park); Kim, supra note 23 (discussing use of gang profiles
by law enforcement and detrimental impacts on African Americans, Latinas/os, and Asian
Americans); Margaret M. Russell, Entering Great America: Reflections on Race and the
Convergence of Progressive Legal Theory and Practice, 43 HASTINGS L.J. 749 (1992) (analyzing
critical theory to offer insights on how progressive lawyers might challenge amusement park’s gang
profiles that targeted Latina/o and African American youth).
30. See supra note 21 (citing authorities).
31. See Kenneth B. Nunn, “Darden Dilemma”: Should African Americans Prosecute
Crimes?, 68 FORDHAM L. REV. 1473, 1480 (2000) (“African Americans are roughly twelve percent
of the national population. Yet, African Americans constitute more than fifty percent of the inmates
held in prisons and jails in the United States.”); Margaret E. Montoya, Of “Subtle Prejudices,”
White Supremacy, and Affirmative Action: A Reply to Paul Butler, 68 U. COLO. L. REV. 891, 924
(1997) (“[T]he states with the four largest prison populations, California, Texas, New York, and
Florida, all have substantial Latino/a populations. Approximately one-third of the prison
populations of California and New York are Latino/a, although the percentages of Latinos/as in the
general population are twenty-seven percent and thirteen percent, respectively.”); Reynoso, supra
note 14, at 293-94 (offering statistical data on Latina/o rates of incarceration); see also Paul Butler,
Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677,
695-96 (1995) (offering capsule summary of racism against African Americans in criminal justice
system in United States).
32. Arguments for ending the practice are elaborated on in detail in Kevin R. Johnson, The
Case Against Race Profiling in Immigration Enforcement, 78 WASH. U. L.Q. 675 (2000).
33. 422 U.S. 873 (1975).
34. Id. at 886-87. But see United States v. Montero-Camargo, 208 F.3d 1122 (9th Cir. 2000)
(en banc) (disregarding this language in Brignoni-Ponce and holding that Border Patrol cannot
lawfully consider “Hispanic appearance” in deciding to make an immigration stop). Race-based
immigration enforcement stands out as a striking anomaly from the color-blindness in governmental
programs required by the current Supreme Court. See, e.g., Adarand Constructors, Inc. v. Peña, 515
U.S. 200, 235 (1995) (holding that all racial classifications, including those in federal program to
increase government contracting with minority businesses, are subject to strict scrutiny); City of
Richmond v. J.A. Croson Co., 488 U.S. 469, 494 (1989) (holding to the same effect as Peña, 515
348
FLORIDA LAW REVIEW
[Vol. 55
routinely admit that a person’s “Hispanic appearance” contributed to their
decision to question a person.35 Over the years, plaintiffs in lawsuits have
regularly alleged that the Border Patrol relies almost exclusively on race
in immigration enforcement.36 One experienced court of appeals judge
observed that “of all of the cases involving people who were stopped or
searched because of their ‘foreign-looking’ appearance or ‘foreignsounding’ names, we are not aware of any in which the targeted individuals
were Caucasian.”37
Like racial profiling in criminal law enforcement,38 race-based
immigration enforcement fails at a number of levels. Dignitary harms to
Latinas/os lawfully in the United States, including embarrassment,
humiliation, and other attacks on their membership in U.S. society, result
from the unjustified interrogation of their citizenship status.39 The vast
majority (roughly ninety percent) of the Latinas/os in the United States are
lawful immigrants or citizens;40 therefore Latina/o ancestry is not a
particularly good indicia of undocumented status. “That the Border Patrol
targets persons of ‘Hispanic appearance’ almost invariably contributes to
the fact that close to ninety percent of [all] removals [are of] Mexican and
[Latin] American citizens, even though they only constitute slightly more
than one-half of the total undocumented population in the United States.”41
U.S. at 235).
35. See, e.g., United States v. Cruz-Hernandez, 62 F.3d 1353, 1356 (11th Cir. 1995); United
States v. Rodriguez, 976 F.2d 592, 595 (9th Cir. 1992), amended, 997 F.2d 1306 (9th Cir. 1993).
36. See, e.g., Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 (9th Cir. 1999); Nicacio
v. INS, 797 F.2d 700, 701 (9th Cir. 1985); LaDuke v. Nelson, 762 F.2d 1318, 1321 (9th Cir. 1985),
modified, 796 F.2d 309 (9th Cir. 1986); Ramirez v. Webb, 599 F. Supp. 1278, 1280 (W.D. Mich.
