Beyond Law

This edition of Beyond Law attempts to illustrate and capture some of the aforementioned complexities surrounding migration in Latin America. The articles that compose this issue tackle the multiple components and challenges of this exceedingly complex and fascinating topic from a broad and interdisciplinary perspective. Xochitil Bada writes about transnational citizenship for Mexican immigrants, exploring the construction and maintenance of transnational and trans-local social spaces among first generation Mexican trans-migrants living in the United States. Roberta Clariond, on the other hand, describes the current debate concerning immigration reform in the United States. Pablo Asa and Pablo Ceriani describe the immigration reform in Argentina and its efforts to abide by the Mercosur agreements related to immigration flows, and contrast it with the human rights of migrants in that country. Finally, alongside Andreas Feldmann, I describe and examine some worrisome practices that affect the predicament of migrants in the Americas. Our analysis touches on a recent and disturbing trend whereby states have attempted to conceal human rights violations by relying on the manipulation of discourse and the externalization of human rights abuses to other states or private actors.

The study of informal mechanisms of dispute resolution –from community justice in slums to systems of “traditional” justice within indigenous communities— has been at the heart of sociology and anthropology of law in the global South for several decades. Indeed, several of the foundational studies of contemporary sociolegal research in the 1970s theorized and empirically documented practices of informal, nonstate justice as a means to criticize legal theory’s monolithic conception of law as state law, and to offer instead theories of legal pluralism that now are part of our analytical toolkit. In Latin America, the issue of informal justice also became part of the political agendas of grassroots movements and popular organizations and NGOs. From the viewpoint of these movements and organizations, community-based justice offered excluded populations a grassroots, egalitarian alternative to the biased and inaccessible official system of justice. However, the rise of a new wave of law and development programs in the 1990s –now in the form of judicial reform projects funded by multilateral financial agencies— marked a temporary shift of academic and political focus away from informal justice and toward state judicial systems. Providing the intellectual basis for these programs, neo-institutional economics emphasized the importance of developing countries’ “getting institutions right” –notably courts and prosecutorial systems modeled after the U.S. template. Sociolegal scholars and activists in the global South thus found themselves immersed in debates on judicial reform that stood in stark contrast with those on community justice and grassroots empowerment of decades past.

In Latin America, the law has always been seen as an important social and political phenomenon. But the reasons why it is considered important are quite varied. For some, the relevance of law comes from its ability to organize a heterogeneous and complex social reality. From this point of view, then, the law must become strong in order to compensate for social weaknesses. This is the classic institutionalist vision, the best example of which is found in the Latin American constitutional tradition, initiated by the great figures of the independence process at the beginning of the 19th century and currently expressed in the judicial reform programs throughout the region. For others, on the other hand, the law is an important social phenomenon due to its ability to articulate political domination and to consolidate an exclusionary and unjust regime. From this perspective, given that the state does not rely on a strong system of political representation that is capable of pulling society toward the realization of collective ends, the law is strengthened with the purpose of compensating for the weaknesses of the political system. This is the Marxist-inspired vision, the best examples of which were produced during the 1970s and 1980s in numerous studies on alternative law and legal pluralism. Lastly, during the last decade some scholars and activists have concentrated on the analysis of the emancipatory potential that the law can have for some social movements and minority groups. Indigenous and landless peasant movements, for example, have been eloquently analyzed as expressions of this type of vision of law.

In the new millennium, issues of global justice have become central to both scholarly and political debates. In the face of growing inequality within and among countries, questions related to the redistribution of wealth and assets and the criteria and means to best accomplish it are back on the agenda of movements, governments, international institutions and nongovernmental organizations across the world. Largely the result of the criticisms and proposals made by transnational networks of activists and organizations fighting against neoliberal globalization over the last few years, this trend has resulted in lively discussions not only on public policy at the national and global scales, but also on theories of social justice as they apply to issues of redistribution. As shown by the articles included in this issue and the work of such theorists as Amartya Sen, some of the most compelling proposals for redressing the dramatic levels of deprivation around the world today, especially in the global South, result from the combination of rigorous theoretical reflection and deep knowledge of the economic, social and political circumstances that account for the current state of affairs.