1984), aff’d, 787 F.2d 592 (6th Cir. 1986) (per curiam); Illinois Migrant Council v. Pilliod, 540
F.2d 1062, 1065 (7th Cir. 1976), modified, 548 F.2d 715 (7th Cir. 1977) (en banc); Murillo v.
Musegades, 809 F. Supp. 487, 490-91 (W.D. Tex. 1992); see also United States v. Portillo-Aguirre,
2002 U.S. App. LEXIS 22712 (5th Cir. Nov. 1, 2002) (reversing drug conviction in case in which
Border Patrol stopped bus, questioned passengers about citizenship, and searched for drugs);
Norma Ortiz, Comment, The Dangers of Unguarded Discretion: The Unconstitutional Stops of
Buses by Roving Patrols, 2 SCHOLAR 289, 292 (2000) (criticizing Border Patrol practice of stopping
buses in small towns on the U.S./Mexico Border to search for undocumented persons). The Border
Patrol’s undocumented immigrant profile contains class as well as racial elements. See, e.g., Nicacio
v. INS, 797 F.2d 700, 704 (9th Cir. 1985) (discussing INS official’s testimony that an officer might
properly rely, along with Hispanic appearance, on a “hungry look” and the fact that a person was
“dirty, unkempt,” or “wears work clothing”).
37. Orhorhaghe v. INS, 38 F.3d 488, 498 n.16 (9th Cir. 1994).
38. See supra text accompanying notes 16-31.
39. See Johnson, supra note 32, at 711-16; see also MIKE DAVIS, MAGICAL URBANISM:
LATINOS REINVENT THE U.S. CITY 59-65 (2000) (discussing how border enforcement adversely
affects Latinas/os lawfully in United States far from the border).
40. See Johnson, supra note 32, at 708-09 (reviewing statistical data to make this estimate).
41. See id. at 712 (emphasis added).
2003]
349
Finally, race-based immigration enforcement may well contribute to welldocumented Border Patrol abuses of persons of Mexican ancestry.42
Importantly, race-based border enforcement adversely impacts racial
minorities other than Latinas/os. A U.S. General Accounting Office study
of searches by U.S. Customs Service officers showed that Black women
entering the country were more likely to be subject to intrusive searches
than any other group:
Black women who were U.S. citizens . . . were 9 times more
likely than White women who were U.S. citizens to be xrayed after being frisked or patted down . . . . But on the basis
of x-ray results, Black women who were U.S. citizens were
less than half as likely to be found carrying contraband as
White women who were U.S. citizens.43
In one lawsuit, customs inspectors subjected an African American woman,
a U.S. citizen returning from Nigeria who complained about the treatment
of a Nigerian citizen by inspectors, to a full pat down and strip search, and
many other intrusive procedures, including examination of her rectal and
vaginal cavities, in an unsuccessful hunt for drugs.44 Incidents of
discrimination in customs searches at ports of entry are regularly
reported.45
In addition, persons of African ancestry who arrive at airports often are
presumed to be entering the country unlawfully. The Immigration and
Naturalization Service (INS) accused a Black college student, returning
from a visit to Jamaica, with lawful immigration status, of being in the
United States on false documents and strip searched, shackled, and
42. See AMNESTY INT’L, UNITED STATES OF AMERICA: HUMAN RIGHTS CONCERNS IN THE
BORDER REGION WITH MEXICO (1998); AMERICAN FRIENDS SERVICE COMMITTEE, HUMAN AND
CIVIL RIGHTS VIOLATIONS ON THE U.S. MEXICO BORDER 1995-97, SAN DIEGO, CA. (1998),
available at www.afsc.org/border.htm. See, e.g., Murillo v. Musegades, 809 F. Supp. 487 (W.D.
Tex. 1992).
43. See U.S. GEN. ACCOUNTING OFFICE, U.S. CUSTOMS SERVICE: BETTER TARGETING OF
AIRLINE PASSENGERS FOR PERSONAL SEARCHES COULD PRODUCE BETTER RESULTS 2 (2000).
44. Brent v. United States, 66 F. Supp. 2d 1287, 1289 (S.D. Fla. 1999), aff’d sub nom., Brent
v. Ashley, 247 F.3d 1294, 1306 (11th Cir. 2001).
45. See, e.g., David Stout, Customs Service Will Review Drug-Search Process for Bias, N.Y.
TIMES, Apr. 9, 1999, at A18 (reporting claims of racial discrimination by U.S. Customs officers in
searches); Daria MonDesire, Stripped of More Than My Clothes, USA TODAY, Apr. 7, 1999, at 15A
(offering personal account of strip search by U.S. Customs of the only African American woman
on flight). In response to concerns about racial profiling, the Customs Service adopted reforms,
including limiting discretion of officers to conduct searches, that reduced unwarranted searches of
minorities while increasing drug seizures. See Kevin R. Johnson, U.S. Border Enforcement: Drugs,
Migrants, and the Rule of Law, 47 VILL. L. REV. 897, 912-15 (2002).
350
FLORIDA LAW REVIEW
[Vol. 55
detained him.46 At San Francisco International Airport, immigration
officials shackled an African American U.S. citizen returning from Africa,
accusing her of unlawfully entering the United States.47 Similarly, in
Orhorhaghe v. INS,48 the court of appeals found that the INS was wrong
to investigate a person’s immigration status based on his possession of a
“Nigerian-sounding name,” which the court reasoned might serve as a
proxy for race.49 Such abuses fit into a larger pattern of exclusion of
immigrants of African ancestry from the United States.50 The pattern of
racial policing at the border reflects reliance on stereotypes about persons
of African ancestry as lawbreakers, the same preconceptions that contribute
to racial profiling in domestic criminal law enforcement.51
At the border, the law permits racial profiling, just as it does in
immigration enforcement in the interior of the country.52 Indeed, the
Supreme Court has held that the U.S. government has free reign to conduct
warrantless searches without probable cause at ports of entry.53 As the
Court explained, “[s]ince the founding of our Republic, Congress has
granted the Executive plenary authority to conduct routine searches and
seizures at the border, without probable cause or a warrant, in order to
regulate the collection of duties and to prevent the introduction of
contraband into this country.”54 As one court emphasized in rejecting the
challenge of a lawful U.S. immigrant from Nigeria to a search, the
“contention that a border search is not routine [and thus subject to the
46. See Toni Locy, Lawsuit Spotlights Alleged INS Abuses at Airports, USA TODAY, Oct. 18,
2000, at 11A.
47. See Reynolds Holding, Power of INS Agents Outweigh Proof, S.F. CHRON., June 4, 2000,
at 3.
48. 38 F.3d 488 (9th Cir. 1994).
49. Id. at 497-98.
50. See Bill Ong Hing, Immigration Policies: Messages of Exclusion to African Americans,
37 HOW. L.J. 237 (1994) (documenting exclusion of African immigrants to United States through
immigration law and its enforcement); Lolita K. Buckner Inniss, Tricky Magic: Blacks as
Immigrants and the Paradox of Foreignness, 49 DEPAUL L. REV. 85 (1999) (analyzing treatment
of Black immigrants and African Americans in United States); Hope Lewis, Global Intersections:
Critical Race Feminist Human Rights and Inter/National Black Women, 50 ME. L. REV. 309 (1998)
(discussing international human rights issues of Jamaican immigrant women to United States).
53. See Theodore P. Metzler, Thirtieth Annual Review of Criminal Procedure: Introduction
and Guide for Users: I. Investigation and Police Practices: Warrantless Searches and Seizures,
89 GEO. L.J. 1084, 1141-46 (2001) (analyzing case law of border searches); see also United States
v. Zapata-Ibarra, 223 F.3d 281, 281 (5th Cir. 2000) (Wiener, J., dissenting) (contending that U.S.
“government’s so-called War on Drugs and its efforts to interdict illegal immigration” have
eviscerated Fourth Amendment protections in entire border region).
54. United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985) (citation omitted)
(emphasis added).
2003]
351
requirement that a border officer have reasonable suspicion of wrongdoing]
if motivated by ethnicity of a person searched is groundless.”55
Racial profiles in immigration enforcement affect other groups as well.
The U.S. government has harshly treated Arab and Muslim persons, who
had been classified as suspected terrorists, in the name of fighting
terrorism.56 Based on stereotypes of Arabs and Muslims as terrorists,
Congress enacted harsh immigration laws, which the Attorney General has
55. United States v. Ojebode, 957 F.2d 1218, 1223 (5th Cir. 1992) (emphasis added), cert.
denied, 507 U.S. 923 (1993). Similarly, the Supreme Court created the plenary power doctrine to
immunize the substantive Congressional immigration requirement, which at times has shielded
racial and national origin exclusions in the immigration laws. See, e.g., The Chinese Exclusion Case
(Chae Chan Ping v. United States), 130 U.S. 581 (1889). Although much-criticized, see, e.g.,
GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION: IMMIGRANTS, BORDERS AND
FUNDAMENTAL LAW (1996), the doctrine remains good law. See, e.g., Reno v. Flores, 507 U.S. 292,
305-06 (1993); Fiallo v. Bell, 430 U.S. 787, 792 (1977).
56. See generally Susan M. Akram, Scheherezade Meets Kafka: Two Dozen Sordid Tales of
Ideological Exclusion, 14 GEO. IMMIGR. L.J. 51 (1999) (analyzing critically U.S. government’s use
of secret evidence in seeking to remove two dozen Arab and Muslim noncitizens from United
States); Natsu Taylor Saito, Symbolism Under Seige: Japanese American Redress and the
“Racing” of Arab Americans as “Terrorists,” 8 ASIAN L.J. 1, 11-26 (2001) (analyzing treatment
of Arabs as a distinctive “race” and stereotyping them as terrorists with negative immigration
consequences); Michael J. Whidden, Note, Unequal Justice: Arabs in America and United States
Antiterrorism Legislation, 69 FORDHAM L. REV. 2825 (2001) (analyzing how 1996 immigration
reform legislation has resulted in discrimination against persons of Arab ancestry); see, e.g., Al
Najjar v. Reno, 97 F. Supp. 2d 1329 (S.D. Fla. 2000) (reviewing habeas corpus petition of
Palestinian man detained by the U.S. government while facing removal based on secret evidence);
Kiareldeen v. Reno, 71 F. Supp. 2d 402 (D. N.J. 1999) (granting habeas corpus to Palestinian man
detained for over a year based on secret evidence of alleged terrorist activity). After the tragic loss
of life on September 11, 2001, racial profiling of Arab- and Muslim-appearing people reached new
heights as part of the “war on terror.” See Susan M. Akram & Kevin R. Johnson, Race, Civil Rights,
and Immigration Law After September 11, 2001: The Targeting of Arabs and Muslims, 58 NYU
ANNUAL SURVEY AM. L. 101 (forthcoming 2002). For analysis of the civil rights impact of the
federal government’s responses to the events of September 11, see David Cole, Enemy Aliens, 54
STAN. L. REV. 953 (2002); Bill Ong Hing, Vigilante Racism: The De-Americanization and
Subordination of Immigrant America, 7 MICH. J. RACE & L. 441 (2002); Thomas W. Joo, Presumed
Disloyal: Wen Ho Lee, War on Terrorism and Construction of Race, 34 COLUM. HUM. RTS. L. REV.
(forthcoming 2002); Victor C. Romero, Proxies for Loyalty in Constitutional Immigration Law:
Citizenship and Race After September 11, 52 DEPAUL L. REV. (forthcoming 2002); Leti Volpp, The
Citizen and the Terrorist, 49 UCLA L. REV. 1575 (2002); see also Samuel R. Gross & Debra
Livingston, Racial Profiling Under Attack, 102 COLUM. L. REV. 1413 (2002) (analyzing debate
over racial profiling after September 11).
352
FLORIDA LAW REVIEW
[Vol. 55
enforced with vigor.57 Arab and Muslim immigrants, and at times citizens,
have suffered the full legal consequences.
Similarly, persons of Asian ancestry have suffered from race-based
immigration enforcement. In one case, a court ruled that the “appearance
of being oriental” combined with other factors justified continued
observation by an INS officer.58 Similarly, the Board of Immigration
Appeals stated that “Oriental appearance, combined with the past history
of illegal alien employment at [a] particular restaurant, and [an]
anonymous tip” justified INS questioning of restaurant workers about their
immigration status.59 Not that long ago, Portland earned the nickname
“Deportland” because of the rigorous scrutiny by the INS of the
immigration status of Asian tourists, causing a major airline carrier to end
direct flights from Japan to the city.60 Exemplified by the infamous
Japanese internment during World War II,61 Asian Americans, whatever
57. See STEPHEN H. LEGOMSKY, IMMIGRATION AND REFUGEE LAW AND POLICY 735-37 (2d
ed. 1997) (summarizing 1996 changes to immigration law creating special “alien” terrorist removal
proceedings, in which noncitizens could be ordered removed from country based on secret
evidence); see, e.g., Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (declining
review of various constitutional, including First Amendment, challenges to deportation by various
noncitizens who allegedly had provided financial support to Palestinian organizations); see also
Berta Esperanza Hernández-Truyol, Nativism, Terrorism, and Human Rights–The Global Wrongs
of Reno v. American-Arab Anti-Discrimination Committee, 31 COLUM. HUM. RTS. L. REV. 521
(2000) (criticizing the decision in American-Arab Anti-Discrimination Committee on the grounds
that it violated international human rights prohibitions on discrimination on the basis of race,
nationality, and ethnicity); Adrien Katherine Wing, Reno v. American-Arab Anti-Discrimination
Committee: A Critical Race Perspective, 31 COLUM. HUM. RTS. L. REV. 561 (2000) (analyzing
American-Arab Anti-Discrimination Committee decision from Critical Race Theory perspective).
In response to the events of September 11, 2001, Congress passed the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT Act) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (2001), which expanded the
definition of “terrorist activity” under the immigration laws and likely will have an adverse impact
on Arab and Muslim noncitizens. See Akram & Johnson, supra note 56.
58. Cheung Tin Wong v. INS, 468 F.2d 1123, 1127-28 (D.C. Cir. 1972).
59. In re King & Yang, 16 I. & N. Dec. 502, 504-05 (BIA 1978).
60. See Florangela Davila, Hard-Line INS Under Fire in ‘Deportland’, SEATTLE TIMES, Sept.
11, 2000, at B5; Sam Howe Verhovek, Besmirched ‘Deportland’ Wrestles with the I.N.S., N.Y.
TIMES, Aug. 31, 2000, at A14.
61. See Korematsu v. United States, 323 U.S. 214 (1944). See generally Symposium, The
Long Shadow of Korematsu, 40 B.C. L. REV. 1 (1998) (analyzing implications of Korematsu
decision).
2003]
353
their immigration status, long have been classified as foreigners,62 which
makes them of presumptively suspect immigration status.
II. SIMILAR HARMS, COMMON CONCERNS, AND THE RELATIONSHIP
BETWEEN DIFFERENT FORMS OF RACE-BASED LAW ENFORCEMENT
Similar harms to African Americans and Latinas/os flow from the
influence of race in the enforcement of criminal and immigration laws.63
Importantly, race-based law enforcement is part of a larger series of
institutions and cultural practices that relegate racial minorities to a castelike, second-class citizenship.64 Both African Americans and Latinas/os
have suffered serious limitations to their citizenship rights, often finding
those rights manipulated through law.65 The only way that both groups can
move toward full membership in U.S. society is by “de-racing” law
enforcement.
Common concerns suggest the need for political coalitions generally
challenging the use of race in law enforcement.66 The operation of the
criminal justice system deeply shapes the lives of African Americans and
Latinas/os in the United States. These groups, both overrepresented in our
jails and prisons, must work together politically to eradicate the endemic
62. See generally ROBERT S. CHANG, DISORIENTED: ASIAN AMERICANS, LAW, AND THE
NATION-STATE (1999); Keith Aoki, “Foreign-Ness” and Asian American Identities: Yellowface,
World War II Propaganda, and Bifurcated Racial Stereotypes, 4 UCLA ASIAN PAC. AM. L.J. 1
(1996); Natsu Taylor Saito, Alien and Non-Alien Alike: Citizenship, “Foreignness,” and Racial
Hierarchy in American Law, 76 OR. L. REV. 261 (1997). Because of common concerns with
immigration enforcement, political coalitions between Asian Americans and Latinas/os to challenge
arbitrary INS conduct hold promise. See Kevin R. Johnson, Racial Hierarchy, Asian Americans and
Latinos as “Foreigners,” and Social Change: Is Law the Way to Go?, 76 OR. L. REV. 347, 365-67
(1997). But see Rachel F. Moran, What If Latinos Really Mattered in the Public Policy Debate?,
85 CAL. L. REV. 1315, 1321-31 (1997) (questioning whether Asian American and Latina/o
experiences are analogous).
63. See supra text accompanying notes 16-31, 38-42.
64. See generally KENNETH L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND THE
CONSTITUTION (1989) (discussing efforts of various subordinated groups to secure full citizenship
status in U.S. social life).
65. See Guadalupe T. Luna, The Treaty of Guadalupe Hidalgo and Dred Scott v. Sandford:
“Aren’t They All Illegal Anyway?,” in RACE IN 21ST CENTURY AMERICA 297 (Curtis Stokes et al.
eds., 2001) (examining how citizenship rights of Chicanas/os and African Americans have been
manipulated through legal and illegal means).
66. See John Garcia, Coalition Formation: The Mexican-Origin Community and Latinos and
African Americans, in IMMIGRATION AND RACE: NEW CHALLENGES FOR AMERICAN DEMOCRACY
255, 265-74 (Gerald D. Jaynes ed., 2000) (analyzing potential for African American and Latina/o
political coalitions); see also Charles R. Lawrence III, Race, Multiculturalism, and the
Jurisprudence of Transformation, 47 STAN. L. REV. 819, 839-47 (1995) (discussing importance of
multiracial coalitions in seeking to build movement for social change).
354
FLORIDA LAW REVIEW
[Vol. 55
racism in the criminal justice system. Past successful multiracial coalitions
suggest the possibility of future ones.67
African Americans and Latinas/os disproportionately suffer harms from
racial profiling in criminal law enforcement.68 Discrimination against
Blacks and Browns in the criminal justice system are deeply interrelated.
Not coincidentally, many lawsuits challenging racial profiling by police
departments claim that African Americans and Latinas/os suffer
discrimination due to the practice.69 Similarly, race-based border
enforcement not only adversely affects Latinas/os, but also injures persons
of African and Asian ancestry.70 Given the similar injuries caused by the
influence of race on law enforcement, racial minorities have common
interests in removing race from the enforcement calculus.
Because of the disparate racial impacts of the operation of law, criminal
and immigration law scholarship have taken similar intellectual
trajectories. As in the criminal law,71 attention is now being paid to the
racial consequences of immigration law and its enforcement.72 Indeed,
Professor Randall Kennedy treats the use of race in both criminal law and
immigration enforcement as interchangeable.73 This makes sense given that
they are difficult to distinguish intellectually.
The Los Angeles Police Department (LAPD), which has a long history
of violating the civil rights of Latinas/os and African Americans, offers a
case study of the relationship between race-based criminal and immigration
enforcement. During the Depression, the LAPD helped facilitate the forced
repatriation—in the name of reducing the welfare rolls—of Mexican
citizens and immigrants to Mexico.74 Later, during the infamous “Zoot
Suit” riots in which white mobs attacked Mexican “gang” members during
World War II, the LAPD declined to protect the minority crime victims.75
67. See Kevin R. Johnson, Lawyering for Social Change: What’s a Lawyer to Do?, 5 MICH.
J. RACE & L. 201, 226-27 (1999) (providing examples of multiracial coalitions in civil rights
litigation); William R. Tamayo, When the “Coloreds” Are Neither Black Nor Citizens: The United
States Civil Rights Movement and Global Migration, 2 ASIAN L.J. 1, 30-31 (1995) (offering some
examples of multiracial political coalitions).
69. See cases cited supra note 13.
72. See THE PRESIDENT’S INITIATIVE ON RACE, supra note 1, at 90-92; NINETY-EIGHTH
AMERICAN ASSEMBLY, RACIAL EQUALITY: PUBLIC POLICIES FOR THE TWENTY-FIRST CENTURY 1214 (2001); George A. Martinez, Race and Immigration Law: A Paradigm Shift?, 2000 U. ILL. L.
REV. 517.
73. See KENNEDY, supra note 12, at 150-59.
74. See EDWIN J. ESCOBAR, RACE, POLICE, AND THE MAKING OF A POLITICAL IDENTITY:
MEXICAN AMERICANS AND THE LOS ANGELES POLICE DEPARTMENT, 1900-1945, at 84-90 (1999).
75. See Robert S. Chang, Policing the Criminal Justice System: Los Angeles as a SingleCelled Organism, 34 LOY. L.A. L. REV. 843, 845-49 (2001) (analyzing relationship between Los
2003]
355
In 1992, violence sparked by the legal vindication of police officers who
brutalized Rodney King76 was followed by police abuse of African
Americans and Latinas/os, many of whom were rounded up by the LAPD
and turned over to the INS for removal as part of the massive effort to quell
the violence.77 Over the last few years, media attention has focused on the
infamous LAPD Ramparts Division for its systematic violations of the civil
rights of African American and Latina/o youth.78 Part of this unit’s
unlawful strategy involved police cooperation with the INS, including
street sweeps, arrests of Latinas/os, and turning over noncitizens to the INS
who could not be subject to criminal prosecution due to the lack of
evidence, all o

55 U. Fl. L. Rev. 1 (2003)

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